Complainant

Respondent

Parties

A  Cody

Arachas  Insurance

Complainant

Respondent

Parties

Ann Cody

Arachas Corporate Brokers  Limited

Representatives

 John McEvoy

Julie Galbraith Eversheds Sutherland

Act

Complaint Reference No.

Date of Receipt

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

CA-00066776-001

17/10/2024

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

CA-00066776-002

17/10/2024

The Complainant has accrued about 40 years’ service having commenced employment with a connected brokerage on or about August 2005.  Arachas acquired a brokerage firm, and the Complainant transferred to the Respondent on or about the 8th of September 2022.

The Complainant worked in a brokerage office based in Kilkenny, that was also near her home. The office was leased and after a year of operating the office, the new owners undertook a business review, and it decided that due to the low client and customer footfall to that office it would close. Most business had migrated to online renewal or phone calls.  The Kilkenny office was consolidated into the Respondent’s main regional office in Waterford.

A consultation took place with staff during October 2023 and one to one sessions took place with employees so that any concerns could be raised and any negative effects mitigated where possible. It is accepted that the Complainant raised no issues at the meeting or during this process.

The Respondent had agreed prior to the closure that the Complainant could work remotely from her home address on a full-time office.

The Complainant left employment with Arachas on or about the 22nd of March 2024 arising from the closure of the Kilkenny office and that her home is not a suitable alternative to working in an office. Her place of work was the Kilkenny Office, and her place of work now was Waterford which was entirely unsuitable. The Complainant stated that she always worked in an office, was front of house dealing with customers and that is the role she applied for. The alternative working at home is not suitable for her. She didn’t raise any issues initially as she is dependent on the salary and to lose it would cause hardship. She has found alternative suitable employment and that has allowed her to make the claim now.

In September 2022 the Directors of the Kilkenny business sold their interest to Arachas. The Complainant received her first payment from Arachas in October 2022. At the time of the sale, she was assured by the new management that “nothing would change only the name over the door”. However, in October 2023 the new owner announced the closure of the Kilkenny Office and the transfer of its operations to Waterford. The office closed in December 2023. After Christmas 2023 the Complainant sent her CV to several Brokers in the Kilkenny area and was offered a similar position in February 2024. The Complainant tendered her resignation in February 2024 and was put on “gardening leave” for her months’ notice which ended on 23/04/2024. Following this she applied to Arachas for a severance package which she felt was due to her. Arachas denied her claim and finally she took her Case to WRC. 3. Other consideration.

The Complainant has not adduced any evidence as to why the offer to work remotely from her home address did not constitute suitable alternative employment. From 9 October 2023 when the Complainant was notified that the Kilkenny Office would close, until her last day of employment on 22 March 2024, the Complainant did not raise any issues with the Respondent as to why this arrangement was not suitable. Furthermore, the Complainant did not invoke the Respondent’s grievance procedures. It is the Respondent’s submission that the Complainant’s resignation was voluntary. Following the closure of the Kilkenny office, the Respondent facilitated the Complainant with a full-time remote working arrangement which constituted suitable alternative employment. The Respondent respectfully submits that the Complainant has acted unreasonably in seeking a redundancy payment following her resignation.

Section 15 of the Act states:

Disentitlement to redundancy payment for refusal to accept alternative employment.

15.—(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 ,

(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.

(2B) Where—

(a) an employee’s remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and

(b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer, such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.

(3) Where a person who is entitled to a weekly payment has unreasonably refused suitable employment offered or approved by the National Manpower Service, that person shall be disqualified from receiving any further weekly payments.

The Office closed on or about the 1st of December 2023 and the Complainant worked remotely until she left that employment on or about the 22nd of March 2024.

The Complainant stated that her job changed fundamentally when she moved to remote working from being in a brokerage’s office. The Respondent stated that the role had changed while working at the office as how business was transacted had moved very significantly to online or to call centre sales activities. The requirement or preference of customers to go to a physical office had declined significantly. The changing nature of how business was transacted did not occur overnight and it is not accurate to describe the role while working at home as entirely different. The common features of working in an office and at home were very similar subject to the fact that all business changes over time.

The location or option to work at home is a suitable alternative and is deemed to be so where the parties have agreed to approve such work. That is what occurred in this case. No objection to remote working was ever made and it was offered so that travel to the Waterford Office would be kept to a minimum.

