ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00032061

Parties:

Complaints:

Date of Adjudication Hearing:  16/03/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

These complaints were referred under Section 8 of the Unfair Dismissals Acts 1977-2015 and Section 39 of the Redundancy Payments Acts 1967-2014 to the Workplace Relations Commission (hereinafter ‘WRC’) on 11th February 2021.  The Complainant was self-represented and the Respondent was represented by Addleshaw Goddard, and three witnesses attended on its behalf.  Legal submissions and a booklet of documentation was also furnished on behalf of the Respondent.  Following delegation to me by the Director, I inquired into these complaints and gave the Parties an opportunity to be heard and to present any relevant evidence.  I heard these complaints by remote hearing on 16th March 2022 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020. The Complainant was assisted with an interpreter in his language.

The changes to procedure under the Workplace Relations (Miscellaneous Provisions) Act 2021 to meet the Supreme Court’s requirements in Zalewski 2021 IESC 24 were outlined.  This hearing was held in public pursuant to Section 8(6) of the Unfair Dismissals Act 1977 and/or Section 39(17A) of the Redundancy Payments Act 1967, as substituted by the Workplace Relations (Miscellaneous Provisions) Act 2021.  The Parties were made aware that their names would be published within this decision.  The legal requirements for each complaint were explained in lay terms.  There is no statutory requirement to elect between parallel complaints referred under Section 8 of the Unfair Dismissals Act 1977 and Section 39 of the Redundancy Payments Act 1967.  The Complainant sought to have this Adjudication Officer determine which is the most applicable.  Having scoped these complaints, the Complainant was primarily pursuing a complaint for non-payment of statutory redundancy and bearing the burden of proof, gave evidence first.  The evidence was taken under oath/affirmation and all of the evidence, documentation and submissions were fully considered.

Background:

In 2020, the Respondent acquired the KFC fast-food franchise which operates across Ireland.  The Complainant had commenced employment with the Respondent’s predecessor in November 2005 and since circa 2009, had worked in its branch at the Clarehall Shopping Centre, Dublin 17 (aka ‘Malahide’) until the Respondent terminated his employment on 31st December 2020 upon its closure.  The Complainant referred a complaint of unfair dismissal pursuant to Section 8 of the Unfair Dismissal Act 1977 citing an unfair redundancy process and a complaint pursuant to Section 39 of the Redundancy Payments Act 1967 for non-payment of statutory redundancy.  The Respondent refutes these complaints and maintains that a fair redundancy process was adopted, and the Complainant unreasonably refused alternative employment disentitling himself to payment.

Summary of Complainant’s Case:

The Complainant gave evidence outlining the basis for his complaints.  He confirmed that he had commenced employment with the Respondent’s predecessor in circa November 2005.  He had initially worked in the Tallaght branch of KFC and commuted from the City Centre where he resided at the time.  He moved to Swords and from circa 2009, worked in the Clarehall Shopping Centre branch of KFC (also known as ‘Malahide’ but referred to as ‘Clarehall’ herein) where he remained until the termination of his employment on 31st December 2020.  At the time, he was earning €260 gross per week for 25-30 hours work.  He commuted to and from work by bus, lift and car-sharing.

On 4th December 2020, the Complainant was informed that the Clarehall branch of KFC was closing.  Thereafter, he attended a number of remote and in-person meetings with management.  Aware that some of the other employees from his branch had received a redundancy payment, he sought similar.  The Respondent had refused and offered him alternative employment in either of its two Blanchardstown branches or several of its City Centre branches.  Blanchardstown is an extra 10km (twice the distance) and the City Centre is an extra 4km away from his home.  He maintained that it took 20 minutes by bus (if on time) for him to travel to the Clarehall branch.  He would have to take two buses taking more than an hour to get to Blanchardstown and a bus to the City Centre would take 45-60 minutes owing to traffic.  He contended that this change in location was unreasonable owing to his difficult personal circumstances as his wife had health issues and was due their second child at the time and the additional distance and/or travel time would prevent him from bringing his children to and from creche.  He had also cited the additional travel costs entailed, the fact that he no longer had access to a car-share arrangement and was unable to drive owing to an eye condition. 

The Complainant outlined his working/travel/childcare arrangements whilst employed at the Clarehall branch.  He would drop his child to creche in the morning before getting the bus to work.  Sometimes he collected his child en route before returning back to work.  Other times, he gave his housemate petrol money for use of a car or lifts to work and/or to collect his child from creche.  This arrangement was no longer available to him for travel to/from the other branches.  When he had raised this difficulty with management at the meetings, he was told that this was a personal matter. 

The Complainant maintained that he had been treated unfairly by the Respondent given his lengthy 14 years’ service and had referred these complaints to the WRC on 11th February 2021.  He felt that he had been “kicked out” and unfairly dismissed and should have received a redundancy payment.  He said that he was seeking “justice” from the WRC and sought compensation by way of remedy.  He confirmed that he was currently earning €800 per month in a part-time retail position in Swords. 

Under cross-examination, the Complainant was asked whether he agreed that the Respondent had conducted a consultation process comprising of three meetings in relation to the closing of the Clarehall branch.  The Complainant responded that these meetings had only taken place after the Clarehall branch had closed.  He was informed that he was incorrect about this as acknowledged by him in an email of 15th December 2020 to the Respondent and in fact the Clarehall branch had been temporarily closed owing to Covid restrictions.  He was asked whether he had previously worked in a City Centre branch and he replied that he had worked in Jervis temporarily a long time ago.  It was put to him that he had his current part-time job in a retail store in Swords since 2005 and had failed to mention this to the Respondent during the consultation process.  He replied that he thought that the Respondent was aware of this as his hours were managed accordingly.  It was further put to him that this was in breach of the written terms and conditions of his employment providing that he was not permitted to take up other employment without prior permission.  He replied that as he only had part-time work with the Respondent, he required the other part-time job and was unaware of this requirement.  He confirmed that he had sometimes worked both jobs on the same day.  He agreed that a move to another KFC branch would have interfered with his other job in Swords. 

