Complainant

Respondent

Parties

Barbara Maher

Cagney Maintenance Services Limited

Representatives

Dave Curran, SIPTU

Deborah Barker, Head of Human Resources

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00056761-001

19/05/2023

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

CA-00056761-002

19/05/2023

The complainant started working with a predecessor of the respondent in November 2013.  In August 2015, she transferred to the respondent, in the same role, as a cleaning operative, and with no changes to her terms and conditions.  She worked on a client’s site in Grand Canal Dock for nine years and, in September 2022, the client moved to a new premises.  As a result, the respondent lost the cleaning contract in the Grand Canal Dock office.  The complainant was offered three alternative sites, but she declined to take up a role in the locations offered.  The respondent’s HR department made efforts to identify a new suitable location for the complainant.  On January 10th 2023, after considerable engagement and persuasion, the complainant refused to take up an offer of a job in a new location and she was dismissed.

It is the complainant’s case that her dismissal was unfair job and that her was redundant.

At the hearing, Ms Deborah Barker, the respondent’s head of HR, outlined the chronology of events that led to the complainant being dismissed on January 10th 2023.

Ms Barker explained the background to the need to assign the complainant to a new location, because of the closure of the Grand Canal Dock office in September 2022.  She said that the complainant finished up in Grand Canal Dock on September 30th 2022 and, after declining three alternative sites, she was offered a job in the Salesforce building on North Wall Quay. 

By the end of September 2022, the complainant hadn’t taken holidays, and, between May and September, the HR department wrote to her on nine occasions, asking her to take holidays.  The Salesforce building was due to open on November 1st and the complainant was asked to take holidays in October, but she refused. 

On October 21st, the complainant attended a meeting in the company’s office, at which she was informed about her new tasks and responsibilities in the Salesforce building.  She raised some concerns about the work and she was informed that training would be provided if it was needed.  The complainant refused to meet the site manager and she advised the HR manager that she would be refusing the alternative job.  A further meeting was held on October 28th 2022 and the complainant met the site manager then.  At the meeting, the complainant reported that situation was causing her stress.   

On December 1st 2022, Ms Barker said that the complainant attended the Salesforce office for one hour and she had a meeting with a site manager there.  The following day, she was given a schedule of the work that she would be required to do.  She was asked to attend work on the site on December 5th.  She attended a meeting on that day at which she informed the HR team that she would not work there, claiming that it was “dark and isolating.”  The complainant was unhappy that the building wasn’t fully occupied and that parts were unfinished.  She claims that she had no job because there were no employees in the building.  The manager who attended the site visit with the complainant on December 1st said that this was not true. The employees were moving in gradually and the building was expected to be occupied in February 2023.  Ms Barker said that the complainant was offered a role in the Salesforce building on a “like for like” basis with her previous job in Grand Canal Dock.  She was assigned to looking after two floors of meeting rooms.  At her request, she was not required to clean toilets or to do hoovering.  Ms Barker accepted that the complainant had a friendly relationship with the client in Grand Canal Dock and that it was difficult for her when the site closed.  She said that she asked her to identify what was missing from their understanding of what would be a suitable job. 

Ms Barker said that an appointment was made for the complainant to attend the company doctor; however, she refused to attend the appointment arranged for November 16th 2022.

Ms Barker said that, in the end, the complainant was dismissed for gross misconduct.  It is the respondent’s position that the complainant was unmanageable, that she refused to attend work, she refused to take holidays and she refused to attend an appointment with the company doctor.

Ms Barker said that the complainant claimed that she couldn’t take holidays because she didn’t know if her job was safe and that she was afraid she would be laid off.  If she had not taken her holidays by the end of 2022, she would have had to carry over five weeks into 2023.  Ms Barker said that, 15 times, the HR team asked the complainant to take two weeks’ holidays and she refused to confirm her leave.  In the end, she took one week’s holidays, and then, to prevent a disciplinary meeting going ahead, she took four more days.

On behalf of the complainant, Mr Curran provided a comprehensive submission in advance of the hearing. 

