Complainant

Respondent

Parties

Fiona  Rabbitte

Lloyds Pharmacy Ireland Limited

Representatives

Mr. Paul Twomey BL, instructed by Myles Staunton & Co Solicitors

Mr. Brendan McCarthy, Stratis Consulting

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00051286-001

23/06/2022

The Complainant commenced employment with the Respondent on 24th November 2003. While the date and fact of termination are in dispute, the Complainant has submitted that her employment terminated on 5th May 2022. The Complainant was a full-time permanent employee, in receipt of a average weekly wage of €1,853.19

On 23rd June 2022, the Complainant referred the present complainant to the Commission. Herein, she alleged that in circumstances whereby the Respondent closed the pharmacy in which she worked, she was entitled to a redundancy payment. In denying this allegation, the Respondent submitted that they offered the Complainant a reasonable alternative to redundancy, and that her failure to accept the same disqualified her entitlement to statutory redundancy.

A hearing in relation to this matter was convened for, and finalised on, 25th November 2022. In advance of the hearing, both party’s issued extensive submissions. These submissions were expanded upon and contested during the hearing. The Complainant gave evidence in support of her complaint, this evidence was given under affirmation and was opened to cross examination by the opposing side.

At the outset of the hearing the Respondent raised a preliminary issue as to jurisdiction. They submitted that as the Complainant had not resigned, and in circumstances whereby she had not been dismissed by the Respondent, the contract of employment had not been terminated. As a consequence of the foregoing, the Respondent submitted that the Complainant did not enjoy the protection of the impleaded Act. Whilst this issue is potentially determinative of the entire proceedings, given the nature of the same, it will be considered following a summary of the substantive matter.  

The Complainant was employed as a Supervising Pharmacist in the Respondent’s pharmacy in Newbridge, County Kildare on 24th November 2003. On 30th January 2022, the Respondent requested that the Complainant redeploy to the their Naas premises.  The Complainant refused this move as it was further from her home and would involve a longer commute. No mention was made at this point regarding the future of the Newbridge premises.

On 28th March 2022, the Respondent announced that the Newbridge pharmacy was to close in the coming weeks. The following day, the Complainant requested that the Respondent set out the proposed terms of her redundancy. On 30th March, the Complainant was informed that her role was not at risk and that the Respondent intended to transfer the Complainant to their Naas store.  In so doing, the Respondent sought to rely on a misquoted clause of the Complainant’s contract of employment. The relevant clause in her contract stated that, “the Company may, with your consent, redeploy you at any other location within the area”. The Respondent sought to rely on the clause without the crucial stipulation that such a move must be with the Complainant’s consent. In evidence the Complainant stated that she believed this to be underhand on the part of the Respondent.

Thereafter, the Complainant attended a number of meetings with the Respondent regarding the matter. In the course of these meetings, the Complainant explained her position as to why she believed that the proposed move to Naas was not a reasonable alternative to her employment and stated that she should be made redundant. Whilst the Respondent did concede that any such move must be made with the Complainant’s consent, they insisted that the option moving to the Naas premises was a reasonable alternative to redundancy.

Having fully engaged the internal procedures in relation to this matter, the Complainant, via her representative, corresponded with the Respondent on 23rd May 2022, stating that she had been made redundancy by virtue of Section 7 of the Act and considered herself dismissed. The Complainant again confirmed this position by correspondence of 23rd June 2022, stating, without caveat, that she believed herself to be dismissed and setting out her intention to pursue the present complaint. 

In evidence, the Complainant stated that she had worked in the Respondent’s Newbridge premises for almost twenty years. She stated that this particular location was particularly advantageous to the her in respect of her domestic affairs. She stated that her much of her day-to-day scheduling was based around her place of place of work. In this regard, the Complainant stated that this was the reason she accepted a role so close to home in the first place. In evidence, the Complainant outlined why exactly she believed that the role in Naas was not suitable for her. She stated that such suburban areas endure significant traffic congestion in the mornings and afternoons. This congestion is particularly evident during the time when children are being dropped to and picked up from school. In this regard, the Complainant would experience a significantly increased communing time, equating to hundreds of hours per year. In addition to the same, the Complainant feared that she would not have easy access to her children’s schools should she be required on short notice. The nature of the Complainant’s role is that she is always required to be on premises, the role does not lend itself to flexibility in this manner.  The Complainant stated her working hours at the new location would be the same. The only proposed amendment acted to the Complainant’s detriment, in that she had previous worked one shorter day per week, with the hours made up elsewhere. On her move, it was apparent that this arrangement was to be revoked.

