ADJ-00003892

ADJUDICATION OFFICER DECISIONS & RECOMMENDATIONS

Adjudication Reference: ADJ-00003892

Parties: 

Complaints:

Date of Adjudication Hearing: 25th November 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 20th June 2016, the complainant referred complaints to the Workplace Relations Commission pursuant to the Terms of Employment (Information) Act, the Maternity Protection Act and the Industrial Relations Act. The complaints were scheduled for adjudication on the 25th November 2016. The complainant attended the adjudication and was represented by SIPTU. Two witnesses attended for the respondent and it was represented by IBEC. The complainant is a sales merchandiser and the respondent is a distributor of cosmetic and other products. 

In accordance with section 41 of the Workplace Relations Act, 2015 and section 13 of the Industrial Relations Acts 1969 following the referral of the complaints to me by the Director General of the Workplace Relations Commission, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant challenges alterations to her contract of employment implemented around the time of her return from maternity leave. She seeks redress pursuant to the Terms of Employment (Information) Act, the Industrial Relations Act and the Maternity Protection Act. The respondent denies the claims.

Summary of Complainant’s Case:

The complainant commenced employment with the respondent in 2005 and was provided with a written contract of employment in 2007. The contract refers to her use of a company vehicle and a mobile phone. It states that she works 40 hours per week. Her role is that of sales merchandiser, where she travels to various retail stores to stock shelves with the respondent’s products. She attends various large supermarkets, naming eight stores located generally around the M50 and beyond. The complainant returned to work after a period of maternity leave on the 2nd August 2011 and found that, she no longer had the use of a company motor vehicle. She outlined that her working week was reduced to three days per week on the 23rd October 2011. The respondent said that this was due to a downturn in business. The complainant outlined that she did not agree to work a three day week in 2011 and nor had she agreed not to have use of a company car. At this time, she did not have her own car and the decision of the respondent not to provide her with a company car meant that she had to borrow to acquire her own car. Her Line Manager had given an 8-week period where she worked a full week and had told her that they would kick the can down the road. The respondent, however, offered her a contract for a three-day week. She had refused to sign this contract as she had a permanent, full-time contract. She outlined that the conversation of the 23^rd October 2011 had taken place in the Line Manager’s office. The Line Manager had said that he would speak with HR and later returned to say that the respondent did not have the hours. It is submitted that the reduction in the complainant’s working week is a breach of the Maternity Protection Act. The complainant said that while she returned to a three-day week in 2011, she had requested that her hours be increased. She referred to the fact that there were call-backs to her stores, but that other colleagues had been sent in her place. Commenting on the retirement of a named colleague, the complainant had asked to do her calls to pharmacies as she was the only cosmetic merchandiser not to do such calls. She noted that the retired colleague’s role was filled by a relation of this colleague. This relation was facilitated with greater hours and provided with a company car. She also did pharmacy calls. The complainant had consistently asked for greater hours and for five days’ work and while she only later submitted a formal grievance, hindsight is a great thing. In respect of one named colleague, the complainant outlined that this colleague’s contract did not provide for a company car yet she was provided with one. The complainant also denied receiving a letter in 2011 regarding the reduction in hours been implemented to stave off redundancies. In respect of the respondent’s reference to 11 of 12 merchandisers not being supplied with company cars, the complainant said that this had applied to cosmetic merchandisers and that this had been a different role to hers. Her duties had been assigned by her Line Manager. The complainant acknowledged that one named colleague was more senior to her and two others had additional service. 

The complainant outlines that the respondent suggested she avail of redundancy and that this would be calculated according to her reduced working week. The complainant asserts that it should be calculated according to her contractual working week, i.e. five days. She asserts her pension entitlements should also be assessed over a five-day week. The complainant outlines that she continually raised her wish to return to a five-day working week, but the respondent did not accede to this. The complainant claims redress for two credit union loans in purchasing a car and weekly loss of income of €70. The claim made pursuant to the Terms of Employment (Information) Act is that the complainant was not provided with a statement in accordance with section 5(1)(a) as notification of changes made to the terms and conditions of her employment.

