Facts
This Appeal concerned a complaint under the Redundancy Payments Acts 1967 -2014 (the Act) which was held not to be well founded.
The Complainant/Appellant had worked for the Respondent hair salon in excess of 15 years. The Respondent proposed to sell their premises at Harold’s Cross and move to another unit within Nutgrove shopping centre, but located above an existing salon. The Appellant was offered a position under the same terms and conditions as she previously held and it was shown that the location of the new salon was essentially equidistant from her home as the old Harold’s Salon. However, the Appellant did not accept the offer and argued that it was merely a sham to avoid a redundancy payment.
Decision and Conclusions
The Court in making its decision considered two matters:
The Court determined that the Respondent at all times acted bona fides and the offer to continue her employment uninterrupted at the new premises was a genuine offer. The Court was not satisfied that the transfer of the business to the new premises was a sham or sharp practice by the Respondent and in the circumstances was a suitable offer of alternative employment.
The Court in addressing Section 15 of the Act was of the view, there was a facility for the Appellant to carry out her work in the new premises on a trial basis for 4 weeks while retaining her right to a possible statutory redundancy payment. Such a facility even on a trial basis would have alleviated any concerns the Appellant had in relation to her client base. The Appellant’s refusal of the offer was sufficient for the court to determine that any concerns were unsubstantiated.
Having regard to all the circumstances, the Court was satisfied that that the offer made to continue employment under the same terms and conditions amounted to suitable alternative employment under Section 15 of the Act. The Appellant’s refusal to accept the offer was unreasonable and the Court upheld the decision of the Adjudication Officer she was not entitled to any redundancy payment.
Comment – It will be interesting to see the use of this decision in respect of failure by an employee to mitigate his/her loss by not taking up an alternative position for a trial period of 4 weeks where a redundancy is challenged under the Unfair Dismissal Acts.
Link: https://www.workplacerelations.ie/en/cases/2019/september/rpd1914.html
9th October 2019
Anne O’Connell Solicitors
Fitzwilliam Hall
Fitzwilliam Place
Dublin 2.
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