Mr Curran outlined the events leading to the decision to transfer the complainant to a job in the Salesforce building on North Wall Quay in October 2022.  He said that, in October 2013, she started working on the Grand Canal Dock site, with a separate company, Momentum.  Her job was on one floor of an office building.  Mr Curran said that, although the complainant started out as a cleaner, after about a year, she was offered a different job, the duties of which were more like that of a concierge.  She worked from 9.00am until 4.30pm.  A separate cleaning team from the respondent’s company did the cleaning work in the evenings when she had finished her work.

The complainant’s responsibilities were as follows:

§  Looking after clients;

§  Keeping the tea station stocked;

§  Setting up rooms for meetings and tidying up afterwards;

§  Meeting and greeting guests;

§  Assisting with events such as breakfast meetings;

§  Stock-taking;

§  Audits;

§  Taking care of equipment such as defibrillators.

Mr Curran said that the complainant was often regarded as the “go to” person when anything had to be done on the site.  She also went to another of the client’s offices in Maynooth for two days to train staff there on how to set up for meetings and how to deal with clients.

Until the onset of the Covid-19 pandemic, Mr Curran said that the Grand Canal Dock site was fully occupied.  When all the respondent’s employees went home, the complainant attended work.  Her hours to 7.30am to 2.30pm.  In addition to her previous duties, she worked on reception, she did cleaning and she was in contact with other sites run by the client.

In May 2022, the client in Grand Canal Dock began to move out of floor of the building it had occupied.  Mr Curran said that the floor “began a demolition process.”  He said that the complainant initially thought that the office was being refurbished; however, the site closed on September 30th.  The complainant attended meetings with the respondent’s HR team on October 21st and 28th with a view to identifying a suitable new location.  The complainant was also asked to take her holidays and was told that “you cannot continue to keep working and not take leave.”  She was informed that, if she did not confirm the date of two weeks of annual leave in November 2022, two weeks’ holidays would be allocated.

When the complainant presented for work on the Salesforce site, she discovered a number of issues:

§  Staff were not on the site;

§  Contractors were still working on the building;

§  There was a terrible smell;

§  The computers were all still in their packaging;

§  The fire alarm was going off constantly;

§  The kitchen wasn’t set up;

§  It was apparent that the “people-facing” element of the complainant’s previous job no longer existed.

After a day on the site, the complainant informed the management that the job wasn’t suitable.

On December 22nd, the complainant was invited to attend a disciplinary meeting.  This was to address the following:

1.       The complainant’s refusal to take holidays;

2.       Her refusal to attend a meeting with the occupational health consultant;

3.       Her refusal to attend work on the Salesforce site.

At the meeting, the complainant explained that the reason she was holding on to holidays was because she was concerned about the uncertainty that arose after the closure of the Grand Canal Dock site.  She thought that she might be laid off when the site closed and she wanted to hold on to her holidays to cover her wages during this period.

Regarding the appointment with the occupational health doctor, the complainant said that she thought that the company had acted in a “heavy handed” way when she had mentioned that she was suffering from stress.  She felt that she was not treated with sensitivity, as set out in the company handbook, but in a coercive manner.

The complainant described the job in the Salesforce site as “not the same job,” but “a regressive role.”  The complainant’s union representative argued that what had started out as a discussion about relocation had turned into a disciplinary issue. 

The complainant was dismissed on January 10th 2023, and, although she appealed against that decision, it was upheld on February 8th 2023.

The Complainant’s Position that her Dismissal was Unfair

Mr Curran referred to the decision of the Labour Court in Coughlan V DHL Express (Ireland) Limited[1], where the Court determined that the employer “did not give due consideration to imposing an alternative and more proportionate sanction.”  Mr Curran said that there is no evidence that the respondent had any regard for the complainant’s length of service, or the complicated circumstances she found herself in.  Mr Curran said that the complainant had been an exemplary employee and had maintained very positive relations with the client on the Grand Canal Dock site.  During Covid-19, she kept the whole operation going.  She was the face of the respondent to the client, and she ensured that the relationship remained strong.

Mr Curran referred to s.20(1)(c)(ii) of the Organisation of Working Time Act 1997, and the provision to carry over annual leave into the first six months of the following leave year, “with the consent of the employee.”  Utilising this provision, the complainant had until June 31st 2023 to take her holidays.  She did not refuse to take her holidays, and she applied for leave which was refused.