Summary of Respondent’s Case:

The respondent denies the claims. It asserts that while it had provided the complainant with a mobile phone in August 2011, it had replaced this with a weekly allowance of at least €10 as she did not wish to carry two phones. In respect of the car, the complainant’s schedule no longer required her to have a company vehicle as the distances were not as great. Other colleagues also no longer had access to a company vehicle and 11 cosmetic merchandisers did not have company vehicles. The respondent submitted that the complainant had not challenged her part-time role in the years between 2012 and 2014, and therefore she had accepted this as her role. The respondent submits that when redundancies were considered in 2014, it was appropriate to calculate her entitlement to a redundancy lump sum payment according to a three-day working week. The complainant did not submit an application for the 2014 voluntary redundancy scheme. In 2016, the complainant raised other issues regarding her employment affected by her three-day working week, including pension contribution and service days. The respondent outlines that the Terms of Employment (Information) Act claim cannot succeed as the complainant had been provided with written notification of her three-day week within two months of the change. It is submitted that the Maternity Protection Act claim is out of time as it relates to her return to work in July 2011. In respect of the Industrial Relations Act claim, the respondent submits that it engaged with the complainant’s grievance and the other issues she raised. The respondent denies that the complainant repeatedly raised her hours and that the respondent had complied with the Redundancy Payments Act in its calculation of her entitlement to a redundancy lump sum payment.

In evidence, the Line Manager said that in 2011 he and the complainant had agreed that she would work a three-day week. They had discussed the complainant easing herself back through a three-day week. There would then be a review regarding moving to a five-day week, in particular in the light of significant changes in the respondent’s relationship with two leading retailers. Other staff had been put on three-day weeks, for example three full-time staff had been reduced to part-time roles and eight others had reduced hours. Three full-time staff in Leinster retained their hours. These changes took place in October 2011. The Line Manager outlined that letters had been issued to staff to say that their hours were being reduced. He said that he believed that one such letter had been sent to the complainant. It had been intended that these reductions would be a short-term measure. The respondent was going through a six month period of volatility and that this measure had been introduced to kick the possibility of redundancies to touch for a time. The respondent had wanted to keep staff, despite receiving sign off in 2014 to make redundancies. He acknowledged that the complainant had worked additional hours, but some work had to be completed when the complainant was not working, for example addressing stands that were reported to the respondent to have fallen into poor condition. The Line Manager acknowledged that in the last two years, the complainant had sought additional hours, although he could not recall the position in 2012, a time when everyone was concerned for the their roles. In respect of the engagement of agency staff, the Line Manager said that there was a constant challenge to address busy or lax periods, and agency staff were needed to carry out updates. He commented that the call-backs to three stores identified by the complainant occurred when the work had to be completed on the day in question and that this could not be changed. The Line Manager acknowledged that a named colleague had done another colleague’s call. He said that there had been two full-time merchandisers doing pharmacy calls but this was being reduced. This had been evolving over the previous three years. Commenting on the position of two named colleagues, he referred to their seniority and their service of 18 and 13 years respectively. He acknowledged that calls had been undertaken by a relative of a retired colleague, generally on Tuesdays and Wednesdays. He outlined that the complainant had agreed to use her own car and he could not be sure whether she had owned a car in 2011. He commented that she had never raised a grievance on this matter. The Line Manager outlined that the loss of the company car was attributed to the complainant’s three-day week and that it was too expensive to provide such a facility for a part-time role. The respondent would otherwise bear the full cost of depreciation, servicing and wear and tear. He said that one named full-time colleague was the only one who had use of a company car. He commented that the complainant had not pressed the hours and car issues in her dealings with a trade union. The HR manager outlined that Brexit posed particular challenges for the respondent and it was now contemplating redundancies. It was liaising with the trade union regarding these challenges.

