EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Gary Ramsey MN343/2015
- Appellant RP273/2015
against
Tesco Ireland Limited
- Respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr. J. O'Neill
Mr J. Jordan
heard this appeal at Dublin on 29th April 2016
and 24th June 2016
Representation:
Appellant: Mr Robert McNamara, Mandate Trade Union, 1/2 Emmet Place, Cork
Respondent: Mr. Eamonn McCoy, IBEC, Confederation House, 84/86 Lower Baggot Street,
Dublin 2
The decision of the Tribunal was as follows:-
It should be noted this appeal was heard in conjunction with MN296-305/2015. Both orders should be read in tandem.
At the outset the appeal under the Redundancy Payments Acts, 1967 to 2007 was withdrawn.
Background:
All appellants were employed as Night Crew workers in the respondent’s supermarkets in Letterkenny, Mallow, Tullamore and Bray.
The appellant were employed in the respondent’s Letterkenny supermarket as Night Crew.
Preliminary Issue:
A preliminary issue was raised by the respondent’s representative that the appellant agreed to avail of voluntary redundancy, each signed waivers in respect of other claims stated in the agreement, resigning their positions and therefore was not entitled to a payment under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
The appellant’s representative contends the appellants were unaware of the waiver concerning the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and had no alternative but to accept voluntary redundancy. They had not resigned.
It was agreed by all parties that two claimants, one from Letterkenny (MC) and one from Tullamore (JA) would give evidence on behalf of all the claimants named in this case and the case – RP273/2015. It was also agreed two witnesses, the Manager from the Letterkenny store (DC) and the Personnel Manager from the Tullamore store (EOR) would give evidence on behalf of the respondent company in this case and the case – RP273/2015.
On the first day of the hearing three of the ten named claimants were not present on the day of the hearing. The Union representative present stated he had no instructions in those matters. The representative for the respondent requested those claims be struck out.
The Tribunal struck out the three claims – RP297/2015 (EC1), RP302/2015 (EC2) and RP304/2015 (JN) under the Minimum Notice and Terms of Employments Acts, 1973 to 2005.
Respondent’s Position:
Correspondence was opened to the Tribunal relating to a document titled “Change in Night Replenishment Shift”. DC, the Manager of the Letterkenny store, stated he received this document on the 17th of November 2014 and informed all the Night Crew of its contents regarding the potential changes in the night shift which could be full or partial closure of the night shift. One to one meetings were then held with all staff. (minutes of these meetings were not available to the Tribunal).
Staff were offered four options including voluntary redundancy or a move to day work with a buy out. All staff encompassed in this and the claim RP273/2015 opted for voluntary redundancy.
DC told the Tribunal the final decision to cease the Night Crew was given by the respondent company in late December 2014. Two letters dated the 29th of December 2014 to MC were opened to the Tribunal. The first stated “We write further to your application for voluntary redundancy inclusive of all statutory entitlements. We can now confirm that your application has been accepted by the Company based on the terms of the application and your finish date being effective of 10th January 2015.” The second letter enclosed an RP50 form, the amount the respondent agreed to pay “inclusive of all statutory entitlements” stating it was a full and final settlement amongst other issues. The letter also enclosed an appendix listing various Acts including the Minimum Notice and Terms of Employments Acts, 1973 to 2005. MC signed the acceptance of the terms of the letter and received his redundancy payment.
Under cross-examination DC said he had no notes available of any meetings he had held with MC or any other Night Crew in respect of this issue. DC agreed MC had raised the issue of minimum notice and their meeting. When asked DC said the settlement payment did not give a breakdown of the payment made. When asked, DC said all relevant staff were paid any annual leave entitlements separately to the settlement agreement payment in their final weeks wages.
EOR, Personnel Manager in the Tullamore store gave evidence. She told the Tribunal that thirty staff were affected by the closure of the Night Crew shift.
On the 20th of November 2014 management at the Tullamore store were informed of the possibility of the closure of the Night Crew shift. All staff were advised of the possibility and spoken to about possible alternative options.
On the 27th or 28th of December 2014 the respondent made the decision to cease the Night Crew shift. All relevant staff were informed by the Store Manager and one to one meetings were held. JA, (claimant agreed to give evidence) was absent on leave at this time and due to return on the 13th of January 2015.
On the 13th of January 2015 EOR met with JA and his Union Representative to discuss the cessation of the Night Crew shift. JA informed EOR he was not ready to return to the day shift and stated he wanted to work out his notice. EOR offered him to work his notice for two weeks at a day rate on the day shift or four weeks in another store. JA was asked to consider the offer.
