TED1915

The Complainant commenced work for the Respondent in November 2008. He was appointed a Night Line Manager in May 2011. In February 2016, in circumstances that are disputed, the Complainant transferred from the Navan store to a Drogheda store and he transferred from night work to day work. The Complainant states that, contrary to Sections 3 and 5 of the Act, he did not receive a new contract at this time and that he was not notified of the fact that his salary was being reduced.
The AO decided that the complaint was not well founded and the Complainant appealed to the Court.

Complainant’s arguments
The Complainant has a contract from May 2011, which states his salary to be €44,100, (increased subsequently to €44,880 following a pay review). This contract makes to reference to a night premium payment element of the Complainant’s remuneration and this salary was reduced unilaterally.
The Complainant did not sign the alleged contract of 14 January 2014 that was produced by the Respondent at the WRC. This alleged contract and minutes allegedly signed by the Complainant at meetings in February 2016, that appear to show a wish on his part to transfer are false documents. These documents cannot be relied upon. The matter has been referred to the Gardai.

Respondent arguments

The Complainant requested a change from night shifts to day shifts for personal and health reasons at a meeting with his Store Manager on 2 February 2016 and he signed the minutes of that meeting. In a subsequent meeting in February 2016, the Complainant was advised of a daytime Line Manager vacancy in Drogheda, where he was living. He was advised that acceptance of this role may involve a lower salary. The Complainant acknowledged this and confirmed that he still wanted to move to day shift. Again, he signed the minutes of that meeting.

When he learned subsequently of the impact on his salary, the Complainant refused to sign a new daytime Line Manager contract.

Clause 2 of the contract signed by the Complainant in January 2014 set out clearly that his salary included a premium of one-third of salary for working nights and that in the event of a transfer to day work, this premium would cease to apply.

No changes were made to the Complainant’s conditions. He received the pay rate applicable to his position, as per his contract of January 2014.

Witness evidence

Mr. David Madden

Mr. Madden gave evidence that he is a Forensic Examiner with a Certificate in hand-writing, who had given 80 witness reports in proceedings.

The witness stated that he had examined the alleged contract of January 2014 and the minutes of the two alleged meetings in February 2016. In his view, it was ‘strongly probable’ that the signatures that were purported to be those of the Complainant on those documents were not those of the Complainant. He stated that, in his view, there were differences between those signatures and the signature of the Complainant on other documents. The witness stated also that, in his opinion, it was strongly probable that the three signatures concerned had been applied at one sitting, though he accepted under questioning that this opinion was not included in his report supplied to the Court.

Under cross examination, the witness stated that he secured his qualifications through distance learning.

The witness stated that his was a qualified report as he examined copies rather than original documents.

The witness accepted that he was engaged to give evidence on behalf of one party to the proceedings but stressed that he was a witness for the Court and that he would always offer his professional opinion. It was his professional opinion that it was ‘strongly probable’ that the signatures concerned were not those of the Complainant but he accepted that he could not state definitively that this was the case.

Mr. Dawid Bialowas

Mr. Bialowas gave evidence of his career with the Respondent, as set out above.

The witness stated that the only contract that he had signed was that of May 2011. This contract made no reference to any element of his pay being dependent on night work. He denied that he had signed another revised contract in January 2014. He denied that he had signed minutes of meetings in February 2016 that indicated a wish on his part to move to days.

The witness drew attention to the fact that he started work in the Drogheda store on 23 February 2016, the date shown in the minutes of one of the alleged meetings with his Store Manager in Navan.

The witness stated that there was no reason why he would have signed a contract ‘out of the blue’ in January 2014.

Under cross examination regarding the contract of May 2011, the Complainant confirmed that he had signed it, even though the Respondent had no copy of it and had doubts as to its authenticity. With regard to the fact that there were two copies of this document before the Court, the witness stated a belief as to the identities the two people who had signed for the Respondent. When it was put to him on behalf of the Respondent that the two people concerned had not done so, the witness stated that it was some time ago and he could not be certain but he believed that it had been the two people concerned.

The witness acknowledged that he knew that the Respondent paid extra to night workers. However, he referred to his contract and stated that he knew that contractual arrangements varied in the Respondent company.

The witness offered the view that he had been moved to day work to avoid paying him redundancy or compensation when the night shift was closed down, which happened in 2018.

The witness acknowledged that the possibility of a move back to Navan had been mooted to him but stated that he had made adjustments in his family life that rendered such a return to be very difficult.

The witness confirmed that he was not aware of any other staff member in the Respondent company who worked days and received a night premium. However, he stressed that his contract had been changed without notification.