Findings and Conclusions:

The complainant is a longstanding employee of the respondent, having commenced her employment in 2005. She remains in employment and her role involves attending retail outlets to which the respondent supplies goods, including cosmetic goods. The claims before this adjudication are made pursuant to the Terms of Employment (Information) Act, the Industrial Relations Act and the Maternity Protection Act. 

At the heart of this case is the fact that as of the 23^rd October 2011, the complainant’s days of work were reduced from five days per week to three days per week. At the adjudication, there was significant conflict between the parties as to whether the complainant had asked that her hours be increased to five days in 2011 and thereafter. The respondent asserts that the complainant had “accepted” the reduced working week. This is disputed by the complainant, who states that she raised her working time with the Line Manager. Albeit in connection with a voluntary redundancy scheme, the complainant pursued a grievance with the respondent. This culminated in the respondent writing to the complainant on the 26^th November 2015 where the Group HR representative recommended that the complainant “should be offered the first suitable 5 Day position that arises within her grade. In this manner [the complainant] will both increase her earnings and entitlements should voluntary redundancies arise in the future.” As of the date of the adjudication, this had not occurred. 

The complainant remains an employee of the respondent and continues to carry out her duties in ordinary course. The complainant’s working time became an issue of prominence when the respondent offered a voluntary redundancy package to staff in 2014. In its deliberations with the complainant, the respondent proposed to assess the complainant’s entitlement to a redundancy lump sum payment on the basis of a three-day week, as opposed to a five-day week. At this juncture, I note that the Line Manager had initially told the complainant that her entitlement would be assessed according to a five-day week, but this position later changed. Having made these comments, it is important to record that the complainant has not been made redundant and there is, of course, no claim made pursuant to the Redundancy Payments Act. Nevertheless, it is also important to recognise that central to this case is whether the complainant “accepted” her altered contractual terms in October 2011, namely the reduced working week, the loss of the company car and mobile phone. These are the issues raised in the complaints and require adjudication. I, of course, make no adjudication on any issue related to section 15(2B) of the Redundancy Payments Acts. 

The only contract provided to me in evidence is that dated the 2^nd November 2007 (the complainant was given a second contract in October 2011, but refused to sign it). It is clear from clause 3 of the 2007 contract that her normal working week consists of 40 hours; from clause 14 that she will be supplied with a company car and from clause 15 that she will be supplied with a mobile phone. On her return from maternity leave and a period of annual leave in August 2011, it was immediately put to the complainant that her working week would be reduced to three days and that she would no longer have access to a company car. The reduction in the working week was implemented following the meeting of the 23^rd October 2011. 

Having considered the oral and written evidence of the parties, I find that the complainant did not agree or accept the changes to her contract of employment implemented in 2011. It is clear that these alterations were made because of volatility or challenges faced by the respondent, in particular with regard to contracts with two large retailers. The respondent referred to writing to staff regarding alterations in working time and referred to others who had lost their access to a company car. In respect of the reduction in working time, it is fair to characterise the alteration as the complainant being put on short-time. 

I cannot accept the respondent’s submission that the complainant indicated her agreement or acceptance to the alterations to her contract of employment in respect of her hours of work. In reaching this finding, I note the respondent’s evidence that these alterations were made to other staff and it took the step of writing to staff to inform them of the issues faced by the respondent. I accept the complainant’s evidence that she raised her hours of work with her Line Manager and I note her actions in refusing to sign a contract of employment in 2011 for a three-day working week. I note the Line Manager’s initial acknowledgement that any redundancy entitlement would be assessed on the complainant doing a five-day week. If there had been any agreement by the complainant to do a three-day week, why would the Line Manager acknowledge his undertaking regarding a redundancy lump sum payment being assessed on the basis of a five-day week (as stated in the email of the 19^th September 2014). I also note that it was accepted by the respondent that the complainant worked additional days when they were available, and later sought to expand her role to take on the calls and days of a now retired colleague. I further note that the complainant pursued a formal grievance in 2014, which recommended that her five-day week be reinstated. While the complainant continued in her role following the alterations made in 2011, this cannot be said to have indicated her acceptance to the alterations of her contract of employment. I further note that the respondent’s evidence painted a picture of a business on the ropes from 2011 onwards, and this is relevant in assessing what the complainant did, or did not do, to seek the return of full-time hours, for example that she did not lodge a formal grievance prior to 2014. 