A second meeting was held on the 15th of January 2015. JA opted for voluntary redundancy but wanted to work out his notice on the night shift. EOR explained to the Tribunal that this was not possible as he would have been the only member of staff present in the store at night. JA would not work out his notice under either of the two options given to him. JA signed off on the agreement which stated it was “inclusive of all statutory entitlements.”
Under cross-examination EOR said she had met JA in November 2014 to discuss the options if the Night Crew shift was to cease. JA would not give her a definite answer. When asked EOR said she was not aware what the sanction, if any, if an employee did not choose an option offered if the Night Crew shift ceased.
EOR agreed JA had raised the fact that he had an issue with the level of notice he was receiving. JA told her he would accept the voluntary redundancy but would “look at minimum notice outside the store”.
EOR told the Tribunal that she had tried to contact JA while he was absent on leave to discuss the issue but to no avail but she had left a voicemail. When asked EOR stated that she was unsure if JA would have been entitled to any payment for any remaining annual leave but if he had it would have been paid in his final paycheque.
Claimant’s Case:
MC gave evidence. He stated that he had not resigned from his position but felt he was given no option but to accept voluntary redundancy. MC told the Tribunal that he, and others, had raised the issue of minimum notice and, in turn, their Union Representative had raised the issue with the respondent. MC told the Tribunal that during the Christmas period he was unable to contact his Union Representative and therefore could get no advice. He said that he felt he “was put on the spot” and had no alternative but to accept the redundancy package.
Under cross-examination MC said that he would have preferred to remain working for the respondent on night duties and said there was no suitable alternative to redundancy offered to him. When asked MC told the Tribunal that of the eighteen Night Crew, four of them took up the offer of day work.
JA gave evidence. He stated that EOR had approached him in November 2014 to discuss options if the Night Crew shift was to cease. He was handed two documents – a redundancy calculation and an option to of a buyout if he was to change to day work. JA told the Tribunal that he did not give EOR any answer and told her. He could not change to day work due to family circumstances.
Following annual leave he attended the store on the 12th of January 2015 to check his roster. He spoke to the Security Guard who informed him the Night Crew shift had ceased, his Union representative verified it. JA approached the Assistant Manager who said she could not discuss the matter with him. He was requested to attend a meeting the following day with EOR and the Store Manager. At this meeting it was informed of the situation and given the options of day shifts, voluntary redundancy and to work out his notice in an alternative store. JA was asked to consider the options and attend a second meeting on the 15th to advise them of his decision. If JA did not chose an option he would be rostered on day shifts.
JA attended the meeting on the 15th of January and advised EOR and the Store Manager he had no alternative but to take voluntary redundancy and advised them he would take a case for his notice with his union. JA told the Tribunal that at this time his Union Official was on annual leave and no one was available from the union for him or his colleagues to discuss the situation. He did ask the Store Manager to defer the meeting until the Union Official was available but was told no. He signed off on the redundancy payment on the 17th of January 2015. He was paid separately for his remaining annual leave entitlement.
Under cross-examination JA stated that he understood the meeting with EOR in November 2014 was only an information gathering exercise. He was never briefed the Night Crew shift was cease. When he asked why EOR was asking the questions she replied that she did not know. JA told the Tribunal, when asked, that he did not use voicemail and therefore did not receive any messages from EOR while he was on leave.
When put to him that his Shop Steward had attended the meetings of the 13th and the 15th of January with him he replied that she had not known what was going on.
Preliminary Determination:
It was agreed between the parties that two “test” claimants would give evidence for the purposes of the preliminary application, MC from the Letterkenny store and JA from the Tullamore store.
The respondent company proposed making changes to their “night replenishment shift”. They brought their proposed changes to the attention of the employee via the store managers on the 17th November, 2014. At that juncture staff were informed that the potential changes to the night shift could consist of either a full or partial closure of the shift. One to one meetings were held with each employee. Notes of those meetings were not made available to the Tribunal.
Staff were offered four options:
Option 1 . Transfer to a position in their existing, near of adjacent store.
Option 2. Career break with a buy out.
Option 3. Apply for an alternative vacancy.
Option 4. Voluntary redundancy.
