In a recent case of the Workplace Relations Commission of A Cook v A Limited Company ADJ 0026299 the Complainant employee was awarded redundancy after the offer of suitable alternative employment made to her was found to be inadequate

Background

The Respondent (employer) closed its Dublin 14 premises, at which the employee in question worked. They wrote to the Claimant on the 12th August 2019 informing her that she was not entitled to redundancy as alternative work would be available at another premises in Barrow St and she was offered a right of appeal of its decision.

The Claimant did not consider the alternative post, which was not formally offered to her prior to the cessation of her employment, as suitable for her given the distance from her home, particularly in light of her responsibilities as a guardian of her granddaughter whom she collected and cared for after school each day, and for the effects a smaller kitchen with reduced ventilation may have on her health and due to the fact that she would have to drive and there was no parking at the new venue. The Claimant wrote to the Respondent on the 16th August 2019 raising her concerns and appealing its decision to refuse redundancy. The appeal was unsuccessful.The Complainant had also based her claim on the fact that she was not comfortable with driving the slightly extra distance and that she has the responsibility of collecting her grandchild after school during the week.

It was noted by the Respondent that Google Maps indicated the distance from the Complainant’s home address to the Respondents premises at Barrow Street, Dublin 4 would take approximately 21 minutes by car and was estimated to be 9.1km. Similarly, as calculated by Google maps, the commute from the Complainant’s home address to the Respondents former premises in the Office Park was estimated to be 4.1km in distance and 11 minutes by car. The Complainant also referred to the issue of collecting and caring for her granddaughter after school and believed if she was to continue her employment in the Barrow Street location this would interfere with her ability to continue this routine.

The Respondent submitted that the Complainant had never engaged with the Respondent when offered to consider alternatives as the Respondent was at all times open to suggestions and negotiating alternative working hours to accommodate the Complainant’s daily routine and her familial responsibilities. They also relied upon Section 15(2) as a defence below

Section 15 (2) of The Redundancy Payments Act 1967 provides that:

‘(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 to re-engage him under a new contract of employments,

(b)The provisions of the contract as renewed, or of the new contract, as to the capacity and place 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 the effect not later than four weeks after the date of termination of his contract,

(e)He has unreasonable refused the offer.’

In summary the Respondent employer stated that

“if there was a dismissal (which is denied), the offer of continued employment under the same set terms and conditions at a location equidistant from the complainant’s home (5/6 km more to Barrow Street), is an offer of suitable employment. It is further submitted that the employee has unreasonably refused that offer. It was open to the employee to temporarily accept to move to the unit in Barrow Street (per section 15 2A)) in order to ascertain if her concerns were valid, without having done so the refusal to work in Barrow Street was unreasonable”

Findings and Conclusion

The Adjudicator found that

“…..whilst the terms and conditions of the role were the same, the commute to and from the work place was substantially different. The complainant used to drive five minutes to get to work and she could avail of free parking. To get to the Barrow Street premises would require her taking two buses as there was no free parking available. She is 65 years of age and isn’t in the best of health. I accept her evidence that she felt it just wasn’t physically possible for her to do that commute daily”

It was also noted that “….when considering an alternative position offer, that the reasonableness of the employee’s decision must be looked at two-fold. First, the offer made by the employer must be looked at objectively and, second, the decision of the employee must then be looked at from a subjective stand-point. This position has been clearly set out in Employment Law, Second Edition at [19.123], where it states: “the question of suitability may be determined objectively, whereas the reasonableness of the employee’s refusal is subjective and must be considered from the employee’s perspective. Thus the employee’s perception of the alternative job must be taken into account.”

The Adjudicator concluded:

“Even though the respondent was willing to amend her working hours, that wouldn’t reduce the actually amount of time and effort involved in getting to and from work. It would also mean that she would not be available to collect her granddaughter from school. The complaint succeeds. The complaint is entitled to a redundancy payment based on the following details”