Complainant

Respondent

Parties

Parascovia  Isac

Bidvest Noonan (RoI) Limited

Representatives

Vadim Karpenko , First National Consulting and Legal Service

Ruth Heenan of  IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00054014-001

05/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00054014-002

05/12/2022

The issues in contention concerned the refusal of the Respondent Employer to allow the Complainant avail of Redundancy with an allied Minimum Notice payment claim.

The employment as a Contract Cleaning Operative began on the 4th July 2012 and ended on the 31st August 2022. This date was not accepted as completely accurate by the Respondent as the Complainant lodged a Final Appeal bringing her end date to the 11th of September 2022.

The rate of pay was stated to be €831 per fortnight for a 40-hour week.

1:1        Redundancy Payments Act, 1967 - CA-00054014-001

The Complainant made an Oral Testimony supported by a Written Submission. Mr Karpenko was her Spokesperson.

Her case was that she had been employed since 2012 at the A&L Goodbody offices in the IFSC Complex. In March 2022 the Complainant learned that the Goodbody offices were being transferred to allow renovations of the building. A Contract Cleaning Service with the Respondent employer was no longer required.

The Respondent offered an alternative position at the Public Appointments Service in Abbey Street. The Complainant declined this Alternative offer as the Start/Finish Time were different and the job content was much more onerous than her Goodbody position.

At a meeting on the 20th July 2022 this situation was apparently accepted by the Respondents and a Redundancy Offer was made. Redundancy calculation paperwork was provided, and all appeared in order as regards a Redundancy. However, on the 22nd of July,  the Complainant was called to a further meeting with the Respondent where the issue was examined again by the Respondents and the PAC job was deemed a “reasonable alternative”. An Appeal was heard on the 4th August 2022 but the Respondent refused to accept that the jobs were different. Ms JK, the HR Director, heard the Appeal, but the outcome was a refusal of Redundancy on the “Comparable” Jobs basis.

Mr Karpenco referred to the 5 “tests” for Redundancy in the Redundancy Payments Act, 1967 and was of the view that they were supportive of the Complainant’s position. He also referred to precedents in Adj 20568 and the Cambridge and District Co-operative Society Limited v Ruse English case where the question of an employee’s refusal has to be carefully tailored to the employee’s personal situation.

On all grounds he was of the view that the Complainant was reasonable in her refusal of the PAC Office job as it was not suitable and was materially a different job.

1:2        Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00054014-002

The Complainant alleged that she was not paid her proper Notice pay on the termination of the employment

2:1         The Respondent gave an Oral Testimony supported by a Written Submission. Ms Heenan of IBEC was the chief spokesperson. The Respondent informed the Complainant in March 2022 of the possibility of Redundacy. The Respondent had a first Consultation meeting with the Complainant on the 20th April 2022.  On the 8th July 2022 an alternative job position was identified in the Public Appointments Service in Abbey Street. Job descriptions of both the existing and the new job were submitted in evidence.

In the following Consultation meetings, the jobs were discussed, and some flexibility was offered by the Respondent in Starting & Finishing times. Duties that were described as “extra in the PAC Office” were explained as “once off” that often specialist contractors would undertake. By any reasonable standard the jobs were almost identical and geographically close.

A trial period was offered but declined by the Complainant.

2:2        Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00054014-002

The Respondent produced evidence to demonstrate that all proper notice had been paid.

3:1        The Relevant Law

Section 15 of the Redundancy Payments Act,1967 is pertinent.

Disentitlement to redundancy payment for refusal to accept alternative employment.

15.—(1) An employee 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 

(c) the renewal or re-engagement would take effect on or before the date of  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 

(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 , 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.

(2B) Where—

(a) an employee’s remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and

(b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer,

such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.

There are also extensive case Law precedents regarding the acceptance /non acceptance of alternative employments.  The Complainant pointed out the English case of Cambridge and District Co-operative Society Limited v Ruse  quoted by the Labour court in Adj 20568 , where the question of an employee’s refusal of alternative work has to be carefully tailored to the employee’s personal situation. There is no fixed rule and questions of what may be called “personal circumstances” such as travel times and start finish times have a major bearing.

Notwithstanding the Legal precedents it is necessary to examine the evidence presented.

3:2        Evidence presented.

In this case the main Oral evidence and Written submissions centre on the comparisons between the Goodbody Office and the PAC Office positions.

Fron an outsider viewpoint both offices were physically close to each other, and both well serviced by Public Transport. The nature of the actual job content was very similar. The Respondent followed careful Procedures, and nothing was amiss there. Allowing for Legal precedents regrading “Reasonableness” on both Employer and Employer sides the offer of the PAC Office as alternative employment is hard to find fault with. The Complainant referred to her residence in Blanchardstown and her school going children who had to be got to school. The children were it appeared now late teenagers /early adults.

The only issue if contention was the exchanges following the 20th July 2022 where a Respondet letter/ e mail was sent to the Complainant enclosing Redundacy Figures. It was subsequently clarified that this was not a Formal offer but it did certainly raise legitimate exepcations in the mind of the Complainant. None the less at further consultation Meetings and the Appeal Meeting the position was clear stated that no Redundacy was of offer as the Alternative Job was suitable.

The Adjudication view has to be that, following a review of evidence and Legal precedents, the position at the PAC in Abbey Street was a suitable alternative. There was no great hardship involved in Geographical access and the work duties were similar.

3:3         Adjudication conclusion

Having reviewed the evidence, the Respondent position has to be upheld. Redundacy is not warranted.

3:4        Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00054014-002

Respondet evidence pointed to proper notice being paid.  The Complaint has to fail.

Redundacy, Comparative Employment, Minimum Notice.