For the purposes of this determination the only relevant option is option 4. Approximately 13 workers opted for redundancy. There was ambiguity in relation to which shifts were to close completely and which shifts were to close partially. JA sought clarity on whether or not the closure in the Tullamore store was going to partial or total. In November he reserved his decision until that issue could be clarified. On the 27th December it was confirmed that the night shift was closing altogether in the Tullamore store. JA then went on annual leave. When he returned on the 13th January, he had a meeting with the respondent. At that meeting the claimant specifically asked the respondent if he opted for redundancy would notice be paid to him. The notes of the meeting are silent as to an answer.
On the 15th January, 2015 JA opted for redundancy but stated that he did so with the express understanding that he would be claiming his minimum notice. The Respondent did offer the claimant an opportunity to work out his notice i.e. 2 weeks on days in Tullamore and 4 weeks on night in Naas. The claimant stated that at that time it was not known if there was actually a vacancy in those stores. The claimant also stated that as this all took place over the Christmas period his Union representative JMc C was not available to him. On the 16th January, 2015 the claimant signed the waiver which stated:
“We write further to your application for voluntary redundancy inclusive of all statutory entitlements. We can now confirm that your application has been accepted by the Company based on the terms of the application and your finish date being effective of 10th January, 2015” I JA hereby confirm I have requested voluntary redundancy and agree to the details contained in the above.
A second letter dated the 16th January, 2015 stated:
“On termination date you will be furnished with the following items subject to the terms and conditions contained in this letter
a) RP50
b) The company agrees to pay you an amount of € ( the settlement sum”) which is inclusive of all of you statutory entitlements. This payment will be paid in the most tax efficient manner, subject to revenue rules. “
I JA herby acknowledge receipt of the above letter. I confirm that I have read the letter carefully considered its contents and I fully understand its terms and effect. Having done so, I hereby accept its terms in full” Signed JA.
The Appendix to the letter sets out all of the Acts that are encompassed in the terms “all statutory entitlements”. They are
- The Minimum Notice terms of Employment act 1973-2005
- The Redundancy Payments Acts 1967 – 2011
- Unfair Dismissals Acts 1977 to 2007
- The Organisation of Working Time Act, 1997
- The Payment of Wages Act 1991
- The Employment Equality Acts 1998 – 2011
- The Industrial relations Acts 1946 – 2012
- The Terms of Employment ( Information )Act, 1994 – 2012
- The Safety, Health and Welfare at Work Act, 2005.
It is worth noting that despite The Organisation of Working Time Act 1997 being listed in the Appendix, a separate additional payment was made to employees in relation to their holiday pay.
MC signed his waiver on the 9th January, 2015.
On the 7th January, 2015 CC the Mandate Divisional Organiser having returned to work following the Christmas vacation wrote to the respondent ( Letterkenny Store) stating:
“To date it hasn’t, and consequential of your management directive vis a vis the night crew line managed that the affected staff must sign off this paperwork by the end of the week or they will be rostered by you onto days for the following week. I am thus writing to you that I have advised the same members to sign the paperwork on a without prejudice basis. In the event that their minimum notice requirements are not met by the company or in the absence of a company /union agreement on this issue, the signing off on the aforementioned paperwork will not preclude mandate exercising the appropriate challenge, and this correspondence serves as formal notification of the same and the context in which my members have has to endure throughout the tail end of this business”
MC received a payment of € 41,398.00. His salary was € 689.97 gross per week. He was employed from the 25.03.2003 to 10.01.2015. His statutory entitlement amounts to 24.62 weeks, €14,772.00. His “all statutory entitlements” payment, 3 weeks per year of service amounted to € 26,626.00”
JA received a payment of € 32,394.94. His salary was € 647.90 gross per week. He was employed from the 02.02.2005 to 10.01.2015. His statutory entitlement amounts to 20.90 weeks, €12.540 .00. His “all statutory entitlements” payment, 3 weeks per year of service amounted to € 19,854.94.00”
The respondent herein submits that the claimants signed the waiver having first received advices from their Union representatives and in full knowledge of what was contained in the agreement. They content that seeking advice from a Union representative satisfies the legal requirement to seek independent legal advice before entering into an agreement.
In Hurley v-Royal Yacht Club [1997] E.L.R. 225 Judge Buckley in the Circuit Court considered "under what circumstances can claims be legitimately compromised"? He stated:
"In several areas of the law the Supreme Court has held that any consent by a person to waive a legal right which that person has must be an informed consent. This doctrine must surely apply to contracting out provisions and to section 13 in particular".
