Complainant

Respondent

Parties

Michael Carolan

FMI Ltd

Representatives

  self

 HR Manager

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-00060282-001

28/11/2023

The Complainant commenced employment with the Respondent on or about the 5th of September 2017. He is employed as a Merchandiser and works 2.5 hours per week. Arising from a reorganization at the Supermarket he worked in the merchandising of dry packed products was brought in house. He in turn was put on notice that his role was at risk of being made redundant. A formal 30-day consultation process began in March 2023, and this involved finding alternative roles.   

During the consultation period the Complainant was offered alternative roles in two other supermarkets. However, he deemed these roles to be less favourable because of the work conditions involving cold rooms and also travel distance. Arising from his refusal to accept these unsuitable roles he was denied redundancy. The Company deemed his refusal to accept these roles as a resignation. The Complainant seeks statutory redundancy entitlement arising from his role being made redundant.

The Respondent stated that Complainant continues to be an employee. The alternative roles offered to the Complainant were reasonable. The hours offered included work where he would have to work for a relatively short time with chilled product in the same store and the other choice was work in Newtown Mount Kennedy. The Complainant ordinary residence from work was considered and this option is approximately the same as the Bray location. The Complainant never submitted any medical reasons why the first option was not acceptable. There is an extensive record of emails with the Respondent attempting to understand why the options were not suitable.

An employee has a general right to redundancy where:

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 F18[four years] ending on that date.

In this case the Employer stated that the Complainant has not been dismissed. The Complainant states he has been made redundant as the roles offered to him are not suitable.

The Company stated that the Employee within reason was expected to be reasonable:

From: Samantha Carroll

Sent: 13 April 2023 18:06

To: Complainant

Cc: Stephanie Finnegan

Subject: RE: Redacted

Hi Michael

FMI believe the alternative work offered to you is reasonable. We have several vacancies within the business. FMI are committed to working with you on training and development in those roles.

I would also like to note that the following is in your contract:

 You will be employed primarily as a Merchandiser for FMI Clients. Your duties are noted under your job description tasks. You will be required to be flexible in this job role position and must be prepared to undertake such other duties and tasks that may be assigned to you by FMI on behalf of the client from time to time.

 In the event that the clients’ service managed contract is withdrawn between FMI and any of its clients’, FMI will endeavour to redeploy you where possible.

Redundancy is not an option as there is work available to you as I outlined below.

The Company details the alternatives again on the 24th of April 2023:

The merchandising call file you covered was Newtownmountkennedy and Bray.

We are prepared to offer you the following:

 Tuesday & Friday after 2pm (1 hour of milk merchandising) – Newtownmountkennedy, same location, same day, different product. No training is required.

 Saturday – 2 hours at SV Southern Cross & 1 hour at Dunnes Bray (milk merchandising) -Southern Cross Bray and DS Bray, same location, different product. No training is required.

 Musgrave auditing – 2 hrs + more (if required) can be done on the same day and locations. This role allowed for greater development opportunities as you communicated you were looking for a career change which full training would be provided to you.

 Relief Merchandiser – covering holidays and sick leave (covering all campaigns), this was offered to you as you requested more hours due to the reduction from other employers you worked with. No training required.

On these facts the Complainant’s employment was not terminated and no entitlement to redundancy arises. The Employee has a contractual obligation to be flexible within reason and the alternative merchandising duties and hours are consistent with the contract agreed between the Complainant and his Employer. The Employer has not made the Complainant redundant and as no dismissal has taken place I determine that the employee is not entitled to a redundancy payment.

I determine that the complaint is not well founded and find against the Employee’s appeal relating to his claim for statutory redundancy.

The Company detailed alternative assignments consistent with the terms in the Employee’s contract, offered to him and he declined without providing a reason that is consistent with his obligations under his contract of employment.  He has an obligation to be flexible where his Employer is being reasonable. The roles he was offered are reasonable based on the area that he was recruited to cover. There is no evidence before this Commission including medical evidence that would prevent the Complainant from fulfilling any of these alternative assignments:

The merchandising call file you covered was Newtownmountkennedy and Bray.

We are prepared to offer you the following:

 Tuesday & Friday after 2pm (1 hour of milk merchandising) – Newtownmountkennedy, same location, same day, different product. No training is required.

 Saturday – 2 hours at SV Southern Cross & 1 hour at Dunnes Bray (milk merchandising) -Southern Cross Bray and DS Bray, same location, different product. No training is required.

 Musgrave auditing – 2 hrs + more (if required) can be done on the same day and locations. This role allowed for greater development opportunities as you communicated you were looking for a career change which full training would be provided to you.

 Relief Merchandiser – covering holidays and sick leave (covering all campaigns), this was offered to you as you requested more hours due to the reduction from other employers you worked with. No training required.

The Complainant’s employment has not been terminated and therefore he has no entitlement to statutory redundancy.

 The Employee has a contractual obligation to be flexible within reason and the alternative merchandising duties and hours are consistent with the contract agreed between the Complainant and his Employer. The Employer has not made the Complainant redundant and as no dismissal has occurred,  I determine that the employee is not entitled to a redundancy payment.

No Dismissal