FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES: WOODIES DIY LIMITED - AND - MS YVONNE DEVLIN DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S) ADJ-00034829, CA-00045928-001 This is an appeal under the Redundancy Payments Acts, 1967-2014. Ms. Devlin, ‘the Complainant’, was employed by Woodies DIY Ltd., ‘the Respondent’ from 2011 to 2021. In February 2021, the E-store section of the Respondent’s Tallaght, Co. Dublin branch, where the Complainant worked, was re-located to Drogheda, Co. Louth. The Complainant was offered the option of transfer with her work or an alternative role in the Tallaght branch. Following the utilisation of the Respondent’s Grievance Procedure by the Complainant and a subsequent disciplinary process, the Complainant was dismissed on 30 July 2021. The Complainant lodged a complaint under the Acts with the Workplace Relations Commission, ‘WRC’. An Adjudication Officer, ‘AO’, decided that the complaint was not well founded. The Complainant appealed to this Court. Summary of Employer arguments. In February 2021, the E-store was re-located to Drogheda. The Complainant was given the option of transferring, where she could continue to work a Monday to Friday pattern, or she could remain in Tallaght and work the standard hours, which entail being flexible and working evenings and weekends, as provided for in her contract of employment. The Complainant chose to remain in Tallaght. However, she refused to work the hours provided for in her Terms and Conditions. In March 2021, the Complainant invoked the Respondent’s Grievance Procedure highlighting concerns regarding the change in her work hours, short notice of role change and the lack of a redundancy offer. The outcome of the process in April 2021, did not uphold the complaints re notice and lack of redundancy offer. In relation to work hours, the outcome was that the Complainant could either avail of a 12 month transition period to facilitate her return to store working hours or she could undergo interview for a position in the Accounts Payable Office working Monday to Friday in her current building on an increased salary plus a bonus scheme. The Complainant declined both offers. She did not appeal the outcome. In June 2021, disciplinary procedures were initiated for an alleged failure by the Complainant to work an evening shift. In the course of these proceedings, the Complainant corresponded with Mr. David Nally, HR Manager, who reiterated the Respondent’s position and informed her that four admin. positions had since been advertised with her desired hours. He also advised that a further refusal by the Complainant to work the required hours would be overlooked and that she would be given another chance but that any further refusal to comply might lead to suspension pending a disciplinary investigation. The Complainant continued to refuse to work the required hours and disciplinary proceedings were taken on four occasions for insubordination and refusal to adhere to working rostered hours. An incremental sanction was imposed on each occasion, culminating in a Final Written Warning being issued on 2 July 2021 and 5 days’ suspension on 15 July 2021. The Complainant was dismissed on 30 July 2021. In light of the above, the provisions of the Acts do not apply in this case. Summary of Complainant arguments. The Complainant worked Monday to Friday, 8am to 5pm for seven of the ten years that she worked for the Respondent. She had a verbal agreement with management to do so. When the Covid pandemic hit, the E-store became very busy and the Complainant continued to work during lockdown. The Complainant and her colleagues were re-assured by a manager that their roles would be safe even if the store moved to Drogheda. Then, on 1 February they were told that the store would be moving on 5 February. The options given were to go to Drogheda, with no travel allowance and adding two hours to the working day, or to remain in the Tallaght store with hours changing to late nights and week-ends. The Complainant explained that she had commitments and could not change her hours. The only option for the Complainant was to remain in Tallaght. Redundancy could have been an option The Complainant did not feel that she had the skills and experience to apply for the Accounts Payable role. Witness evidence. Mr. David Nally Mr. Nally is the Head of HR for the Respondent. At the time in question, he was HR Manager. The witness explained that the pandemic had pushed the Respondent’s on-line strategy forward by about 5 years. Initially, the response had been to set up 5 E-store ‘hubs’ but there had been stock issues and it had been necessary to centralise, which had been done in Drogheda. The witness said that the Complainant had initially accepted an alternative role in the Tallaght store, where she was required, like all other customer facing colleagues, to work the flexible hours. The Complainant had stated that she had a verbal agreement but this could not be established as she said that the manager concerned was no longer in the business. The witness said that the Complainant had never given a reason as to why she could not work the flexible hours, it was more a case that simply she was not working them. The Respondent was satisfied that she had what was required to take up one of two Accounts Payable roles that had come to be available and they had paused the recruitment process to allow her the opportunity to apply without the roles being advertised. In effect, she had been ‘given the nod’. She had never given any reason as to why she chose not to avail of the chance offered. The witness said that the Complainant had been offered a role in the same location with an extra €4k per year and had turned it down. The Complainant had no questions for the witness. The witness said that the Respondent never made anybody redundant. The applicable law. Redundancy Payments Acts
Deliberation. In a parallel case, the Court has upheld as fair the dismissal of the Complainant due to her conduct. Accordingly, as per s.14 set out above, she cannot be entitled to the coverage of the Acts. In any event, the complaint under the Acts appears to have arisen due to a misconceived interpretation of the Acts. The Complainant was not made redundant. The role that she performed was re-located and she was offered the option to re-locate with that role or to take up another role in her existing location within the terms of her contract of employment. While the above summary of arguments and evidence expands on these facts, even if the Complainant had not been dismissed due to her conduct, the issue of redundancy had never arisen in the circumstances of the case and the terms of the Acts are inapplicable. Determination. The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. | ||||||||||||||||||||||||||