The Complainant was also asked about his childcare and transport arrangements.  He clarified that as he had since moved house within Swords, transport from his housemate was no longer available.  He agreed that on occasion, his wife drops their child to creche which is within walking distance.  He confirmed that they had one child and his wife had been pregnant with their second child at the time.  It was put to him that the No. 43 bus he used to travel between Swords and Clarehall in fact has a journey time of 40-60 minutes.  Furthermore, it is a 12-24 minute drive between Swords and Blanchardstown, approximate to the drive time between Swords and Clarehall according to Google Maps.  The Complainant maintained that journey times varied depending upon the time of day.  It was put to him that the bus journey time between Swords and the City Centre was just 25 minutes.  He disagreed and said that it took closer to 45 minutes.  It was put to the Complainant that he had a red Audi car.  He said that he had not owned this car but had been given use of it by his housemate.  He last used it to drive to work in 2019 and thereafter, had got lifts and the bus to and from work. 

The Complainant was also asked about his eye condition which he had first referred to having at the appeal hearing.  It was put to him that on 15th December 2020, he had emailed the Respondent and referred to his wife’s health issues but had not mentioned his eye condition and had not provided any medical report or evidence of same.  It was further put to the Complainant that he had only brought this up because the Respondent had offered him flexible working times to meet the times that he had access to the car.  He was also asked whether his ‘eye condition’ had affected his other job and he replied that although his eye was “very bad” he could continue his other work as it did not entail the same health and safety requirements as when working with food.  When asked for proof, he had provided a screenshot of an eye scan containing no date or details.  He was asked why his immediate response to being offered alternative employment in any of the other branches with flexible hours was: “Full and part time, but nothing is suitable for me.”  He said that this response had been based upon the additional travel time entailed.  It was suggested to him that from the outset he had closed his mind to any alternatives and all that he wanted was a redundancy payment. 

In terms of mitigation, the Complainant confirmed that he was still only working part-time hours with the retail store in Swords and he could not get full-time hours.  He was asked what efforts he had made to find alternative employment and said he had enquired about many other jobs in shops around Swords.  He was unable to say how many enquiries he had made or provide details.  He was asked what other sources of income he was in receipt of since the termination of his employment and confirmed that he was in receipt of a Social Welfare payment on the days that he did not work. 

The Complainant did not make legal submissions but maintained both complaints under Section 8 of the Unfair Dismissals Act 1977 and Section 39 of the Redundancy Payments Act 1967 respectively.

Summary of Respondent’s Case:

Factual Background

The written submission on behalf of the Respondent set out the background giving rise to these complaints.  It was confirmed that the Respondent was incorporated in 2011 and is part of the EG Group, a British retailer that operates petrol stations and fast-food outlets in Europe, the United States and Australia.  The Complainant’s former employer, Herbel Restaurants Limited is part of the Herbert Group and operated the KFC franchise across Ireland.  The Herbert Group was acquired by the EG Group in 2020 and consequently, the Complainant’s employment had transferred to the Respondent under the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003.  In 2020, the EG Group carried out a strategic business review which identified the critical need to reduce costs in the business and improve overall efficiency in the Respondent’s financial performance.  As part of the cost reduction / performance improvement process, a decision was reached to close the KFC branch at Clarehall Shopping Centre, Dublin 17.  The submission outlined the ensuing staff consultation process including three meetings and an appeal hearing with the Complainant.  This was aimed at avoiding his redundancy and offering him alternative employment in a branch in Blanchardstown or the City Centre as detailed in documentation and evidence below. 

Documentation submitted on behalf of the Respondent

The following documentation was submitted on behalf of the Respondent and relied upon at the hearing.  No issue was taken with the provenance and accuracy of same by the Complainant.

- An emailed letter sent on 10th December 2020 from the Respondent to the Complainant informing him that the Clarehall branch was being considered for closure on 1st January 2021 as a result of poor sales and profits and consequently all roles there would cease to exist.  It confirmed that the Respondent would try to identify ways in which his redundancy could be avoided with suitable alternative employment within the EG Group and “Failing this, you may be entitled to redundancy or notice payments should no suitable alternatives be sought;” and an individual consultation process would be conducted.  A second emailed letter to the Complainant on the same date confirmed the reason for the proposed closure and invited him to attend a consultation meeting the following day.

- Minutes of the first consultation meeting with the Area Manager which went ahead on 14th December 2020 as the Complainant had been unable to attend the meeting on 11th December 2020.  The minutes recorded the Complainant as confirming that he was employed with KFC since 2005 and lived in Swords.  The Area Manager informed him that redundancy was the last option for everyone and “we want to do everything we can to help you keep the job.  There are a lot of options available for you.”  When asked how far away the City Centre was for him, he replied: “14km but there is a lot of traffic”.  When asked if he drives or gets a bus, he replied: “Sometimes I drive sometimes I get a bus.”  When asked if he would consider Blanchardstown if he drives, he replied: “It’s still too far.”  The Area Manager informed him that he would be sent a list of vacancies to have a look at and they would meet again on 17th December 2020 to discuss the most suitable option.  He replied: “Full and part time, but nothing is suitable for me.”  She then instructed him to write down the fact that the Respondent had vacancies in Jervis, Parnell, Blanchardstown Shopping Centre and Blanchardstown Drive-Thru and asked him to consider these in advance of the next meeting.  He replied: “My wife is pregnant now, I might need to go home at any time and I’m not sure if I can ask for help in different stores.”  The Area Manager replied that this could be discussed in more detail at the next meeting. 

- An email from the Complainant to the Respondent sent the following day on 15th December 2020, stating that he had been working for (its predecessor) for a long time and stating with reference to the Clarehall branch closing and a move to alternative branches: “…as you know that I have been living in this area about 12 years and my baby going to school.  I drop them to the school and pick from school which is very easy to manage from Malahide KFC.  If I going to other branches it will be difficult for me to manage, also my wife is expecting baby 4th of March 2021.  So for all these reasons I can’t take your offer and I would like to take redundancy.  Hopefully you understand my side.”

