Complainant

Respondent

Parties

Jason  Bolger

The Buttery Bistro Limited

Complainant

Respondent

Anonymised Parties

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Representatives

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-00057815-001

20/07/2023

The Complainant worked as an Area Manager with the Restaurant from 27th August 2018 until 3rd February 2023.

The Complainant was initially recruited as a Restaurant Manager for the Buttery restaurant at Browsers. Following the pandemic, he accepted the role of Area Manager managing the restaurants. In 2022 he also took on responsibility for running the café and commercial kitchen.

In December 2023, he was told by one of the Directors that the Buttery restaurant was closing and his role of area manager would no longer exist, and he would have the option of redundancy. On 30th December 2023 the Complainant was asked was he taking the new role and he requested the job description which he never received.

On 11th January 2023, the Complainant was informed the Area Manager role no longer exists. He was offered another position at the Commercial Kitchen working on obtaining outside jobs, catering menus and other ideas to generate sales. He was not provided with a written job description. The Complainant has worked as a restaurant manager for twenty-years and was concerned the sales aspect of the role would be outside his remit. He was told he could take redundancy. He informed the Director he would take redundancy. He was told he would be given a date.

Later that day, he was called into a meeting with the Director and Operations Manager. The Director said she felt the Complainant wanted to remain with the company, so she would offer him a Monday to Friday role and pension. The Complainant said he would think about it overnight.

On 12th January 2023 the Complainant confirmed he wanted to take redundancy. He was offered a salary increase but refused. He had not received a job description, but it was the same role in the Commercial kitchen with a focus on sales which was not the same as he had been doing.

He was informed his last day of work would be 3rd February 2023, and that his redundancy payment would be paid at end of February 2023. On 8th March 2023, the Complainant was sent an email saying he was misinformed, and that a far superior job had been created for Production Kitchen Manager which was provided. The job description was created for the Head Chef to work with the Area Manager the previous September 2022. The Complainant’s solicitor requested payment of his redundancy within 14 days. The Director responded saying he refused to take the job description.

The Complainant says he was only provided with a job description for another role one month after he left the company. No reasonable alternative role was offered to him in writing. He is now seeking his redundancy.

The Respondent denies redundancy is due to the Complainant as an offer of suitable alternative employment on better terms was made to him which he refused. The company relies on S15 (a) of the Redundancy Payments Act 1967 and says the Complainant is disentitled to redundancy.

The Complainant was initially hired due to his experience in the food industry as a Chef and  Restaurant manager to manage the Buttery restaurant. However, following the pandemic in 2020, the Buttery restaurant was closed and another planned restaurant was abandoned. In 2021/2022 the company established a commercial kitchen to prepare and supply food to the restaurants, cafés and undertake catering contracts.

The Complainant had meetings and discussions regarding the sales prospects and prepared monthly sales projections with potential customers for the commercial kitchen in 2022. Following the closure of the Buttery restaurant, the Complainant was informed that the role of Area Manager no longer existed. A company Director met the Complainant to discuss a role being offered to him in early January 2023 on the same terms and conditions, and he was reassured regarding his future with the company.

The Complainant shared that he had concerns about continuing employment in the industry. He was considering moving location and wanted to work mid-week rather than on weekends and public holidays. He was also concerned he did not have a pension. The Director said his requests could be facilitated. A printed job description was provided to the Complainant.

Regrettably the Complainant then advised on 11th January 2023 that he wanted to change industry. The Director then called the Complainant back and made three offers increasing salary and including the terms sought. The Complainant declined to accept the offer. The Complainant was fully aware of what the role involved.

The company offered suitable alternative employment to the Complainant which he declined. The Company were informed by their external HR that the Complainant had abandoned his entitlement to redundancy as he refused the suitable alternative role offered. The company were very disappointed that the Complainant refused the role offered on better terms. The Complainant is not entitled to the redundancy payment sought by virtue of S15 (a) of the Redundancy Payments Act 1967.

I have heard and considered carefully the submission and evidence of the parties and witnesses.

The Complainant was initially employed as a restaurant manager from 28th August 2018. His role changed to Area Manager whereby he was in charge of restaurant operations, a café and the commercial kitchen from 2022. In December 2023 the Complainant was notified his role no longer existed due to the closure of one of the restaurants. The Complainant gave evidence he was offered a role to head up the commercial kitchen. He was offered improved terms including a salary increase, a Monday to Friday role and a pension. The Complainant said he was not provided with a written job description, the role offered was in sales not operations, so he opted for redundancy.

Ms. Murphy Director of the company has given evidence that one of the restaurants was to close, so there was no need for an Area Manager. There was new role to head up the kitchen and catering operations available for the Complainant. The company offered the role and improved financial terms to the Complainant, but he refused the offer.

The Complainant had concerns about the suitability of the sales aspect of the role as his background is in restaurant management. Although the company offered a Monday to Friday role, he was of the view that catering is likely to take place at the weekend so it would be necessary for him to work weekends. He said he was promised Sundays and Mondays off when he first started with the company, but this was never given.

Section 15 of the Redundancy Payments Act 1967 provides:

“15. Disentitlement to redundancy payment for refusal to accept alternative employment

(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 the termination of his contract,

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

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In Cambridge & District Co-Operative Society Limited v Ruse [1993] I RLR 156 the English Employment Appeals Tribunal considered similar provisions said the question of the “suitability of the employment is an objective matter, whereas the reasonableness of the employee’s refusal depends on factors subjective to him and is a subjective matter to be considered from the employee’s point of view”.

 The Complainant was already responsible for the kitchen and catering operation as Area Manager since 2022. He said he had concerns about his ability to perform the sales aspect of the role and whether it would be a Monday to Friday position. However, there is no evidence that his concerns were ever raised with the company. The financial terms of the role were improved in line with his requests. The company said he was a valued employee. The Complainant could have taken the role on a trial basis initially and opted for redundancy later if he found it was not a suitable alternative.

In the circumstances, I find the Complainant unreasonably refused an offer of suitable alternative employment and pursuant to S15 of the Act the Complainant is disentitled to redundancy. The complaint is not well founded.

The complaint is not well founded.

Suitable alternative employment, redundancy