The question of alternative employment where a position is being made redundant is one I frequently have to deal with, especially in the last 12 months or so with the economic fallout in some sectors from the Covid pandemic.
The dispute tends to be straightforward.
The employee’s job is being made redundant and would like to be paid redundancy. The employer, however, says the employee is not entitled to be paid redundancy as an alternative offer of employment has been made.
By refusing this offer the employee is disentitling herself from a redundancy payment is the employer’s position.
A recent WRC decision in the case of Egilja Fersta and Cosy Tots and Co. Limited (ADJ-00029643) revisits this issue and it is worthwhile to take a look.
The employee had been a creche manager and had worked in the employment from February 2016 to August 2019. She was made redundant and made a claim to the WRC for redundancy.
Ms Fersta had been offered an alternative role as a Montessori teacher, but this involved a significant demotion and she did not believe this was a reasonable alternative employment. She relied on a Labour Court decision involving the same employer where the Labour Court held, in a similar case,
“A diminution in status and a reversion to the duties of a Childcare Assistant is, in the view of the Court, a reasonable basis for the Complainant to conclude that the offer is not one of suitable alternative employment. It follows, therefore, that the Court is satisfied that there was a redundancy and that a payment in respect of same is payable. It is not necessary for the Court to consider the issue of the commute time”
The employer’s position in this case was that the employee had refused the offer of suitable alternative employment and was not entitled to a redundancy payment.
Decision
The Workplace Relations Commission adjuciaton officer held that
“I find that the proposed move to the position of Montessori teacher entailing the loss of her manager’s position and answering to an additional two persons in positions of authority above the complainant reveals a level of responsibility below that of her previous role. I find that it does constitute a demotion.”
Therefore, it was reasonable for the employee to refuse this offer.
The employee was also offered a role where there was no demotion. But it was a verbal offer and would have led to additional travelling and childcare costs on account of its location.
The adjudicator referred to Cosy Tots & Co Ltd V Bernadette Conn RPD219 and the Labour Court’s finding that
The Court held that the time involved in cross- city travel
“leads the Court to the view that it was reasonable for the Complainant to decide that the offer made was not one that constituted suitable alternative employment”
The Adjudication Officer also found, in the instant case,
“I find that there would have been an additional commute of 40 minutes per day if using a car and a longer commute if travelling by bus. The distance between Nutgrove and Beaumont is 7 km in excess of the distance between Nutgrove and Barrow St. The Labour Court concluded that that same journey and associated travel meant that the job offer was not one that “constituted suitable alternative employment””
The Adjudication Officer also referred to Mr Garrett Browne Ms Isabella di Simo RPD1914.
The Labour Court in Mr Garrett Browne Ms Isabella di Simo RPD1914, in assessing the suitability of an offer and the reasonableness or otherwise of a refusal to accept an offer were guided by the decision of the English EAT in Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156, which stated that 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 Adjudication Officer held that the refusal of an offer of a Manager’s position in the Beaumont facility due to the factors personal to her was reasonable and decided the employee was entitled to a redundancy payment.
Ethel Ryan v Tesco Ireland Retailers ADJ-00032597
This October 2021 decision is one which involved the question of a suitable offer of alternative employment.
Ms Ryan worked for Tesco for 25 years, the last 17 years as a Personnel Manager.
Tesco intended carrying out a restructuring which would see Ms Ryan’s role being eradicated.
Ms Ryan had raised a number of grievances about the proposed change but these were not upheld.
Tesco offered Ms Ryan a Deputy Store Manager role in a different store. This Deputy Store Manager role had identical pay to the role Ms Ryan was losing. But other terms and conditions were not comparable.
For reasons personal to Ms Ryan she declined this offer and brought a claim to the WRC seeking a redundancy payment.
Tesco had also offered the opportunity to compete for a People Partner role but there was no guarantee of success in that competition.
Tesco argued she was not entitled to a redundancy payment as she had turned down suitable alternative employment.
The Adjudication Officer held that Ms Ryan was entitled to a redundancy payment. He determined that the alternative Deputy Store Manager role was a substantial move away from her chosen career path.
He also found that the People Partner role was not an offer of alternative employment as there was a competition for this job and only the possibility of an offer arose.
This case is instructive as the Adjudication Officer refers to the various cases which deal with the question of suitable alternative employment and the circumstances where it is reasonable for an employee to decline an alternative offer.