- Minutes of the second consultation meeting on 17th December 2020.  The Area Manager opened the meeting by stating: “Firstly, we would like to explain to you that redundancy payment is only the last resort that we would use.  We as a business really want you to keep your job especially now in a pandemic time.  If we look at you right now, you’re travelling 10km and we are asking you to travel 3km more to go to City Centre.  We have a lot of places available to you – Parnell, Westmoreland, Jervis, Blanchardstown SC and DT.  Have you thought about it?”  The Complainant replied: “It is really hard for me because I need to drop my kids to school in the mornings.”  He was then asked: “What about Blanchardstown its 16 min and it takes 11 min for you to get to Malahide.”  He replied: “Well in traffic hour is more.  I’m stressed my wife is pregnant.”  In response, the Area Manager replied: “We understand and we could be flexible in working time for you if you would like.  But asking you to travel 5-10 min more or 3-7km more is not unreasonable from us.  We are going to have another consultation, you need to think about what would be the best place for you to go to because unfortunately redundancy is not an option for you because what we are asking you is to travel is a reasonable distance.”  The Complainant had replied: “I don’t want to work in any other KFC.”  The Area Manager asked him to take his time and talk to his family before meeting again.

- Minutes of the third consultation meeting on 21st December 2020.  The Area Manager asked whether the Complainant had considered everything that had been said.  He replied that he had and that travel to the City Centre would take 19 minutes by taxi and 45 minutes by bus.  She responded: “But you have a car, don’t you?”  He confirmed that he was sharing the car with his housemate but he mostly travels by bus which would take 1 hour and 12 minutes to Blanchardstown.  The Area Manager pointed out: “First time we spoke you said you were driving and now you’re saying you don’t have a car”.  He replied: “I said that mostly I’m driving but I have to take the bus and taxi too.”  He was asked whether he had made a decision and he replied: “I already decided that I want to go for redundancy.”  The Area Manager reminded him that if he refused reasonable alternatives, he lost the right to redundancy payment.  This exchange was repeated.  The Area Manager said he would be offered shifts to suit his car-share.  He then asked about the extra cost of travel to which there is no recorded response.  He also asked why other staff had received redundancy and he had not.  The Area Manager informed him that the staff who had received redundancy had lived close to the branch whilst he already lives 10km away.  The Area Manager said she would email the outcome.

- A emailed letter from the Respondent to the Complainant dated 28th December 2020 confirming that his position was redundant as the Clarehall branch would be closed owing to a lack of profit.  The letter summarised the three consultation meetings (without any reference to the Complainant’s family issues raised) and stated: “As you refused suitable alternatives to redundancy, you are not entitled to redundancy pay.  This letter now serves as written confirmation of the Company’s decision to make your position redundant and your final day of employment is 31st December 2020.”  The letter also confirmed that he would be paid in lieu of his notice and could appeal this decision.

- An email from the Complainant to the Respondent sent on 30th December 2020 (treated as an email of appeal) stating: “I am very upset and stress also when I got your mail.  I had been working in this (KFC) company for 14 years.  I have spent all my respect in this company from last 14 years.  But at present company do not listen my problem.  Even they don’t feel my at present situation.  I have been living in this area more than 12 years and my daughter is going to school and my 2nd baby is expecting on 5th of March 2021.  Also I don’t have a car right now and my wife health is not good also.  You offer me to go different branch because you are thinking from your side but you are not thinking from my side as my position and even don’t show your mankind.  What situation I am now going through?  It is not possible at all to take your offer to continue my job in this circumstance.  And I am asking my right that I deserve as a staff of this company.”  He indicated that did not want to take the matter further and asked for the Respondent’s understanding and grant (of redundancy). 

- Minutes of an appeal hearing between the Complainant and Mr B on 8th January 2021.  At the outset, the Complainant outlined the basis of his appeal stating: “… I am very upset with the company’s decision not to make me redundant and that is why I have appealed.  The company has gave me plenty of alternatives to work in different branches but they are too far from me here and I have a lot of personal issues.  First of all I have been with KFC 14 years.”  After outlining his work history with the Respondent’s predecessor, he stated: “My wife is pregnant, I have to drop my kids to school and I have a problem with my eyes so I cannot drive at the moment.  I have submitted all the documents.”  Mr B then proceeded to ask the Complainant about the various branches that had been offered to him, their distance from his home and the travel time to each by car and by bus.  He repeated his position that they were too far away and/or travel would take too long and would not allow him to collect his children.  Mr B had explained: “Redundancy would always be the last possible option and only if we cannot find a reasonable alternative position or location.”  Mr B had also questioned the Complainant about his ‘eye condition’ and queried how he was able to work with it.  The Complainant replied: “I can’t see all the letters it has been getting worse over the past 6 months plus I have loads of personal problems.  My wife is pregnant.  I can’t drive.  My eyes.”  Mr B asked the Complainant to confirm: “… based on what you are saying can I just ask you to clarify if you are wanting us to make you redundant due to your personal circumstances for example your eyes.”  The Complainant answered in the affirmative and Mr B confirmed that the Respondent would revert.

- An emailed appeal outcome letter dated 18th January 2021 from Mr B to the Complainant upholding the original decision.  The letter summarised the appeal hearing (without any reference to the Complainant’s family issues raised) and stated: “As previously confirmed in your formal notice of redundancy letter dated 28th December 2020, the Blanchardstown site is 3 miles further away from your previous site, and so is deemed a reasonable distance from your home address.  In your three consultation meetings you stated firstly that the distance was too far, in the second meeting that you did not want to work for another KFC, and in the third consultation that you felt the travel was too much by taxi and bus.  You confirmed that you have a car which you share with your housemate.  We previously discussed flexible working if you were to move that would suit your car share, and you responded that you wanted redundancy.  I can confirm that the alternative role offered is considered a suitable alternative, and you have not provided any evidence that it is unreasonable.  As you have refused suitable alternatives to redundancy you are not entitled to redundancy pay.”  The letter also acknowledged that his start date was in fact 2005 rather than 2013 as stated in his termination letter thus giving him an entitlement to an additional €412.46 in notice pay which would be discharged.

