Complainant

Respondent

Parties

Richard  Boylan

Construction Project Support Service Limited

Representatives

John Cleary SIPTU

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-00056485-001

04/05/2023

The Complainant worked for the Respondent construction firm from 12th of February 2020 until the 20th of January 2023. He was let go due the Respondent losing a contract on the client site which the Complainant worked on in Leixlip.

At the time the Respondent offered the Complainant alternative work in Cork. The Complainant refused and requested a redundancy payment which the Respondent refused.

The Complainant’s Union provided detailed written submissions. The Complainant attended the hearing and gave evidence under affirmation.

He explained how on the 18th of January 2023 he was told he was being let go. Mr Bryne then called him and told him about potential work on another site in Middleton Co. Cork.

The Complainant is Dublin based. He is older and has a number of grandchildren who he helps out caring for. In the circumstances an alternative role in Cork just wasn’t a reasonable offer.

The Complainant accepted he had two periods of absence. The first was a period of lay-off due to covid from 31st of March 2020 until the 10th of May 2020. From the 22nd of March 2021 until the 1st of October 2022 he was on certified sick leave.

The Respondent provided detailed written submissions. Mr Robert Byrne attended on behalf of the Respondent and gave evidence under affirmation.

Mr Boylan does not dispute the sequence of events outlined by the Complainant in his evidence.

The Complainant’s contract provides for travel. This is not unusual in a construction company to require travel and the Respondent had stayed in business solely because it is willing to move around the country and take work where it arises.

Section 7(2)b of the Redundancy Payments Act provides that an employee is dismissed by reason of redundancy where 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.

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 Middleton Co Cork was a suitable alternative role which would disentitle the Complainant to a redundancy payment.

The relevant law is summarised well in the Union’s submissions.

The Labour Court, in Mr Garrett Browne 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”

In the circumstances it is clear why the alternative role was not suitable to the Complainant. He based in Dublin with significant family obligations. Indeed, leaving aside the subject justification of the Complainant’s refusal I do not think a relocation to Middleton from Leixlip would be and objectively suitable alternative role.

The Respondent has pointed to the Complainant’s contract which provides for his transfer to other locations.  The Union points to, Summeridge Ltd v Derek Byrne RPD211 where an employer sought to rely on the fact that the employee had a “mobility clause” in his contract. The Court determined that where an employer seeks to rely on such a clause, they must explicitly invoke it by an instruction to comply with same. As in this case an instruction to comply with the clause was not issued, instead it was presented as an alternative to the Complainant’s current role which he could choose to take up or not.  

Reckonable Service

Schedule 3 of the Act sets out how to calculate reckonable service

8. During, and only during, the 3 year period ending with the date of termination of employment, none of the following absences shall be allowable as reckonable service—

(a) absence in excess of 52 consecutive weeks by reason of an occupational accident or disease within the meaning of the Social Welfare (Consolidation) Act 1993,

(b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a),

(c) absence by reason of lay-off by the employer.

The Complainant has two breaks in his reckonable service. The first was a period of lay off and the second was a period of sick leave in excess of 6 months. It is accepted by both parities that these breaks occurred and it is calculated that the Complainant’s redundancy entitlement taking these breaks into account is €3624.

I find that the complaint is well founded and direct the Respondent to pay the Complainant a redundancy lump sum of €3624.