(the judge then having reviewed various determinations of the Employment Appeals Tribunal) continued as follows:-
"I am satisfied that the applicant was entitled to be advised of his entitlements under the employment protection legislation and that any agreement or compromise should have listed the various Acts which were applicable, or at least made it clear that this had been taken into account by the employee. I am also satisfied that the applicant should have been advised in writing that he should take appropriate advice as to his rights, which presumably in his case, would have been legal advice. In the absence of such advice I find the agreement to be void."
Sunday Newspapers Ltd –v- Kinsella & Bradley 2007 IEHC 324 In that case a Rights Commissioner heard complaints under the 2003 Act brought by the two Defendants ("the claimants"), both of whom are members of the Technical, Engineering and Electrical Union (T.E.E.U) ("the Union"). The Plaintiff company ("the company") submitted that both claimants had signed a severance agreement which, inter alia, stated as follows:-
"Lump SUM
This is in full and final settlement of any and all outstanding entitlements whether statutory or otherwise, e.g. Notice Pay, Collective Agreement Notice, Holidays, Statutory Redundancy, and any other discretionary payments/allowances. This is subject to the Parting Terms document."
"Acknowledgement
This agreement is based on any/all claims in relation to my employment with Sunday Newspapers Limited and/or Terenure Printers Limited, stated or as yet un-stated, being fully resolved (including, but not limited to all claims under the Unfair Dismissals Acts, the Minimum Notice and Terms of Employment Acts, the Protection of Employment Acts and the Redundancy Payments Acts and all or any employment legislation). I have read and understand the above agreement and by my signature below acknowledge and accept the terms in full and final settlement."
The Rights Commissioner having considered the submissions of the parties found that the claimants voluntarily, and with the benefit of the representation of their Union, accepted a severance package and signed a waiver that confirmed their acceptance of the terms "in full and final settlement" and accordingly, found against the claimants. That decision was appealed to the Labour Court pursuant to S.15 of the Act of 2003. The appeal was successful and it was determined that the complaints were well founded and that the claimants who had received €20, 541.36 and €30, 103.03 respectively on the signing in July 2006 "in full and final settlement of all claims and entitlements" were entitled to further monies of €27, 752.08 and €40, 483.85 respectively. That decision was appealed.
Smyth J. Stated: If the claimants believed as determined by the Labour Court they could not credibly or at all sign "in full and final settlement". If the claimants or either of them signed the severance Agreement in the form in which they did with the intention of taking further action in the matter - they so deceived the company (Appellant employer), that makes a sham and a mockery of seeking to conclusively resolve an employment dispute. In my judgment the Labour court erred in law in allowing the claimants to consider as void the severance Agreement because they mistakenly believed they had been advised that s.12 of the 2003 Act meant that the severance agreements would not preclude them from bringing claims pursuant to the 2003 Act.
The test which has evolved following a series of Judgements on the issue is now clear. Meaningful discussion in relation to the terms of the agreement should take place. The employees must be advised, in writing to seek independent legal advice prior to entering into an agreement. Advice from a Union representative is sufficient. The agreement into which the parties are entering should be clear and unambiguous. Undue pressure or influence should not be placed on the individual, in this case, the employees prior to signing the document.
The timing of the proposed changes to the working practices left a lot to be desired. The employees were put on Notice of the pending change in late November however at that juncture the respondent was not in a position to inform the employees whether or not there would be a night shift in their stores following completion of the process. It was unreasonable for the respondent to request staff to make a decision on their future without first giving them all of the facts. That information was finally made available to staff on the 27th December, 2014, when many of them and their Union Representatives were on leave. There can be no doubt that when AJ and MC signed the waiver the respondent was on full written notice that they were only doing so on a without prejudice bases in relation to the minimum notice issue. That point differentiates this case from the Sunday Newspapers case. Furthermore, AJ was on annual leave over the Christmas period and did not have an opportunity to seek any advice prior to signing the document. The Tribunal are also satisfied that undue pressure was placed on the claimants to sign the document within a specific timeframe or they would be placed on the day shift. Unsuitability of the day shift was the very reason they had opted for the redundancy in the first place. The Mandate letter of the 7th January, 2015 was written due to the very short timeframe given to the claimants to sign the letter before the respondent moved them onto the day shift. Neither claimant could work on a day shift due to their family arrangements and therefore felt they had no option but to sign it. Both claimants signed the waiver after the company were put on notice in relation to the Minimum Notice issue. Furthermore, it is worth noting that the respondent itself acted outside the terms of the waiver when it made separate and additional payments in relation to the Organisation of Working Time Act.
The Tribunal find that it does have jurisdiction to hear the substantive matter.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)