- A copy of the Complainant’s part-time contract with the Respondent’s predecessor signed on 27th May 2006, confirming a start date of November 2005, job title as ‘floor staff’ based in Tallaght KFC (requiring transfers to other locations on a temporary basis) and minimum weekly hours of 4 hours.  Relevant to this complaint, the ‘Other Employment’ clause provided: “You are required to devote the whole of your time, attention and abilities during your hours of work to your duties with the Company and may not undertake any other work during this time.  You may not without the prior consent of the Company (which will not be unreasonably withheld) engage in any business or employment which is similar to or competitive with the business of the Company, or which could be considered to impair your ability to act at all times in the best interests of the Company, outside your hours of work for the Company.  If you do engage in any other employment, you must notify the Company in writing of hours worked elsewhere to enable the Company to comply with its statutory obligations including, without limitation, its obligations under the Organisation of Working Time Act 1997 (as amended) and the Employment Permits Act 2003 (as amended) (if applicable).”

- Google Maps and rome2rio schedule setting out estimates of the various travel times.

- Correspondence from Solicitors to the Complainant seeking further particulars of his complaints.

Direct Evidence of Ms A, a Former Employee of the Clarehall KFC Branch

Ms A, a former employee of the Respondent gave evidence confirming that she had worked in the Clarehall branch of KFC with the Complainant for approximately five years before leaving in October 2020.  She recalled that he always drove to work and described the red Audi car that he used.  She said they were also friends outside of work and when they met up with other colleagues for social events, she recalled that he always came by car.  She confirmed that it was known by everyone that he had another part-time job in a retail store in Swords and she had rostered him accordingly.  She was unaware as to whether there was written consent from the Respondent to his other job.  Ms A confirmed that the Complainant usually worked Sunday morning to close, Monday morning to close and some Wednesday mornings.  She said that the Complainant would always oblige when he was required to work extra hours.  He had never mentioned any requirement for flexibility around childcare and this was first mentioned at the hearing.  She was not aware of him leaving work to bring his child home before returning to work.  She was also unaware of any issues with his eyes. 

Cross-examination Evidence of Ms A, a Former Employee of the Clarehall KFC Branch

The Complainant confirmed that the car referred to by Ms A was not his and had been shared with his housemate.  He was licenced to drive it and had used it from 2019-2020, including for driving to work.  He also put it to Ms A that he had not informed her about his private life including childcare.

Direct Evidence of Mr B, an Area Manager

Mr B confirmed that he was employed by the Respondent as an Area Manager and had heard the Complainant’s appeal from the outcome of the consultation process.  He recalled meeting him for his appeal hearing in January 2021 with reference to the minutes.  He confirmed that the only communication received from the Complainant was his email dated 30th December 2020 and he had not received any documentation confirming that he had an eye condition which was first mentioned during that meeting.  Mr B recalled asking: “If you cannot see, how have you been able to work?”  He had replied: “I can’t see all the letters – it has been getting worse over the past six months because I have loads of personal problems.”  He was also asked which of the Respondent’s other stores are the closest for him and replied: “the City Centre stores” and later on had said “Blanchardstown”.  He also said that he could not drive owing to his eye condition and could not travel by bus or car-sharing.  Mr B also confirmed that the Clarehall branch had closed in October 2020 owing to Covid restrictions at which time staff were on layoff / PUP and the decision was made thereafter to close the branch permanently from 1st January 2021.  Other employees had received a redundancy payment as their travel time would have increased by over an hour with a transfer to another branch.  Mr B also confirmed his view that the Respondent’s decision to transfer the Complainant’s employment to another branch in either Blanchardstown or the City Centre was reasonable in circumstances where the travel time was within 5-10 minutes of his existing travel time based upon Google Maps.

Cross-examination of Mr B, an Area Manager

The Complainant put it to Mr B that he had submitted documentary evidence of his eye condition.  Mr B replied that he had checked his email and made enquiries with Ms C, the notetaker for the three consultation meetings (evidence set out below) but nothing had been received from him. 

Direct Evidence of Ms C, a People Capability Coach with HR

Ms C gave evidence confirming that she was a People Capability Coach for the Respondent based in HR at the time of the decision to close the KFC branch at Clarehall Shopping Centre.  She confirmed that the Clarehall branch had been closed owing to Covid restrictions from 22nd October 2020.  At the end of November, the decision was made to permanently close the branch.  A meeting was held between the Area Manager and its staff on 4th December 2020 to inform staff of the closure and this was followed up by an email on 10th December 2020 and a consultation process.  Ms C confirmed that there were three consultation meetings with the Complainant on 14th, 17th and 21st December 2020.  Ms C was the notetaker for all of the meetings and had sent the minutes to the Complainant for his approval.  She confirmed that there were 16 staff at the Clarehall branch, of which 4 staff were identified as eligible for redundancy but only 2 had the requisite two years’ service to qualify for payment.  Ms C confirmed that she had previous experience of the redundancy consultation process and had researched the legislation.  The main factor considered was whether the distance to alternative employment in another branch was reasonable.  The two employees who received a redundancy payment lived within a 5 minute walk away from the Clarehall branch and it was felt that it would be unreasonable to ask them to travel to any of the other branches.  However, the Complainant was already travelling 10km and only a different direction of travel would be required. 

Ms C also recalled that the Complainant had been asked what hours he preferred to do in another branch in the context of offering flexibility.  The minutes of the meeting of 14th December 2021 recorded him as replying: “Full-time or part-time but nothing is suitable for me.”  Ms C also recalled that most of the other employees had been very relieved at being offered alternative employment particularly given the Pandemic when it was much harder to find a job and many had moved to the City Centre.  However, she found that the Complainant was not open to considering any alternatives from the get-go.  He had never mentioned having an eye-condition during any of their three consultation meetings.  She recalled that his main issue was collection of his children from school.  He had not mentioned his second job.  He had said that he may need to return home to collect the children before returning to work in the future as opposed to doing this currently.  He was offered alternative locations with whatever hours he wanted.  He had been reassured that flexibility would be offered by the Respondent and he would be given the hours he could do to accommodate child collection and to meet the times when he had access to car-sharing.  Regarding the Complainant’s reference to ‘children’ in the plural when in fact he had one child at the time, Ms C said she had not asked but was under the impression that he had more than one child with another child on the way.  She confirmed that there were no carparking fees for staff in Blanchardstown whilst a €5 fee applied in the City Centre.  She also confirmed that the Complainant had never had any issues with the Respondent or its predecessor and there had been a close-knit working environment in Clarehall.