Mr Curran said that the complainant was willing to move to a new site, as long as the role was similar to her previous job.  Mr Curran submitted that discussions on this issue were ongoing when the disciplinary process commenced.

Evidence of the Complainant

The complainant said that her eventual job in the Grand Canal Dock office outdated the role described in her contract of employment.  She said that the respondent didn’t know how her job developed, and, if they had known, the situation would have been easier.  She said that she went to the Salesforce site on December 1st 2022 and the fire alarm was being tested.  She said that no one could tell her where the assembly point was.  Building contractors were on the site and there were only two people from the respondent’s company there.  The complainant said that Salesforce employees were not due to occupy the building until March 2023.  The complainant said that she is a diligent, professional employee and that this was a regressive job.

During Covid-19, when she worked on the Grand Canal Dock site, the complainant said that she used to find things to do, because there were no meetings taking place.  She said that she asked if she could go on the pandemic unemployment payment, but this was refused.

Regarding the allegation that the complainant refused to go to the company doctor, the complainant said that she mentioned feeling stressed, but not to the extent that she needed to go to a doctor.  She could have been asked to get a report from her own doctor.  She said that she thinks that the respondent’s management “weaponised” this issue to bolster their case against her.  She said that she went to all the meetings with management on her own and she dealt with 14 individual managers, which she couldn’t have done if she had been finding the proceedings stressful.

Regarding the respondent’s contention that she was unmanageable, the complainant said that she represented the company with the upmost professionalism, and, if she had been unmanageable, this would have been obvious. 

The complainant said that, following her dismissal, she applied for a job with a legal firm, but, when she informed them that she had been dismissed, she didn’t hear from them.  She has a sore knee now and is not able to work as before.

At the conclusion of her evidence, I asked the complainant what it would have taken for her to accept the new role.  She said that she was involved in meeting and greeting clients and she wanted something similar.  She said that she couldn’t go to the Salesforce office when there was no work to do.  She said that the company was lucky to have her working for them and that she should have been offered a more managerial position.  She should have been acknowledged for the contribution she made for nine years.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 (“the UD Act”) provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

It is apparent therefore, that the burden of proof rests with the respondent to establish the substantial grounds that led them to dismiss the complainant.  Section 6(4)(b) of the UD Act provides that,

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

In the case of this complainant, the conduct that resulted in her dismissal is:

§  Her failure to take holidays when requested by the company;

§  Her refusal to attend an appointment with the company doctor;

§  Her refusal to attend work at an alternative site, when the site she worked at closed.

In the letter of dismissal dated January 10th 2023, this was described as “gross misconduct.”  It is the respondent’s case that the complainant’s refusal to comply with reasonable instructions under the three headings above left them with no alternative but to terminate her employment. 

Was the Decision to Dismiss the Complainant Reasonable in the Circumstances?

1.        Refusal to Take Holidays

From the documents submitted at the hearing, it is clear that the complainant resisted requests to take holidays in 2022.  By the time the investigation meeting took place on November 21st 2022, she had four weeks of annual leave left to take in that leave year.  Section 20 of the Organisation of Working Time Act (“the OWT Act”) opens by stating that,

(1) The times at which annual leave is granted to an employee shall be determined by his or her employer …

The use of the word “shall” in this clause makes it clear that the responsibility for deciding when an employee must take their annual leave rests with the employer.  This is an essential provision because certain sectors, such as construction, education and tourism need to close at specific times of the year and employees must be required to take their annual leave during the periods of closure.

The complainant didn’t work in an industry that was subject to a seasonal closure, but it is my view that it would have been reasonable for the respondent to insist that she went on holidays in the month of October or November 2022, or for some part of those months, while she was waiting for the Salesforce building to be more substantially completed.

Section 20(1) of the goes on to provide that leave shall be granted,

…having regard to work requirements and subject

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c) to the leave being granted -

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year[.]

(Subsection (iii) provides for the carryover of holidays for employees who are absent due to illness and is not relevant to the complainant’s case).

