ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043805
Parties:
| Complainant | Respondent |
Parties | Rodica Buga | Bidvest Noonan (Roi) Limited |
Representatives |
| Emily Maverley of IBEC |
Complaint(s):
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-00054103-001 | 12/12/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00054103-002 | 12/12/2022 |
Date of Adjudication Hearing: 24/01/2024
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant worked for the Respondent as a Cleaning Operative from 6th of January 2003 until 31st of August 2022.
In the years leading up until her termination the Complainant worked at the offices of A&L Goodbody in the Dublin docklands. She worked a night shift coming into the office at 4.30 pm and leaving at 2am.
A & L Goodbody allowed the Complainant use of their secure underground carpark.
In March 2022 A & L Goodbody quit their premise for renovations and neither the Respondent nor Complainant’s services were required.
The Respondent proposed to relocate the Complainant to State Street just across the river. This would similarly involve a 4.30pm to 2am shift.
The Respondent was unable to obtain underground car parking for the Complainant in State Street. She would have had to park on the public road. Though the Respondent was willing to pay for the parking the Complainant did not believe this was safe as she would have to go to her car every night on the public street, at 2am.
The Complainant also disputed the role offered, arguing that it the duties were substantially different and involved disinfecting which was not something she could do due to her health condition.
The parties engaged in a consultation process but ultimately there was a dispute as to whether the Complainant was unreasonably refusing a suitable alternative role and the Complainant was terminated on the 31st of August 2022 without any redundancy lump sum payment.
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Summary of Complainant’s Case:
The Complainant attend the hearing and gave evidence under oath with the assistance of an interpreter. She has a chronic lung disease and is unable to work with many cleaning products. She notified the Respondent that she could not undertake the disinfecting duties which were part of the State Street role, but this was ignored. She was not asked to document her health concerns. Disinfection was introduced in A&L Goodbody post covid-19 but this was performed by another team and was not part of her role. As a woman, she didn’t feel that going to her car at 2am every night, parked on the street in the Docklands, would be safe. She had been attacked 10 years ago in the same area. On any given day she might not find a parking space directly overlooked by the State Street building. When she brought this up in the consultation process her concerns were ignored. The Complainant was not offered a taxi service as an alternative to underground parking. She is aware of this option becoming available to other staff but only after they had started in State Street and had been working there for a few months. The Complainant argues that she did not receive her notice until the 29th of August when her appeal was rejected. Her 8 weeks should have run from that point. |
Summary of Respondent’s Case:
The Respondent submitted detailed written submissions and their representative Ms Maverley made oral submissions. The Respondent’s representative referred to the letter on the 7th of July 2022 where the Complainant was clearly put on notice of termination and given a termination date. The Respondent notified the Complainant on the 24th of March that she was at risk of redundancy. They engaged with her in numerous consultation meetings. The found a suitable alternative role for her, only a 15 minute walk from her current role, which she turned down. They even offered for her to take the role on a test basis for a week but she also refused to try this option. Ms Liliana Nastas, who managed both the State Street and A&L contract for the Respondent, gave evidence under affirmation. She was told in March that the her clients were quitting the building. She began a process of offering people alternative jobs or redundancy. She was involved at very beginning that process. She was not sure exactly of the number of meetings she was in with the Complainant. She was part of the general announcement to staff and attended at least one, one on one, with the Complainant. They wanted to retain staff and knew they could offer some staff the State Street contract. She accepts that there were some duties different between the two contracts. In A & L the Respondent did not direct staff to clean the desks for confidentiality reasons. In State Street there was a hot desking system. The desks needed to be kept clean and were disinfected every night. The Respondent was using standard disinfecting chemicals they would use the same as every other site. She was aware that the Complainant had health problems but had never been told the specifics. She considered it personal to the Complainant. The Respondent accommodated her health appointments. She was not present when the option of the taxi was put to the Complainant and does not know if it was. However, she was aware that this was an option as she had engaged with the client about it. |
Findings and Conclusions:
CA-00054103-001 – Redundancy Payments Act. Section 7(2)b of the Redundancy Payments Act provides that an employee is dismissed by reason of redundancy where 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. It is clear from the facts outlined by both parties that the Complainant was made redundant. The question arises whether the offer for the Complainant to take up work in the State Street building was a suitable alternative role which would disentitle the Complainant to a redundancy payment. The Labour Court, in Mr Garrett Browne v Ms Isabella di Simo RPD1914, has endorsed the view of the UK Employment Appeal Tribunal in Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156 on the issue of suitable alternative roles. Namely : “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 Complainant has put forward two reasons for her seeing the offer as unsuitable. The first is the expansion of her role to include disinfecting desks. Normally this would seem like a reasonable request for a cleaning operative to undertake but the Complainant has outlined that this was not suitable for her as she had a chronic lung condition and was concerned about the potential for the disinfecting chemicals to exacerbate this. Though the Respondent engaged with the Complainant in an extensive process they did not address this point at all when the Complainant raised it in her redundancy appeal. They did not seek to have an occupational health assessment or establish what impact these duties could have on the Complainant. The second is the prospect that the Complainant would have to attend her car, on the public road, at 2am every night, rather than have access to a secure and safe parking area. I believe the Complainant had legitimate safety concerns and the lack of secure parking constituted a serious change in her working conditions, particularly considering the hour of night she would have to walk to her car at. While the Respondent seems to suggest that the Complainant was offered a taxi service the Complainant disputes this. They have provided no evidence of this offer and indeed their own transcripts of meetings would appear to contradict this position as HR appears to challenge the Complainant’s concern in this regard. Specifically, the Senior HR Advisor who handled the Complainant’s consultation meeting and took the decision to terminate the Complainant, made the following observation on the 6th of July 2022. “I do recall Rodica mentioned in the previous meeting the health and safety point where one of our cleaners was attacked coming home from work. In response to this, the incident did not take place in the state street area, it took place further away. Also one incident cannot define health and safety as a while, anyone can be attacked at any point in the day.” That meeting occurred roughly a year and a half after an employee of the Respondent was murdered in the IFSC area while on her way home from work. In the circumstances it is an appalling attitude to take in response to an entirely legitimate concern raised by a long-standing worker. On the basis of either of the above points I am satisfied that the Complainant was reasonable when she rejected the offer of the job in State Street. The Respondent has not defeated her entitlement to a redundancy payment. CA-00054103-002 – Minimum Notice The Complainant was given notice of her termination on the 7th of July. This specified her termination date of the 31st of August. While that decision was appealed, I am of the view that the notice is still in place while the appeal is ongoing and the notice period does not need to start again at the conclusion of the appeal process. The Complainant was given 8 weeks’ notice which she worked. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00054103-001 The complaint is well founded for the reasons set out above. I direct the Respondent to pay the Complainant a redundancy lump sum payment under the Redundancy Payments Act 1967- 2014 calculated on the basis of the following information. The Complainant commenced employment on the 6th of January 2003. The Complainant’s employment was terminated on the 31st of August 2022. The Complainant was paid €500 per week gross. CA-00054103-002 The complaint is not well founded. |
Dated: 6th February 2024.
Workplace Relations Commission Adjudication Officer: David James Murphy
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