Cross-examination of Ms C, a People Capability Coach with HR

The Complainant asked Ms C whether she had received medical documentation vouching his eye condition after his appeal hearing.  Ms C confirmed that he had not raised an eye condition during the initial process, and she had checked her email and had never received any such documentation from him.  The Complainant took issue with the Respondent’s estimates of the travel times by car and bus.  He said he had not taken up the alternative employment owing to the increase in distance.  He also said he had been very upset because he had worked for the Company for more than 14 years and whilst other employees with less service were paid redundancy, he did not receive similar. 

Legal Submissions on behalf of the Respondent – Complaint of Unfair Dismissal - CA-00042493-001

On behalf of the Respondent, it was submitted that the Complainant had been properly dismissed on the ground of redundancy in accordance with Section 6 of the Unfair Dismissals Act 1977 as cited in the findings below.  Specifically, Section 6(4) provides that a dismissal that results wholly or mainly from the redundancy of the employee shall not be an unfair dismissal.  Section 6(3) of the Act provides for the circumstances in which dismissal in a redundancy situation can constitute an unfair dismissal.  In his WRC complaint form, the Complainant alleged that he had not been consulted by the Respondent before the closure of the Clarehall KFC branch.  However, the Complainant had acknowledged that the branch had not yet closed and had been afforded an extensive consultation process beforehand.  Redundancy was the only reason for the termination of his employment and as such his dismissal was not an unfair dismissal pursuant to the Unfair Dismissals Act 1977.

It was further submitted that the Complainant had not provided sufficient particulars of any financial loss claimed or given sufficient evidence of his efforts to mitigate any such losses as per Sheehan-v- Continental Administration Company Limited UD858/1999 and Matthews -v- Deeside Agri Services Limited ADJ-00031177 which stipulated the efforts that an employee should make to mitigate losses.  He could not remember how many applications he had made or to whom he had applied for work.  He could have taken up work in the food service industry which continued to operate during Covid.

Legal Submissions on behalf of the Respondent – Non-payment of Redundancy - CA-00042493-002

On behalf of the Respondent, the provisions of Section 7 and 15 of the Redundancy Payments Act 1967 were set out and are cited in full in the findings below.  It was submitted that the Complainant’s position in the Clarehall branch had properly been made redundant pursuant to Section 7(2) of the Act and he had disentitled himself to statutory redundancy payment by unreasonably refusing suitable alternative employment under Section 15 of the Act.  In this respect reliance was placed upon a decision of the English EAT in Cambridge & District Co-operative Society Limited -v- Ruse [1993] I.R.L.R. 156 which considered the similarly worded provisions of the British legislation, holding that the question of “the suitability of the employment is an objective matter, whereas the reasonableness of the employee’s refusal depends on factors personal to him and is a subjective matter to be considered from the employee’s point of view”.  In the subsequent English EAT case of Hudson -v- George Harrison Limited [2002] UKEAT 0571- 02, the Tribunal stated that the “test is not wholly subjective, but it includes taking into account those personal circumstances.”  

The Respondent has acted in a bona fide manner throughout the process.  It was clear from the commencement of discussions with the Complainant that the Respondent wanted to identify alternatives to making him redundant and had fully engaged with him.  The Complainant was offered flexible working hours if he accepted a position in one of five alternative KFC branches located between 8km and 16km from the branch in Clarehall.  He was offered hours to correspond with the days on which he could drive to work.  At the first consultation meeting on 14th December 2020, he confirmed that he sometimes took the bus to work and he sometimes drove to work.  At the third consultation meeting on 21st December 2020, he had said that he shares the car with his housemate but travels to work by bus most of the time.  The Complainant then informed Mr B at the appeal hearing on 8th January 2021 that his vision had been getting progressively worse over the last six months which not only prevented him from being able to drive, but also affected his ability to read. 

At the material time, the Complainant resided in Carlton Court, Swords.  According to Google Maps, if he was to leave his home at 8.30am on a weekday and drive to the branches in Blanchardstown via the M50, it would take him between 18 and 24 minutes.  His journey to the branch in Clarehall took him between 14 and 24 minutes by car, departing at 8.30am on a weekday.  A journey by bus on a weekday from Swords to the City Centre would take between 22 and 30 minutes according to a rome2rio.com estimate.  It was contended that it was only after the Respondent offered to roster the Complainant’s hours for the days on which he could drive to work that he brought it to the Respondent’s attention that he could not drive owing to a purported visual impairment.  It was submitted that considering the proximity of the alternative branches to the Complainant’s workplace and the lengths to which the Respondent offered to accommodate his personal circumstances with its rosters, the proposed move to any of the alternative locations did not constitute a change of such a magnitude as to warrant a reasonable refusal of same by him. 

In oral submissions, reference was made to the reliance on the UK authorities on similarly worded legislation by the WRC and Labour Court in this jurisdiction and test that had been developed over the years to establish the factors that must be considered in deciding whether a refusal of alternative employment is reasonable.  In Byrne -v- Summeridge Limited RPD211 (also involving a change of location), the Labour Court had laid down a two-limb test being, firstly, the suitability of the offer of alternative employment made by the employer; and secondly, whether the employee’s decision to refuse such an offer was reasonable in all the circumstances.  In finding that the employer had satisfied the first limb, the Labour Court was cognisant that the employee had been offered compensation.  Likewise in the instant case, the Respondent had offered the Complainant flexible working hours to meet the times when he had access to a car.  Whilst the Labour Court had held that it was reasonable for the employee to refuse the proposed move in circumstances where he lived within walking distance of his existing employment, in the instant case, the drive time to Blanchardstown (including free parking) was similar to Clarehall and was therefore reasonable.

