Key Learnings
The Employee in this instance ceased employment because their place of work closed. They were offered the same position in a nearby pharmacy, although this was not seen as a reasonable alternative according to the employees’ requirements. For this reason, the employee wished to be made redundant. It is important that when any potential at risk process arises that the Employer considers both the objective and subjective realities of a proposed alternative position, in particular where the Employee is not in agreement. Applying a thorough and transparent consultation process is essential to determining the outcome in a redundancy situation and when there is disagreement as to whether a dismissal occurred or not, records of the consultation process are necessary in demonstrating the reasonableness of the Employer.
Background
The Complainant commenced employment with the Respondent on 24th November 2003. While the date and fact of termination are in dispute, the Complainant has submitted that her employment terminated on 5th May 2022. The Complainant was a full-time permanent employee, in receipt of an average weekly wage of €1,853.19.
On 23rd June 2022, the Complainant referred the present complainant to the Commission alleging that in circumstances where the Respondent closed the pharmacy in which she worked, she was entitled to a redundancy payment. In denying this allegation, the Respondent submitted that they offered the Complainant a reasonable alternative to redundancy, and that her failure to accept the same disqualified her entitlement to statutory redundancy.
At the outset of the hearing the Respondent raised a preliminary issue as to jurisdiction. They submitted that as the Complainant had not resigned, and in circumstances whereby she had not been dismissed by the Respondent, the contract of employment had not been terminated. As a consequence, the Respondent submitted that the Complainant did not have the protection of the Act.
Summary of Complainant’s Case
The Complainant was employed as a Supervising Pharmacist in the Respondent’s pharmacy in Newbridge, County Kildare on 24th November 2003. On 30th January 2022, the Respondent requested that the Complainant redeploy to the their Naas premises. The Complainant refused this move as it was further from her home and would involve a longer commute. No mention was made at this point regarding the future of the Newbridge premises.
On 28th March 2022, the Respondent announced that the Newbridge pharmacy was to close in the coming weeks. The following day, the Complainant requested that the Respondent set out the proposed terms of her redundancy. On 30th March, the Complainant was informed that her role was not at risk and that the Respondent intended to transfer the Complainant to their Naas store. In so doing, the Respondent sought to rely on a misquoted clause of the Complainant’s contract of employment. The relevant clause in her contract stated that, “the Company may, with your consent, redeploy you at any other location within the area”. The Respondent sought to rely on the clause without the crucial stipulation that such a move must be with the Complainant’s consent.
Thereafter, the Complainant attended a number of meetings with the Respondent regarding the matter. In the course of these meetings, the Complainant explained her position as to why she believed that the proposed move to Naas was not a reasonable alternative to her employment and stated that she should be made redundant. Whilst the Respondent did concede that any such move must be made with the Complainant’s consent, they insisted that the option of moving to the Naas premises was a reasonable alternative to redundancy.
Having fully engaged the internal procedures in relation to this matter, the Complainant, via her representative, corresponded with the Respondent on 23rd May 2022, stating that she had been made redundant by virtue of Section 7 of the Act and considered herself dismissed. The Complainant again confirmed this position by correspondence of 23rd June 2022, stating, without caveat, that she believed herself to be dismissed and setting out her intention to pursue the present complaint.
In evidence, the Complainant stated that she had worked in the Respondent’s Newbridge premises for almost twenty years. She stated that this particular location was particularly advantageous to her in respect of her domestic affairs. She stated that much of her day-to-day scheduling was based around her place of work. In this regard, the Complainant stated that this was the reason she accepted a role so close to home in the first place. In evidence, the Complainant outlined why exactly she believed that the role in Naas was not suitable for her. The nature of the Complainant’s role is that she is always required to be on premises, the role does not lend itself to flexibility in this manner. The Complainant stated her working hours at the new location would be the same.
By submission, the Complainant representative stated that the offer of continued employment in the Naas premises clearly did not constitute a reasonable alternative to redundancy, and consequently, the Complainant is entitled a statutory redundancy payment.
Summary of Respondent’s Case
The Respondent agreed with much of the factual matrix presented by the Complainant. In this regard they did not call any direct evidence to contradict the Complainant’s evidence. Nonetheless, they submitted that the contract of employment had not been terminated and, consequently, the Complainant did not enjoy jurisdiction to being the present complaint. In the alternative, the Respondent further submitted that they offered the Complainant a reasonable alternative to redundancy and that her failure to accept the same disentitles her to a statutory redundancy payment.
The Respondent accepted that the Newbridge pharmacy, the Complainant’s sole place of work, closed on 5th May 2022. However, they submitted that the Complainant was offered the choice of two identical positions within the Respondent, a position in Baltinglass Co. Wicklow and a role in Naas, County Kildare. The Respondent was of the view that the role in Naas represented a particularly reasonable option for redeployment. Given that the Complainant already drove to the premises in Newbridge, this represented a further daily commute of just over ten minutes. While it was apparent that the Complainant had certain misgivings in relation to this transfer, the Respondent met her on numerous occasions in relation to the same and offered a once-off payment of compensation to the Complainant for the additional time spent travelling. The Respondent also offered to review the Complainant’s working patterns to ease the transition.