The complainant did not raise any issues related to her family responsibilities, but she said that she was saving her annual leave in case she was laid off.  When the respondent was recruiting for cleaning staff on a continuous basis, I find that there is no basis to the complainant’s concern that she might be laid off.  On many occasions, she was asked to take holidays, and she never raised a concern about being laid off.  I find that there is little merit in her explanation that she was worried about being laid off.

Having said that, it is my view that the respondent had a responsibility to give the complainant four weeks’ notice that she was rostered off work and that she would be on two weeks’ holidays.  This could have been done at any time from May 2022, when the issue of holidays was first brought to the complainant’s attention.  I find that the disciplinary sanction for not taking holidays was unnecessary and unreasonable.

2.         Refusal to Attend the Appointment with the Company Doctor

Having reviewed the evidence, it seems to me that the complainant’s reference to stress at the meeting on October 28th 2022 did not require an appointment with the company doctor.  I find however, that, having agreed to attend the appointment on December 16th, and, having requested a taxi to be brought there and back, when the taxi was on its way to collect her, it was unreasonable for the complainant not to attend.  While this is certainly cavalier and disrespectful, if the complainant had been dismissed for this reason alone, it is my view that this would have been a disproportionate sanction.

3.       Refusal to Attend Work at a New Site

Having rejected three offers of alternative sites, at the end of October 2022, the complainant was asked to re-locate to the Salesforce building on North Wall Quay, not far from where she formerly worked at Grand Canal Dock.  North Wall Quay is also closer to her home than Grand Canal Dock.  The job offered was for the same weekly hours, with the same start and finish times and for the same pay.  The complainant was informed that she would be responsible for looking after two floors of meeting rooms in the Salesforce building and she would not be required to clean toilets, mop floors or do hoovering.  She refused to attend work at the Salesforce building.  She claimed that there was no work for her there because the employees were not yet on site.

From the evidence of the complainant, she enjoyed the job she had on the Grand Canal Dock site, and that she had a very positive relationship with the client and staff there.  It seems that she was reluctant to start again on a new site and she thought that her experience gave her an entitlement to be offered a more managerial position.  This is not an unreasonable aspiration, but management jobs are generally advertised and appointments are filled after interviews and it was not reasonable to expect the respondent to convert the complainant’s job into a supervisory position.  Having checked the recruitment websites, I found that, on the day of the hearing, there were more than 300 open vacancies for cleaning supervisors, many in Dublin city, and it was open to the complainant to apply for one of these jobs.  Alternatively, she could have moved to the Salesforce site and waited for a supervisor’s job to come up with her current employer.

The requirement to move to an alternative site and to do a different job is provided for in the complainant’s contract of employment.  In the circumstances in which the site that she worked on for nine years closed, it was incumbent on the respondent to find her an alternative job.  It is my view that the alternative job offered to her was a suitable alternative and it was unreasonable of her to refuse to even try it out.

Conclusion

I agree with Mr Curran, and I accept as valid his reliance on the conclusion of the Labour Court in the DHL Express case, that the decision to dismiss the complainant for not taking her holidays and for not attending the company doctor was disproportionate and unfair.  However, in relation to the standalone issue of the complainant refusing to move to a suitable alternative role, with no changes to her terms and conditions of employment, I find that this was entirely unreasonable.  In these circumstances, when the complainant was offered a “like for like job” in a suitable location, it is difficult to think what other action the respondent could have taken.

In this regard, I must consider if, in accordance with s.6(1) of the UD Act, the complainant’s refusal to take up the alternative role was a substantial ground justifying her dismissal.  The respondent’s decision must fall within a “band of reasonableness,” first endorsed by the Court of Appeal in the United Kingdom in British Leyland UK Limited v Swift[2].  The Court found that there is a band of reasonableness within which one employer might dismiss an employee while another might keep them on.  If no employer would have dismissed the complainant, then I must find that her dismissal was unfair.

When the site that the complainant worked on for nine years closed, it was incumbent on the respondent to find her a suitable alternative site.  I am satisfied that the job offered was a suitable job in a suitable location.  It is my view that it was unreasonable for the complainant to refuse the offer of the new role and I find therefore, that the respondent’s decision to dismiss the complainant for gross misconduct was a reasonable response and that most employers in similar circumstances would have done the same. 