In another recent case of Conn -v- Cosy Tots RPD219, the Labour Court held that where the travel was across a city, the issue is less about the physical distance to the new location than about the length of time it would take to cover that distance.  In this respect, although the distance to Blanchardstown is 10km further away from his home, the drive time is similar without any tolls.  The travel time for the Swords Express from Swords to the City Centre is between 22-25 minutes at €4 per fare or the Complainant could drive there for a €5 parking fee.  If he had moved to either of the Blanchardstown or City Centre branches, he would have secured alternative employment for a similar travel time just as further Covid restrictions were being imposed.  However, it was contended that the Complainant had no intention of accepting any alternatives stating that there was nothing suitable for him.  He was invited to offer alternative ways to avoid redundancy and he did not take up that invite.  He had devised various excuses for refusing alternative locations varying from the commute to having to drop his children to creche.  When the Respondent suggested a possible remedy by fixing the roster to meet his car availability, he then devised an excuse about an eye condition at the appeal stage.  When asked for proof, he provided a screenshot of a scan containing no date or details.  He was also in breach of his contract by holding another job without any prior consent and was conscious that taking up work in another location may have adversely affected his second job.  It was submitted that both limbs of the test as set out in Summeridge had been met.

Overall and in conclusion, it was submitted that the Complainant’s dismissal arose for reasons of redundancy because, having performed a strategic business review, the Respondent decided to close the Clarehall branch.  Consequently, and along with the other staff, the Complainant’s requirement to work there had ceased.  Following an extensive consultation process including an appeal, the conclusion was reached that the Complainant had unreasonably refused the alternative roles offered to him at other KFC branches in the Blanchardstown and the City Centre and thus had disentitled himself to a redundancy payment.  Consequently, this complaint is not well-founded.

Findings and Conclusions:

Complaint of Unfair Dismissal - CA-00042493-001:

The Complainant has referred dual complaints of unfair dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977 and non-payment of statutory redundancy payment pursuant to Section 39 of the Redundancy Payments Act 1967.  It is noted that he was representing himself and did not have the benefit of professional advice.  There is no statutory requirement to elect and he has sought to pursue both complaints, for the Adjudication Officer to determine the most applicable.  In the instant case, the Complainant has not challenged the legitimacy of the Respondent’s business review process giving rise to the closure of its KFC branch in Clarehall Shopping Centre where he worked or his selection for redundancy.  His primary complaint relates to his view that he reasonably refused the alternative employment offered and should have received statutory redundancy payment. 

In this respect, Section 6(1) of the 1977 Act provides that “a dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  Section 6(3) provides for circumstances that can constitute an unfair dismissal arising from a redundancy situation: “without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either- (a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or (b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”  Section 6(4) further provides that: “without prejudice to the generality of section 6(1), a dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal if it results wholly or mainly from... (c) the redundancy of the employee”.  Section 7(2) of the Redundancy Payments Act 1977 also defines redundancy for the purposes of that Act and the circumstances in which a legitimate redundancy situation arises. 

In most cases the facts underpinning dual complaints will be diametrically opposing i.e. either an employee was unfairly dismissed or they were fairly dismissed on redundancy grounds but did not receive their statutory redundancy payment.  Often it is unclear to an employee which scenario arises and much will depend upon what information is available to them and how the dual complaints are defended.  It should also be noted that whilst a year’s continuous service is required to pursue a complaint of unfair dismissal under the Unfair Dismissals Act 1977, two years’ continuous service is required to pursue a complaint for non-payment of statutory redundancy under the Redundancy Payments Act 1967.  In circumstances where the Complainant has not challenged the fact of redundancy and/or his selection for same, I am satisfied that there is no evidential basis for the complaint of unfair dismissal.  I find that the complaint being pursued herein is in fact an appeal against the Respondent’s decision not to pay the Complainant statutory redundancy payment in circumstances where it deemed his refusal of alternative employment offered to be unreasonable thereby disentitling him to payment.  Specifically, Section 39(15) of the Redundancy Payments Act 1967 provides: “Any employer who is dissatisfied with a decision given by the Minister in relation to a rebate or with any decision given by a deciding officer in relation to any question specified in section 38 (1)(e) or 38(1)(f), or any employee who is dissatisfied with a decision given by a deciding officer under section 38 or with any decision of an employer under this Act may appeal to the Director General against the decision; provided however, that the Director General shall not be competent to decide whether or not an employee is or was at the material time in employment which is or was insurable for all benefits under the Social Welfare Acts.”  In addition to providing for various appeals by employers and employees relating to redundancy, this provision enables an employee to appeal against any decision of an employer under the Act to the WRC.

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this complaint of unfair dismissal.  Based upon the aforesaid, I find that the Complainant’s dismissal resulted wholly or mainly from redundancy and consequently, he was not unfairly dismissed.

Complaint of Non-Payment of Statutory Redundancy - CA-00042493-002:

The issue for determination is whether the Complainant has unreasonably refused the Respondent’s offer of alternative employment and has thus disentitled himself to statutory redundancy payment under Section 15 of the Redundancy Payments Act 1967.  It is firstly necessary to set out the relevant statutory provisions and caselaw before applying same to the factual matrix adduced.

Section 7 of the Redundancy Payments Act 1967 provides for a general right to redundancy payment where an employee is dismissed by reason of redundancy and meets the requisite criteria as follows:

“General right to redundancy payment

7- (1)  An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided- (a) he has been employed for the requisite period, and (b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2)  For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to-

(a)  the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)  the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c)  the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)  the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e)  the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,…”

Section 9 of the Redundancy Payments Act 1967 defines ‘dismissal’ for the purposes of the Act:

“Dismissal by employer

9.- (1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if- (a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or…”

Section 15 of the Redundancy Payments Act 1967 provides for an employee’s disentitlement to redundancy payment for refusing to accept an offer of alternative employment as follows:

“Disentitlement to redundancy payment for refusal to accept alternative employment

15.-(1)  An employee F34 shall not be entitled to a redundancy payment if -

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if -

(a) his employer has made to him in writing an offer to renew the employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.

(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section.”