The witness confirmed that the failure to offer redundancy or compensation to him formed part of his grievance.

When it was put to him that the Court had ruled against a colleague of his in the Navan store in an earlier determination in similar circumstances,Tesco Ireland and David Coleman PW/18/66,the witness stated that he was not aware of the case.

Ms. Louise Kelly

Ms. Kelly gave evidence that she is an Employee Relations Partner with the Respondent.

The witness stated that all contracts are issued from Head Office to the Regional teams who complete the individual details. She explained that there is a template contract for Night Line Managers and that this cannot be altered by Store Managers. This template makes provision for a night premium payment of one-third of pay and all management contracts contain a mobility clause.

The witness explained that, in 2014, a review was undertaken of night shift arrangements across the country. As a result, some stores ceased these arrangements in early 2015. Staff covered by collective agreements were compensated. Management were offered redundancy or redeployment. No Night Manager who was moved to day work continued to receive the night premium. At the time the Navan store was unaffected. The night shift was abolished there in 2018.

Under cross examination and questions from the Court, the witness stated that she believed that the document produced to the Court purporting to be a contract with the Complainant from 2011 was, in fact, the contract of a Day Line Manager.

When it was put to the witness that this case differed from theColemancase, as the Complainant in the instant case is not covered by collective agreements and his agreement is required before his contract can be varied, the witness drew attention to the fact that the Determination in that previous case rejected the Worker’s appeal on the basis of the ‘normal arrangements applicable in the company’, which was equally relevant in the instant case.

The witness stated that she would not expect there to be formal correspondence in cases such as the instant case as there was an informality in the engagement between Store Managers and Regional Managers in such cases.

Ms. Geraldine Murray

Ms. Murray gave evidence that, while working as a Personnel Officer, in 2014 she had conducted file audits. As a result, she had identified gaps in various personnel files such as the absence of contracts. While she could not recall the Complainant’s situation specifically, the fact that she had counter-signed the 2014 disputed contract indicated to her that she must have identified the absence of a valid employment contract on the Complainant’s file and that she must have asked him to sign a new contract. She confirmed that her signature was on the 2014 contract. She totally refuted any suggestion that she would have ever forged a signature.

The witness explained that although the signed contract referred back to the date of the Complainant’s engagement as a manager, she would have included his then current pay rate.

The witness stated that she always followed the same procedure with colleagues in respect of such matters and that she would always check that they were happy to sign and, if not, that she would discuss any issues.

The witness stated that all contracts for Night Line Managers contained specific reference to the premium payment of one-third for night work and that this could not be changed.

Under cross examination and questions from the Court, the witness stated that she had never given a colleague the wrong contract to sign.

The witness said that, as part of the 2014 audit, she had looked at all Managers’ personnel files in her area and that some others had gaps and anomalies that required correcting.

The witness confirmed that the Complainant could not have had the original of any 2011 contract as these were kept on file and a copy was given to the employee. She said also that if she had come across a Day Line Manager contract on the file of a Night Line Manager, she would have sat down with the colleague and sought to correct this by getting them to sign the correct contract, in which case she would leave the other contract on the file.

Mr. Gavin Doyle

Mr. Doyle gave evidence that he was the Complainant’s Store Manager when, after Christmas 2015, it was brought to his attention by Ms. Breda Bergin, Personnel Manager, that the Complainant was seeking to work days. To give the Complainant time to deal with his difficulties, he was given 2 weeks’ work on days in January 2016, following which Ms. Bergin confirmed the Complainant’s wish to move totally to days for both health and personal reasons.

The witness said that he believed that he was conveying good news to the Complainant some weeks later when he was able to inform him of a vacancy in a Drogheda store, a short distance from his home. He said that the Complainant was ready to move immediately and the transfer was arranged to take place within days. He said that he would not normally have agreed such a transfer as he had no ready replacement and, pending securing a replacement, he had to cover the night shift with Day Managers. However, the Complainant was keen to transfer.

The witness denied that he had conspired to take false meeting notes.

When asked, the witness stated that all night workers in the company receive a premium payment of one-third and that he had indicated to the Complainant that, as a consequence of moving to day work, he could suffer a drop in income, without giving details.

Under cross examination and questions from the Court, the witness acknowledged that it was rare for a Store Manager to get involved in such a transfer, unless there was a significant issue but he said that Ms. Bergin had enlisted his assistance in this case.

The witness stated that he was certain that he had been at a meeting with the Complainant and Ms. Bergin on 2 February 2016 as recorded in minutes taken by Ms. Bergin. He accepted that there was no reference to a pay reduction in those minutes.