I note the following relevant case law cited in Arthur Cox Employment Law Yearbook 2014:

[1.128]

The reliance on mobility clauses and whether an employee is entitled to a redundancy payment when their place of work changes are considered in a number of cases in Chapter 21.

In Murphy & Ors v Orbit Security Ltd, 174 the EAT upheld the entitlement to a redundancy payment and noted that the alternative locations (in the Donegal region) were too far away for the claimants (who were based in Mayo). In Fitzpatrick v Greenberry Ltd, 175 the EAT noted the requirement on employers to act reasonably and responsibly in the operation of a mobility clause. The claimant was entitled to a redundancy payment in respect of a proposal to move her place of employment from Carlow to Waterford. In Heavey v Casey Doors Ltd 176 the EAT considered whether the decision of the claimant not to move location from Baldoyle to Balbriggan was reasonable and held that the claimant was entitled to a redundancy payment. The EAT noted that it was required to consider the employee’s subjective view of what was being proposed.

The test to be applied is a subjective one and in this case the Complainant stated she didn’t like remote working having worked all her life front of house.

Her place of work is Waterford and that was changed from her place of work in Kilkenny an office about 10 minutes from where she worked.

At face value it would appear that the Complainant has made out for a case for statutory redundancy

However, that assumes that through the consultation process about closing the office the Employer had been told by her that she had concerns about the proposed new working arrangement and that it was not going to work for her. The law does provide for some delay before a right to statutory redundancy is expunged.

That is not what occurred here. The Complainant stated that she couldn’t be without her job and only when she was successful in getting another job could she apply for redundancy; nearly 16 weeks after the office closed. She left the Respondent allegedly, as the remote working arrangement was never going to work for her. She obtained a new role in another Broker’s office which does not require remote working as the norm.

A consultation process began in October 2023 and the Complainant raised no issues or concerns during that process.

The office closed on the 1st of December 2023 and the Complainant worked remotely from then until she left the Company on 22nd March 2024.

The Act states that:

(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.

In this case the employee was offered suitable employment and carried out that role remotely, for more than four weeks.

Arising from the consultation process and the failure to object to the new working arrangement and having worked for more that 4 weeks in suitable employment, can she rely upon the Act by right to provide her with statutory redundancy, although having worked 16 weeks in the new role remotely?

While the test is subjective, it cannot be credibly argued that silence in this case was justified, and only would the Complainant assert her right to statutory redundancy if she found a better role that suited her preferences.

At its height it can be argued that the Complainant within 4 months of the office closing found another job.

However, the major obstacle to her case is she accepted the new working arrangements, she acquiesced and that in turn gave rise to a reasonable renegotiation of a contract term that she was bound by after a 4-week period of working the new arrangement.

If she had said before the 4 weeks working remotely; that she didn’t like the new arrangement, as remote working did not suit her, that would be a reason for supporting her case for statutory redundancy. Where the place of work changes to remote working a subjective assessment is required to determine if that working arrangement is suitable for the employee, especially if someone has worked in an office for all of their working life. For most employees it is welcomed; however, that does not mean it is suitable for all employees and that is where the subjective test can be relied upon.

The Employee chose to stay and worked at home until she resigned. On the facts I determine that she resigned from the Company as she participated in a consultation process that was fair and reasonable. A new term of employment was agreed upon. If that alternative suitable arrangement was rejected during the first 4-week period, she would not be bound by the new contract term. However, she continued to work from the 1st of December 2023 to the 22nd of March 2024 remotely and that period of 16 weeks consolidates the new agreed term, voluntarily entered into between the parties and means there is no basis to ground her claim for statutory redundancy.

On the evidence these two complaints are duplicate:

CA-00066776-001/002 and just be treated as one.

The Complainant is not well founded, and I dismiss the appeal for statutory redundancy. The Employment ended by reason of a voluntary resignation.

The Employee chose to stay and worked at home until she resigned. On the facts I determine that she resigned from the Company as she participated in a consultation process that was fair and reasonable. A new term of employment was agreed upon. If that alternative suitable arrangement was rejected during the first 4-week period, she would not be bound by the new contract term. However, she continued work from the 1st of December 2023 to the 22nd of March 2024 remotely and that period of 16 weeks consolidates the new agreed term, voluntarily entered into between the parties and means there is no basis to ground he claim for statutory redundancy.

Office Closure-Remote Working-Statutory Redundancy-Delay-Resignation