As stipulated above, Section 15(1) of the Redundancy Act 1967 provides for a scenario whereby an employer offers renewal of an employee’s contract or a new contract which does not differ from the pre-existing contract and takes effect on or before the termination of that contract.  Section 15(2) provides for a scenario whereby an employer offers in writing, renewal of an employee’s contract or a new contract which differs wholly or in part from the pre-existing contract, subject to the proviso that it constitutes suitable employment and takes effect within four weeks.  Given that the contract offered herein required a change in location, Section 15(2) is applicable to the instant case.

In terms of interpreting these provisions, the English EAT has provided useful guidance in relation to the appropriate test in Cambridge & District Co-operative Society Ltd -v- Ruse [1993] I.R.L.R. 156 at 158, when considering the similarly worded provisions of the British legislation in relation to the reasonableness of a refusal of alternative employment as follows: “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”. 

The Irish employment fora have followed suit with the UK position.  In the recent determination in Byrne -v- Summeridge Limited (2020) RPD211 (and related claims with slightly varying facts against the same employer) relied upon by the Respondent herein, the Labour Court had to determine whether in line with Section 15 of the Redundancy Payments Act 1967, the refusal by the Complainant to accept the offer of work in a different location was unreasonable.  In that case, the complainant was a bartender.  The employer had proposed a permanent transfer to a bar 12.6 km away from his previous employment in respect of which he lived walking distance away.  He was offered a single payment of €500 gross and a €550 One4all gift voucher.  This would have resulted in an additional two-hour commute and either Luas or car-parking fees.  Applying the two-limb test from Cambridge, the Labour Court found that the change of location proposed was a change of such magnitude, when considered from the complainant’s subjective perspective, that the Court had to find that his refusal to accept the move to the new location was not unreasonable as follows:

“In determining the final aspect of the within appeal, the Court is required to consider two issues: (i) the suitability of the offer of alternative employment made by the Respondent to the Complainant; and (ii) whether the Complainant’s decision to refuse such an offer was reasonable in all the circumstances.  In Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156 the English EAT, when considering the similarly worded provisions of the British legislation, said, at page 158, that the question of “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”.

The Court accepts that the Respondent acted at all times in a bone fide manner in their attempts to retain the Complainant in the Respondent’s employment by endeavouring to offer an element of compensation for the inconvenience of transferring to a new location.  To that extent, the Court determines that the Respondent, from an objective perspective, satisfies the first leg of the test set out by the English EAT in Cambridge.

However, having considered the Complainant’s evidence, the Court is equally of the view that the change involved in moving from working in Liffey Valley where the Complainant could get to and from work in a matters of minutes with no additional costs, to working in a city centre location with the additional commute times, related costs and the difficulty of getting home after his late shifts when public transport would not be available, is a change of such magnitude, when considered from the Complainant’s subjective perspective, that the Court has to find that his refusal to accept the move to the Harbour Master Bar was not unreasonable.

There was no job available for the Complainant in his established place of work.  The alternative offered to him would have necessitated an unreasonable additional daily commute and costs for him. In all the circumstances, the Court, therefore, finds that the Complainant is entitled to a statutory redundancy payment…”

The Labour Court adopted a similar approach in its determination of the same issue in Conn -v- Cosy Tots (2021) RPD219 (and related claim) also involving a change in location as relied upon by the Respondent herein.  The complainant was employed as a cook in a creche in Dublin 14 which her employer was closing down for commercial reasons and was offered an alternative position located in Dublin 2 with the same terms and conditions.  The complainant maintained that the new location did not represent reasonable alternative employment for various reasons including her particular personal circumstances and increased travel time whilst the respondent sought to argue otherwise. 

The Labour Court observed: “Contrary to s. 15(2) of the Act no alternative offer was made in writing to the Complainant until after the termination of her employment.”  After setting out the relevant provisions of the Redundancy Payments Act 1967, it cited the following UK caselaw based on similar:

“In the UK case of Hudson v. George Harrison Ltd. EAT 0571/02,which considered almost identical provisions in British law, it was held that determining the reasonableness of an offer ‘involves taking into account the personal circumstances of the employee’ and the finding referenced the finding in Executors of Everest v. Cox (1980) ICR 415.  This finding has been approved as well established in Irish law, see Regan and Murphy Employment Law (Bloomsbury, 2nd Edition:2017) para. 19.123.

The Court is of the view that, in the circumstances of the city, the issue is less about the physical distance between Nutgrove and Barrow St. than about the length of time it would take to cover that distance.  It is this factor that leads the Court to the view that it was reasonable for the Complainant to decide that the offer made was not one that constituted suitable alternative employment.”  Having so found, the Labour Court found it unnecessary to consider the other reasons cited.

Likewise, I must assess the factual matrix to determine whether the Complainant’s refusal of alternative employment offered in either the Blanchardstown or City Centre locations was reasonable in line with Section 15(2) of the Redundancy Payments Act 1967 and the two-limb test.  This requires consideration of the factual matrix adduced to determine whether his refusal was reasonable or not.  The diametrically opposing positions of the Parties are summarised as follows:

The Complainant maintains that he reasonably refused the alternative employment offered in KFC branches located in Blanchardstown or the City Centre and was entitled to redundancy payment because (a) both locations were too far away by car or by bus, he did not accept the Respondent’s estimates of travel times suggesting a marginal increase in travel time and additional travel costs would be incurred; (b) a move to a work location further away from home was untenable given his personal circumstances- he had responsibility for bringing his children to/from creche, his wife had health issues and delivery of their second child was imminent; and (c) he no longer had access to a car-share arrangement and in any event, owing to a worsening eye-condition he was unable to drive.

The Respondent maintains that the Complainant’s role at the Clarehall branch was properly made redundant and following an extensive consultation process, he unreasonably refused suitable alternative employment in its KFC branches located in Blanchardstown or the City Centre.  The Respondent had offered flexible working hours to meet his family/travel arrangements and the additional travel time entailed by a change in location was marginal.  He had declined to consider any alternatives from the outset giving various reasons and once solutions were proposed, he cited different reasons including being unable to drive owing to an eye-condition.  Furthermore, he was employed in another part-time job in breach of his contract which would have been impacted.