The witness could not account for the fact that minutes of a purported meeting on 23 February 2016, at which the same three people were said to be present, could not be correct as the Complainant had moved to Drogheda on that date. He stated that the minutes were taken by Ms. Bergin. He believed that those minutes were signed by the Complainant and Ms. Bergin on the day of the meeting.

The witness confirmed that he had dealt with other requests for staff to leave night work and that all had understood that they would lose the one-third pay premium as a result.

Ms. Breda Bergin

Ms. Bergin gave evidence that she was Personnel Manager in the Navan store when in late 2015 or early 2016, she used to meet the Complainant on mornings when she went to work and the Complainant was finishing his shifts. The Complainant had been in a motor accident and was finding the night work to be physically difficult. Also, he had personal issues that were creating difficulties for him. He was keen to move to day work. The store had no vacancy for a Day Line Manager but she spoke to Mr. Doyle to see if something could be done for the Complainant. Following this, Mr. Doyle and herself met the Complainant. She took notes at the meeting on a relatively informal basis. From what she could recall, the witness said that she gave the notes to the Complainant to sign and she signed them also.

The witness stated that she was shocked and upset at any suggestion that she would have faked the Complainant’s signature. She described such a suggestion as ‘ridiculous’ and noted that such actions could be of no benefit to her. She stated that it was disheartening to face such suggestions when she had been there to support the Complainant.

The witness said that after the Complainant had been on days for two weeks, he said that he enjoyed it and it gave him more time with his daughter.

The witness accepted that the minutes shown dated 23 February 2016 were mistaken regarding the date shown and she stated that this was her mistake, most likely caused by the fact that it was agreed at the meeting that the Complainant would transfer to Drogheda on that date. She was ‘100%’ certain that the meeting occurred before the Complainant moved to Drogheda as there was no other way he could have moved.

She stated that the Complainant would have been aware that his pay included a premium for night work as he had staff working to him who had moved, including Mr. Coleman, to whose case reference had been made in these proceedings, and because all managers were aware of this fact.

She noted that the store had been willing to facilitate the Complainant with a return to his previous role.

Under cross examination and questioning by the Court, the witness acknowledged that a reference in the minutes of the second meeting to the location of the Drogheda store being ’20 minutes’ from the Complainant’s home was incorrect as he lived much nearer.

The witness acknowledged that the fact that the Complainant’s original contract from 2008 and his later contract as a manager from 2011 were missing from his file was most unusual. She stated that she had first seen the 2011 contract when it was produced at adjudication.

The witness stated that there was no need to refer the Complainant for medical attention when he voiced concerns about his health as he continued to attend for work.

The witness said that she told the Complainant that he would lose income by transferring to day work and told him that he had to make the choice between his income and his family as he was well aware of the standard pay practice.

The Law

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(a)

(b)

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f)

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g)

(ga) that the employee may, undersection 23of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee ’ s average hourly rate of pay for any pay reference period as provided in that section, ]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

[ (1A) Without prejudice tosubsection (1), an employer shall, not later than 5 days after the commencement of an employee ’ s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee ’ s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of theCompanies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee ’ s remuneration and the pay reference period for the purposes of theNational Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work —

(i) per normal working day, and

(ii) per normal working week. ]

(1B) Where a statement undersubsection (1A)contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith. ]

[ (2) Each statement referred to insubsection (1)and(1A)shall be given to an employee notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified inparagraph (d)ofsubsection (1A)orparagraphs(h), (i), (j), (k)and(l)of the saidsubsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer undersubsection (1)or(1A)shall be signed and dated by or on behalf of the employer.

(5) A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to insubsection (1)or(1A) )as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other thansubsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

Notification of changes.

5. - (1) Subject tosubsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer undersection 3,4or6,

the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2)Subsection (1)does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given undersection 3or4.

Deliberation

This case turns on the question of whether or not a change occurred in the conditions of employment of the Complainant when he transferred from night work in Navan to day work in Drogheda.

The instant case has to be viewed in tandem with the case heard by the Court on the same facts under the Payment of Wages Act, (PW/17/27). In that case, the Court found that the Complainant’s terms of employment did not change as a consequence of his work transfer. It follows, therefore, that there was no requirement for a new contract nor was the Respondent required to issue a statement under s.5 of the Act.

Determination

The Court upholds the decision of the Adjudication Officer.

Signed on behalf of the Labour Court



Tom Geraghty
FMc______________________
22nd July 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.