In summary, the Respondent submitted that they did not dismiss the Complainant and she did not resign. They further submitted that while the branch the Complainant had worked in closed, the Respondent itself had numerous other roles the Complainant could move to. They stated that the Complainant’s contract of employment contained an express mobility clause in relation to such transfers. Finally, they submitted that the proposed transfer to the Naas branch was a perfectly reasonable alternative to redundancy and the Complainant’s failure to accept the same disentitled her to a redundancy payment.
Findings and Conclusions
The Respondent has submitted that in circumstances whereby the Complainant did not resign, and she was not dismissed, no termination of employment occurred and consequently the Complainant has no jurisdiction to being the present complaint.
In this regard, it is apparent that the Complainant is entitled to resign her contract of employment and claim statutory redundancy so long as the same is “by reason of the employer’s conduct.”
Notwithstanding the foregoing, the Respondent has submitted that the Complainant did not actually resign her contract of employment. In this regard, they submitted that she engaged with the Respondent under their grievance procedures after the closure of the branch where she was engaged.
Notwithstanding the foregoing, on review of the relevant correspondence, it is apparent that the Complainant evidenced her intention to resign on numerous occasions. In particular, by correspondence dated 23rd May 2022, the Complainant’s solicitor advised,
“Our position is that our client’s role has been made redundant by operation of Section 7 of the Redundancy Payments Act and our client is therefore dismissed.”
The correspondence goes on to state that unless the Respondent was to pay statutory redundancy, the matter will be referred to the present forum. The correspondence also states that the Complainant intends to secure alternative employment.
Having regard to the foregoing, it is evident that the Complainant’s correspondence of 23rd May 2022 sought to the bring the contract to the end. While the correspondence does not specifically mention the word “resignation” the combined extracts quoted above clearly indicates an intention on the part of the Complainant to end the contract, albeit on the grounds of redundancy. The Respondent’s subsequent refusal to accept this termination on these grounds does not negate this intention.
Having regard to the foregoing, the Adjudicator finds that the Complainant’s contract of employment was terminated by at least 23rd May 2022.
The Complainant has alleged that by virtue of the Respondent closing the premises where she was located, she is entitled to a statutory redundancy payment.
The factual matrix in respect of this portion of the complaint is largely agreed. The Complaint worked in the Respondent’s Newbridge premises for over 18 years. On notice of the closure of the same, she was offered a role in the Respondent’s Naas branch. While the Complainant lived close to the former premises, she did drive to work. Under the terms of the proposed amendment, she would be required to drive the additional portion of the journey to the Naas premises. The adjudicator stated that it was apparent that this offer meets the first, objective portion of the test. The Complainant was offered the same role, on essentially the same terms and conditions, in premises that isn’t particularity geographically distant from the prior role.
The adjudicator went further and noted that regard must be had to the subjective reasonability of the Complainant’s refusal of the offer. In this regard, the Complainant stated that the reason she initially accepted that role was that it was close to her home. She stated that she had a busy domestic life and the fact that she was on hand should an emergency arise was particularly important to her. She further stated that while the alternative role might now be far away geographically, the route she would have to take in the mornings and evenings suffers from particularly bad congestion. The effect of this is that the proposed move would add hundreds of hours of commuting time yearly, something she intended to avoid in securing employment so close to her home.
In consideration of these points, the Adjudicator finds that considering the matter from the Complainant’s subjective point of view, her decision to refuse the offer was reasonable in the circumstances. From the evidence provided, it is apparent that the Complainant attended the same place of work for almost twenty years. It is further evidence that the Complainant organised a good portion of her domestic life around her place of work. Her evidence regarding her rationale for selecting this place of work is perfectly reasonable, as is her reluctance to introduce a significant amount of commuting into her daily life. These points are further evidenced by the fact that the Complainant secured a role in similar proximity to her home following the termination.
The Adjudicator also noted that the mobility clause contained in the Complainant’s contract states that any proposed re-location must occur with the express consent of the Complainant. The natural inverse of the same is that the Complainant enjoys the contractual right to object to a transfer of employment, a right she consistently exercised throughout this process.
Having regard to the accumulation of the foregoing points, the Adjudicator finds that the Complainant acted reasonably in declining the Respondent offer of an alternative role. In such circumstances the Complainant is entitled to a statutory redundancy payment and, consequently, her appeal succeeds.
Decision
Having considered all of the information presented and giving appropriate weighting to the direct evidence adduced, the Adjudicator is satisfied that the Complainant has established the existence of a redundancy situation and the appeal succeeds.
The Adjudicator finds that the complainant is entitled to a statutory redundancy payment based on the following:
Date employment commenced: 24th November 2003
Date Employment ceased: 5th May 2022
Gross Weekly wage: €1,853.19
The entitlement is contingent on the complainant having been in insurable employment in accordance with the Social Welfare Acts for the relevant period.
If your Organisation needs advice, support, or guidance in relation to compliance requirements when managing a redundancy process, please contact Adare Human Resource Management call (01) 561 3594 or email info@adarehrm.ie.
Adare Human Resource Management is a team of expert-led Employment Law, Industrial Relations and best practice Human Resource Management consultants.