Firstly, there is no dispute between the Parties that the Respondent had ceased to carry on its business in the place where the Complainant was so employed and accordingly, his position was redundant and his contract there was terminated.  Accordingly, and as set out above I am satisfied that he was dismissed on the ground of redundancy pursuant to Section 7(2)(a) and 9(1) of the Redundancy Payments Act 1967 and as such had a general entitlement to statutory redundancy payment.  However, this is subject to Section 15(2) of the Act which provides that an employee shall not be entitled to a redundancy payment if the criteria thereunder are met.  Applying the two-limb legal test to the factual matrix adduced herein, I find on the balance of probabilities as follows:

(1)  Had the Respondent’s offer of alternative employment in its KFC branches in Blanchardstown or the City Centre (a) been offered in writing as required under Section 15(2)(a) of the 1967 Act and (b) included some form of compensation to defray the additional fare or fuel costs that would inevitably be incurred, this offer would have met the first limb of the test as being objectively suitable. 

In relation to (a) and as evident from the minutes furnished, the offer was made verbally at the consultation meetings and the specifics including undertaking to offer flexible hours according to the Complainant’s personal requirements were never confirmed in writing.  Whilst an offer of a renewal of, or new contract without any change to the terms and conditions is not required to be put in writing under Section 15(1) of the Act, it is a legal requisite where there is such a change, being a change in location in the instant case.  Clearly, the legislator has put this safeguard in place where a change in terms and conditions is proposed and hence there should be strict adherence to same. 

In relation to (b) it is noted that had the Complainant taken up the offer of alternative work in either Blanchardstown or the City Centre, had access to a car and been rostered to commence and finish work at times when traffic was light, the additional travel time would not have been significant.  However, a move to either location would have resulted in additional travel expenses whether by fare (two buses to Blanchardstown or a longer bus into the City Centre) or through fuel costs for the additional distance.  This would have represented an ongoing loss to any employee but would have been particularly significant for the Complainant who was on close to a minimum wage.  However, when the Complainant raised the issue of cost at the third meeting, there was no proposal put in relation to the defrayal of same unlike the position in Byrne -v- Summeridge Limited (2020) RPD211. 

(2)  Even if the first objective limb was met, applying the second subjective limb and the factors personal to the Complainant, I find that his refusal of the Respondent’s offer of alternative employment in Blanchardstown or the City Centre was not unreasonable based on the following:

From the outset of the consultation process, the Complainant referred to personal difficulties as influencing his decision to refuse a move of work location and seek statutory redundancy payment.  Although the extent to which he bore responsibility for collecting his child was questioned, it was never put in issue that his wife had health issues and was expecting their second child imminently.  It is clear from the documentation submitted that there was no real consideration of these concerns.  The Respondent had also adopted a fixed position being that the marginal additional travel time deemed a refusal of a move to either location offered unreasonable.  Both Parties were intransigent in their respective positions.  The second limb of the test requires the employer’s consideration of the employee’s particular personal circumstances.  Each employee will present with different circumstances, and nothing is known of those of the other staff who took up an offer of alternative location.  Given that the Complainant had a young child with delivery of a second child imminent coupled with concerns around his wife’s health, it is understandable that he would be reluctant to work further away from home.  In the circumstances, I am of the view that the additional distance and/or travel time entailed was such that flexible working hours would not have allayed these concerns and hence his refusal of the alternative employment offered was not unreasonable.

The Respondent has maintained that the Complainant would not contemplate a move to any alternative locations from the very outset of the consultation process and was fixated on receiving redundancy payment.  It is thus unfortunate that he was never advised by the Respondent that he could have tried out any of the proposed locations for a period of up to 4 weeks without losing his entitlement to redundancy payment under Section 15(2A) of the Redundancy Payments Act 1967. 

Regarding the credibility issues contended for on behalf of the Respondent, I am satisfied that the Complainant raised the issue with his eye condition at the appeal stage after there was no real engagement by the Respondent with his other personal circumstances and nothing turns on same. 

Having set out the ‘Other Employment’ clause of his contract above, there was no requirement to obtain the consent of the Respondent’s predecessor to alternative employment in writing.  Whilst hours worked were required to be notified in writing, it was the Respondent’s own evidence via Ms A that in fact management was well aware of his other part-time job and rostered him accordingly.  No requests for his hours to be put in writing were ever made.  Hence, there is no substance to the contention that the Complainant’s part-time position in a store in Swords was in breach of his contract.  It is also noted that the Complainant had a lengthy unblemished 14 years of service with the Respondent and on Ms A’s evidence had always obliged when additional hours were required.

Finally, it should also be noted that there is no question that the Respondent and its staff acted in a bone fide manner at a difficult time and had a comprehensive consultation process in place.  Additionally, an impressive defence to these complaints was put forward on its behalf.  However, each case will turn on its own particular facts.  This is a marginal decision tipped in favour of the Complainant owing to non-adherence to the statutory requirement to put the offer of alternative employment in writing, the fact that no offer was made to defray the additional travel expenses, the fact that he was not made aware that he could try out the alternative location for four weeks without losing his entitlement to redundancy payment and his particular personal circumstances.

Decision:

Section 39 of the Redundancy Payments Acts 1967-2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under the Acts.  Based upon the aforesaid reasoning, I am satisfied that the Complainant reasonably refused the offer of alternative employment and the employer’s decision to the contrary is hereby overturned.  I direct payment of redundancy by the Respondent to the Complainant under the Redundancy Payments Acts as follows:

Start Date: 1st November 2005

Termination Date: 31st December 2020

Gross Average Weekly Pay: €260 per week

Any award under the Redundancy Payments Acts 1967-2014 is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts. 

Dated:   31-05-2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Section 15(1) and (2) of Redundancy Act 1967 - disentitlement to statutory redundancy payment for unreasonable refusal to accept alternative employment - two-limb legal test to determine whether refusal unreasonable - Cambridge & District Co-operative Society Ltd -v- Ruse [1993] I.R.L.R. 156 - Byrne -v- Summeridge Limited (2020) RPD211 - Conn -v- Cosy Tots (2021) RPD219