Complainant

Respondent

Parties

Orla  Lynch

Killucan Area Services Clg

Complainant

Respondent

Anonymised Parties

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Representatives

Sylvia Smith North Leinster Citizens Information Service

Michael O'Sullivan ARRA HRD

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-00062924-001

19/04/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent undertook to give their evidence under affirmation.  The opportunity to cross examine was offered but not availed of. 

Both representatives undertook to give evidence (if any was called for) under affirmation as both were involved in meetings with the other party prior to the complaint being lodged.  In the event, neither representative was called upon to give evidence. 

The complainant was informed that her employment was to cease as the employer was no longer operating in the field of Adult Education. She submitted that she was made an alternative offer of employment that was not reasonable. She submitted that it consisted of a six-month contract, on lower pay, and in a lesser role.  The complainant submitted that she needed to keep her competency levels up in order to find alternative employment. It was submitted that her rate of pay was due to drop from €16.24 per hour to €12.70 per hour which amounted to €85 less per week.

The complainant stated that the adult education role was due to finish but that she had given everything to the position. The complainant stated that the offer of alternative employment was not suitable given the cost-of-living crisis therefore she could not accept it. 

The complainant noted that although her contract mentioned moving on to alternative employment if the role ceased, it did not say that it she would have to move to a position with less favourable terms and conditions.

The respondent submitted that its adult education activities had to finish up and the complainant's role was no longer available. The respondent submitted that it is not correct to say that she was offered a six-month contract as she was on a contract of indefinite duration and was offered a continuation of that contract. It was noted that the alternative offered to her was suitable, but it was noted that although it was on a lower salary it came with a guaranteed review at the end of the year long.

It was submitted that the complainants transfer to other duties was provided for in her contract of employment which noted that where the employment ceased, she would be transferred to other duties that were carried out by the respondent.

The witness for the respondent noted that adult education had to finish up and it was anxious to keep the complainant. However, the only way to keep the complainant in employment was to offer this alternative, which was at a lower rate of pay, but she noted that it was a suitable alternative.

There is no dispute between the parties as to the existence of a redundancy situation.  Section 7(2) of the Redundancy Payment Act, 1967 states that

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(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, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

The parties agreed that the respondent would no longer be providing Adult Education services and as such Section 7(2)(a) applies.  The parties also agreed that the respondent offered an alternative employment to the complainant.

8.—(1) Notwithstanding anything in section 7, where an employee who has been dismissed by reason of redundancy or laid off has, during the period of the four years immediately preceding the date of dismissal or the lay-off, been laid off for an average annual period of more than twelve weeks, the following provisions shall have effect:

(a) that employee shall not become entitled to redundancy payment by reason of dismissal or lay-off until a period equal to the average annual period of lay-off over the said four-year period in relation to that employee has elapsed after the date of dismissal or lay-off;

(b) if, before the termination of the period required to elapse under paragraph (a), that employee resumes work with the same employer, that employee shall not be entitled to redundancy payment in relation to that dismissal or lay-off;

(c) if, before the termination of the period required to elapse under paragraph (a), the employer offers to re-employ that employee and that employee unreasonably refuses the offer, he shall not be entitled to redundancy payment in relation to that dismissal or lay-off.

The dispute arises concerning the alternative offer of employment: the respondent submitted that the alternative employment offered was suitable and that the complainant unreasonably refused it. 

The respondent conceded that the alternative employment was remunerated at a lower rate but submitted that alternative roles were provided for in the contract of employment.  The complainant suggested that the role amounted to a lesser role, was only a six-month contract and was at a lower wage.  The wage offered was the minimum wage of €12.70 compared with a wage of €16.24 in the former role.  This amounts to a wage reduction of almost 22%.  The complainant submitted that in the current cost of living crises, it did not amount to a suitable alternative employment.

I note that the job offer shows that the position was not simply a six-month position but would continue for at least the remainder of the calendar year. The question to consider is whether the refusal of the offer was reasonable in all the circumstances.

The alternative offer of employment incorporated a wage reduction of almost 22% and indicated no timeframe for revising the payment upwards. I am satisfied that the alternative offer would have lasted until the end of the calendar year.  The complainant submitted that it was not unreasonable for her to refuse to take up the offer of alternative employment citing the duration of the employment, the loss of status and not being able to keep her work-related competency level up.  She also cited difficulties in managing to live on a reduction of her salary to the minimum wage.

Having regard to the circumstances of this case, I find that it was not unreasonable for the complainant to refuse the offer of alternative employment.  Having carefully considered the evidence presented to me I am satisfied that the complainant was dismissed by reason of redundancy.   Therefore, I allow the complainants appeal against the respondent decision not to pay her a redundancy payment and conclude that she is entitled to a redundancy payment pursuant to section 7 of the Redundancy Payments Acts 1967-2014.

I allow the complainant’s appeal and I decide that she is entitled to a statutory redundancy payment pursuant to section 7 of the Redundancy Payments Acts 1967-2014 based on the following criteria:

·        Date of commencement of employment      19 March 2019

·        Date of termination of employment              26 January 2024

·        Gross weekly wage                                            €389.81

This decision is made subject to the complainant being an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts during the relevant period.

Redundancy Payment – appeal allowed