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WRC Considers Suitability of Alternative Employment Offered and Reasonableness of Employees’ Refusal in Two Decisions Issued on the Same Day

In the cases of Giancarlo Riozzi v Northway Personnel (ADJ-00047292) (the “First Case”) and Krzysztof Wisiniewski v Fohntechgroup (ADJ-00049834) (the “Second Case”) both Complainants lodged complaints with the Workplace Relations Commission (“WRC”) under Section 39 of the Redundancy Payments Act 1967–2014 (the “Acts”) seeking statutory redundancy payments on foot of initially being laid off, and ultimately dismissed. In both cases they were offered alternative employment which they turned down.

Facts: In the First Case, the Complainant had been a Supervisor of a construction site in Clonee on the border of County Meath and Dublin from 3rd January 2017 until 26th May 2023 when he was laid off, due to the work on that site having neared completion. He lived in Navan, Co. Meath. He was offered a position as a General Operative in Kilkenny almost immediately. He rejected this on the basis that it would have involved seven hours of travel each day and there was no suitable public transport. He also told the Respondent that he “would require a supervisor role”.  The Respondent explained to him that these roles often develop on site and there was scope for him to establish himself as a Supervisor on the site in time. It was also confirmed to him that his rate of pay would not change if he accepted the position on offer. The Complainant served an RP9 form on the Respondent seeking a statutory redundancy payment. The Respondent asked the Complainant to reconsider the offer made to him. The Respondent also offered the Complainant General Operative and Snagger positions in Blessington and Greystones in November 2023. The Complainant’s position was that the offers were not reasonable or suitable to his circumstances.

At the WRC hearing it was submitted on behalf of the Respondent that the Complainant was employed as an agency worker, and it was a term of his contract of employment that he may be required to work at different locations and for different clients of the Respondent. It was also submitted that it was the very nature of the construction business that construction workers would be required to work at different sites and locations. The Respondent argued that the Acts do not require an employer to provide an employee with an identical offer of employment, but rather an offer of employment on the same terms and conditions of employment, which it had done.

The Respondent referred to the UK case of Stevenson v Tees-side Bridge and Engineering Limited in which case the complainant rejected an alternative offer of employment as the opportunity for overtime was less, and he was subsequently dismissed for not turning up to work which the court in that case upheld. The Respondent argued that this supported its claim that there was no obligation on it to provide the Complainant with a “supervisor role”.

In the Second Case, the Respondent company had its head office in Tralee, County Kerry, and this was reflected in the Complainant’s contract of employment. The Complainant had been working on a site in Dublin for more than two years at the time when he was informed that he would be laid off. A week later he was offered work in Limerick, which he said would have necessitated a five-hour daily commute. The Complainant therefore refused this offer of alternative employment arguing that it was not reasonable to expect him to travel back and forth. While living and working in Dublin the Complainant had been provided with a “lodge” payment by the Respondent. His view was that the Respondent ought to have provided accommodation for him in Limerick and that an accommodation “support payment” was not sufficient.

The Complainant claimed that he was entitled to a redundancy payment on the basis of his dismissal. The Respondent’s argument was that the Complainant’s terms of employment provided that he could be assigned to work at client sites anywhere in Ireland or abroad and that despite significant effort on behalf of the Respondent, the only work they had available to offer was in Limerick. They had attempted to secure work for him closer to Dublin. The Respondent’s position was that the Complainant’s refusal to accept the alternative employment was unreasonable and, as such, he was not entitled to a statutory redundancy payment.


The Law

Section 15(1) of the Acts provides that an employee is not entitled to a redundancy payment if:

  1. his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,
  2. 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 is employment would not differ from the corresponding provisions of the contract in force immediately before [the termination of his contract],
  3. the renewal or re-engagement would take effect on or before the date of [the termination of his contract], and
  4. he has unreasonably refused the offer.

Section 15(2) provides that an employee is not entitled to a redundancy payment if:

The decisions in both cases were issued on the same day. The Adjudicators came to different conclusions despite the cases having similar facts – both contracts provided that the Complainants could be required to work for clients in different locations, both were offered work on the same terms and conditions of employment, and both Complainants refused the alternative offers.

In the First Case the Adjudicator, Gaye Cunningham, found in the Complainant’s favour and awarded him a redundancy payment, whereas in the Second Case the Adjudicator, Conor Stokes, refused the Complainant’s claim.

In the First Case, the Adjudicator considered (1) the suitability of the offer of alternative employment made by the Respondent to the Complainant; and (2) whether the Complainant’s decision to refuse such an offer was reasonable in all the circumstances. While the Adjudicator was satisfied that the Respondent had made bona fide attempts to retain the Complainant in its employment, she found that “the offer of a position involving such additional commute times and related costs is a change of such magnitude, when considered from the Complainant’s perspective, that the refusal was not unreasonable.” For that reason, the Adjudicator was satisfied that the Complainant was entitled to a statutory redundancy payment.

In the Second Case, the Adjudicator noted the Complainant’s argument that it was not reasonable for him to be required to drive five hours a day. However, the Adjudicator was of the view that as the Complainant would have been provided with an accommodation allowance (as he was when he was posted in Dublin), it was unreasonable for him to refuse the offer of alternative employment in Limerick which, he noted, was closer to the Respondent’s head office.

Takeaway for Employers: These cases highlight some of the relevant factors in considering the suitability of an offer of alternative employment in a redundancy scenario, and the reasonableness or otherwise of an employee’s refusal to accept such an offer. In circumstances where an employer offers an employee alternative employment, which the employee refuses, the employee will not be entitled to a statutory redundancy payment if the offer is regarded as suitable alternative employment and if his/her refusal is regarded as unreasonable.

There are two relevant matters that must be considered: (1) the suitability of the offer of alternative employment and (2) whether the employee’s decision to refuse the offer could be considered reasonable in the circumstances. The suitability of the offer is an objective test, whereas the reasonability of an employee’s refusal to accept an offer is a subjective test which must be considered from the employee’s perspective. What is reasonable for one employee may not be reasonable for another as it depends on an individual employee’s personal circumstances. A different conclusion may perhaps have been reached in the Second Case, for example, if the Complainant had demonstrated personal or family ties to Dublin which would have prevented him from being in a position to relocate to Limerick notwithstanding the provision of an accommodation allowance.




Authors – Nicola MacCarthy and Jenny Wakely

21st June 2024

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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