By submission, the Complainant representative stated that the offer of continued employment in the Nass premises clearly did not constitute a reasonable alternative to redundancy, and as a consequence of the same, the Complainant is entitled a statutory redundancy payment.

The Respondent agreed with much of the factual matrix presented by the Complainant. In this regard they did not call any direct evidence to contradict the Complainant’s evidence. Nonetheless, they submitted that the contract of employment had not been terminated and, consequently, the Complainant did not enjoy jurisdiction to being the present complaint. In the alternative, the Respondent further submitted that they offered the Complainant a reasonable alternative to redundancy and that her failure to accept the same disentitles her to a statutory redundancy payment.

The Respondent accepted that the Newbridge pharmacy, the Complainant’s sole place of work, closed on 5th May 2022.  However, they submitted that the Complainant was offered the choice of two identical positions within the Respondent, a position in Baltinglass Co. Wicklow and a role in Naas, County Kildare. The Respondent was of the view that the role in Naas represented a particularly reasonable option for redeployment. Given that the Complainant already drove to the premises in Newbridge, this represented a further daily commute of just over ten minutes. While it was apparent that the Complainant had certain misgivings in relation to this transfer, the Respondent met her on numerous occasions in relation to the same and offered a once-off payment of compensation to the Complainant for the additional time spent travelling. The Respondent also offered to review the Complainant’s working patterns to ease the transition.   

In summary, the Respondent submitted that they did not dismiss the Complainant and she did not resign. They further submitted that while the branch the Complainant had worked in closed, the Respondent itself had numerous other roles the Complainant could move to. They stated that the Complainant’s contract of employment contained an express mobility clause in relation to such transfers. Finally, they submitted that the proposed transfer to the Naas branch was a perfectly reasonable alternative to redundancy and the Complainant’s failure to accept the same disentitled her to a redundancy payment.

The Respondent has submitted that in circumstances whereby the Complainant did not resign and she was not dismissed, no termination of employment occurred and consequently the Complainant has no jurisdiction to being the present complaint.

In this regard, it is certainly apparent that the Respondent did not dismiss the Complainant. However, Section 9(1) of the Act provides that,

“…an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if, (c) the employee terminates the contract under which he is employed by the employer…such that he is entitled so to terminate it by reason of the employer‘s conduct.”

In this regard, it is apparent that the Complainant is entitled to resign her contract of employment and claim statutory redundancy so long as the same is “by reason of the employer‘s conduct.”

Notwithstanding the foregoing, the Respondent has submitted that the Complainant did not actually resign her contract of employment. In this regard, they submitted that she engaged with the Respondent under their grievance procedures after the closure of the branch where she was engaged.

Notwithstanding the foregoing, on review of the relevant correspondence, it is apparent that the Complainant evidenced her intention to resign on numerous occasions. In particular, by correspondence dated 23rd May 2022, the Complainant’s solicitor advises that,

“Our position is that our client’s role has been made redundant by operation of Section 7 of the Redundancy Payments Act and our client is therefore dismissed.”

The correspondence goes on to state that unless the Respondent pay statutory redundancy, the matter will be referred to the present forum. Th correspondence also states that the Complainant intends to secure alternative employment.

Regarding statements that may amount to a termination of employment, in the matter of Devaney -v- DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal held that,

“…what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

In the matter of Millett -v- Sherkin [2004] 15 E.L.R. 319, the Labour Court held that,

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation.”