Mr Curran raised no issue regarding the procedures that ended with the dismissal of the complainant, and I find therefore, that, from a substantive and procedural perspective, the dismissal of the complainant was not unfair.

I have concluded that the decision of the respondent to dismiss the complainant was not unreasonable and I find that the process was fair.  On this basis, I decide that her complaint under the Unfair Dismissals Act is not well founded. 

The complainant’s evidence in relation to this complaint under the Redundancy Payments Act is the same as her evidence regarding her previous complaint under the Unfair Dismissals Act.  She suggested that she carved out a unique role working with the client in Grand Canal Dock, and that the respondent failed to offer her a similar job.  She argues that, when the site in Grand Canal Dock closed, her job was redundant and that she is entitled to a statutory redundancy payment.

The respondent’s position is that the complainant’s job was not redundant, but that, in accordance with her contract of employment, she was entitled to transfer to a suitable alternative job in a different, but suitable location.

The Relevant Law

Section 15(1) of the Redundancy Payments Act 1967 (“the RP Act”) Act provides that an employee will not be entitled to a redundancy payment if their employer offers to renew their contract or to offer them a new contract in the same “capacity” and on terms that are not different from their original job.  Section 15(2) addresses the possibility that an employer may offer an employee whose job is redundant a job in a different capacity and on terms that “differ wholly or in part” from their original contract:

(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.

To avoid the termination of her employment, the complainant was offered a job that she was capable of doing and for which she was skilled and experienced.  It is the complainant’s position that the alternative job was not suitable and that the changes to her terms and conditions of employment were not acceptable. 

The Offer of a Suitable Alternative Job

To reach a conclusion on this matter, I am required to consider the suitability of the job offered to the complainant, and then to consider if it was reasonable for her to refuse the offer.  An employee faced with the elimination of a job they have been happily doing for several years is in a different predicament to an employer seeking to utilise that employee’s skills and experience for the benefit of the business.  The employee considers her position from a personal and subjective standpoint, whereas, the employer looks at the situation objectively.  In its decision in the case of Garrett Brown and Isabella Di Simo[3], the Labour Court remarked on the two sides of this dynamic:

“In determining the within appeal, the Court is required to consider firstly the suitability of the offer of alternative employment made by the Respondent in writing on 21st November 2018 to the Complainant, and, secondly, whether or not the Complainant’s decision to refuse the offer was reasonable in all the circumstances.  In Cambridge & District Co-operative Society Limited v Ruse [1993] I.R.L.R. 156, the English EAT, when considering the similarly worded provisions of the British legislation, said that the question of

‘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 was offered the opportunity to continue to work for her employer, but assigned to a different client, because the client moved away from the site where she formerly worked.  While the complainant argued that the job offered to her was different, she did not specify what was different, apart from suggesting that the job she had been doing was more like the job of a concierge than a cleaner.  I am satisfied that the alternative job in the Salesforce meeting floors was also more like that of a concierge than a cleaner and I find that there would have been no disadvantage to the complainant if she had taken up this role.

In a Labour Court case heard in 2018, Cinders Limited and Celina Byrne[4], the Chairman, Mr Haugh found against the complainant when, on the closure of the shoe shop she worked in at the Merrion Centre in Dublin 4, she refused an offer of a similar job in Wicklow Street.  Ms Byrne told the Court that moving to Wicklow Street would not have caused any issues for her travelling to and from work.

Like the decision in Garrett Brown and Isabella Di Simo, in his determination on the Cinders case, Mr Haugh also referred to the Cambridge & District Co-operative Society Ltd v Ruse and the objective / subjective dynamic.  Finding that the claimant’s refusal to re-locate was unreasonable, the ease of the commute to and from work was a factor in the Court’s conclusion.  In the case we are considering here, the new location wasn’t a deciding factor for the complainant, but her subjective view is that she should have been offered an alternative role as a supervisor or manager.

Conclusion

It is my view that it was unreasonable for the complainant to refuse the offer of the alternative job.  As her job was not redundant, I find, that, in accordance with section 15(2) of the RP Act, she is not entitled to a redundancy payment.

For the reasons I have set out above, I decide that this complaint is not well founded.

Job change, unfair dismissal, suitable alternative role