In respect of the issues raised at the adjudication, I note that it is clear from the complainant’s contract of employment that she is entitled to the use of a company car. I note that the stores she was assigned following her return from maternity leave in 2011 involved travel over many miles, over the territory of four local authorities. Even if the complainant was placed on short time, it is not clear why she was not provided with a company car, as per her contract of employment, for the days she worked for the respondent. Even if this was not practical in the long term, it was onerous for the respondent to immediately withdraw the complainant’s use of a company car, especially on her return from a period of maternity leave. The complainant states she had to take out a loan to buy a car in 2011 and suffered consequent financial loss. She, of course, had use of the private car in times outside of work and received mileage for the use of vehicle while attending to work duties. No particular issue was raised at the adjudication regarding the mobile phone, and nor was there evidence of financial loss incurred by the complainant. 

In respect of the individual complaints submitted by the complainant to the Workplace Relations Commission, I make the following findings. The respondent is correct that the claim made pursuant to the Maternity Protection Act is out of time. The complaint regarding the complainant’s return to work ought to have been raised within six months of the date of contravention, extendable to 12 months. That being said and for the sake of clarity, I have not considered this case from the perspective of the Employment Equality Acts and limitation periods provided in sections 77(5) and 77(6A) of those Acts. In respect of the claim made pursuant to the Terms of Employment (Information) Act, it is the case that the respondent proffered to the complainant a document at the time of the alterations made in 2011. The claim made pursuant to section 5(1)(a) cannot, therefore, succeed. It would be wrong, however, to maintain that compliance with this provision on the part of an employer provides a basis to unilaterally alter a contract of employment. It does not. The Act, and the underlying EU directive 91/533/EEC, impose obligations on an employer to provide a statement on the terms of employment and notification of any changes. They do not provide authority for an employer to unilaterally alter the terms of a contract of employment. 

In respect of the claim made pursuant to the Industrial Relations Act, it is clear that the complainant has been treated unfairly in aspects of her employment. As discussed at the adjudication, the respondent applied seniority in determining the entitlements of two longer-standing colleagues of the complainant, but the complainant’s significant seniority was not considered in allocating duties following the retirement of another long-standing colleague, for example the pharmacy calls. It is clear that the complainant suffered loss at not being able to move back to a five-day role in the period after 2011 and especially following the recommendation of the 26^th November 2015. I find that the complainant did not agree or accept that her working week be reduced from her contractual entitlement of five-days when she was placed on short-time in 2011. I also have regard to the loss of a company car immediately on the complainant’s return from maternity leave. 

Pursuant to the Industrial Relations complaint, I find that the respondent shall pay to the complainant the amount of €2,500 in respect of the unilateral alterations made in 2011 to the complainant’s contract of employment in respect of her access to a company car and a 40-hour working week and I find that the complainant did not agree or accept the reduction in her working week to a three-day week.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. 

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. 

CA-00005362-001

I find that the claim made pursuant to the Terms of Employment (Information) Act is not well-founded as the respondent supplied the complainant with a notification as required of section 5(1)(a) of the Act. 

CA-00005362-002

I make the following findings in respect of the claim made pursuant to the Industrial Relations Act:

• The respondent shall pay to the complainant the amount of €2,500 in respect of the unilateral alterations made in 2011 to the complainant’s contract of employment in respect of her access to a company car and a 40-hour working week;

I find that the complainant did not agree or accept the reduction in her working week to a three-day week. 

CA-00005362-003

I find that the claim made pursuant to Maternity Protection Act is out of time as it was made outside the limitation period provided in the Act. 

Dated:               31 May 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Terms of Employment (Information) Act

Unilateral alteration to a contract of employment

Short-time

Non-acceptance of reduced working time

Industrial Relations Act

Maternity Protection Act