Having regard to the foregoing, it is evident that the Complainant’s correspondence of 23rd May 2022 sought to being the bring the contract to the end. While the correspondence does not specifically mention the work “resignation” the combined extracts quoted above clearly indicates an intention on the part of the Complainant to end the contract, albeit on the grounds of redundancy. The Respondent’s subsequent refusal to accept this termination on these grounds does not negate this intention.

Having regard to the foregoing, I find that the Complainant’s contract of employment was terminated by at least 23rd May 2022 and, as a consequence of the same, the substantive matter falls to be considered.

The Complainant has alleged that by virtue of the Respondent closing the premises where she was located, she is entitled to a statutory redundancy payment.

In this regard, it is noted that Section 7(2) of the Act provides that,

“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 purpose 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”

In light of the foregoing, it is apparent that the closure of the premises where the Complainant worked is expressly listed as scenario that would give rise to an entitlement to a statutory redundancy payment.

Notwithstanding the same, Section 15(2) of the Act provides that,

“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

e)       he has unreasonably refused the offer.”

In the matter of Garrett Brown and Isabella Di Simo RPD 1914, the Labour Court held that,

“In determining the within appeal, the Court is required to consider firstly the suitability of the offer of alternative employment made by the Respondent in writing on 21st November 2018 to the Complainant, and, secondly, whether or not the Complainant’s decision to refuse the offer was reasonable in all the circumstances.  In Cambridge & District Co-operative Society Limited v Ruse [1993] I.R.L.R. 156, the English EAT, when considering the similarly worded provisions of the British legislation, said 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 factual matrix in respect of this portion of the complaint is largely agreed. The Complaint worked in the Respondent’s Newbridge premises for over 18 years. On notice of the closure of the same, she was offered a role in the Respondent’s Naas branch. While the Complainant lived close to the former premises, she did drive to work. Under the terms of the proposed amendment, she would be required to drive the additional portion of the journey to the Naas premises. Having regard to the foregoing, it is apparent that this offer meets the first, objective portion of the test. The Complainant was offered the same role, on essentially the same terms and conditions, in premises that isn’t particularity geographically distant from the prior role.

Notwithstanding the foregoing, regard must be had to the subjective reasonability of the Complainant’s refusal of the offer. In this regard, the Complainant stated that the reason she initially accepted that role was that it was close to her home. She stated that she had a busy domestic life and the fact that she on hand should an emergency arise was particularly important to her. She further stated that while the alternative role might now be far away geographically, the route she would have to take in the mornings and evenings suffers from particularly bad congestion. The effect of the same is that the proposed move would add hundreds of hours of commuting time yearly, something she intended to avoid in securing employment so close to her home.

In consideration of the foregoing points, I find that considering the matter from the Complainant’s subjective point of view, her decision to refuse the offer was reasonable in the circumstances. From the evidence provided, it is apparent that the Complainant attended the same place of work for almost twenty years. It is further evidence that the Complainant organised a good portion of her domestic life around her place of work. Her evidence regarding her rationale for selecting this place of work is perfectly reasonable, as is her reluctance to introduce a significant amount of commuting into her daily life. These points are further evidence by the fact that the following the termination of this employment, the Complainant secured a role similarity close to her home.

In addition to the foregoing, I note that the mobility clause of the Complainant’s contract states that any proposed re-location must occur with the express consent of the Complainant. The natural inverse of the same is that the Complainant enjoys the contractual right to object to a transfer of employment, a right she consistently exercised throughout this process. 

Having regard to the accumulation of the foregoing points, I find that the Complainant acted reasonably in declining the Respondent offer of an alternative role. In such circumstances the Complainant is entitled to a statutory redundancy payment and, consequently, her appeal succeeds.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Having considered all of the information presented to me and giving appropriate weighting to the direct evidence adduced, I am satisfied that the complainant has established the existence of a redundancy situation and the appeal succeeds.

I find that the complainant is entitled to a statutory redundancy payment based on the following:

Date employment commenced:  24th November 2003

Date Employment ceased:           5th May 2022

Gross Weekly wage:                      €1,853.19

The entitlement is contingent on the complainant having been in insurable employment in accordance with the Social Welfare Acts for the relevant period.

Redundancy, Alternative Employment, Refusal