Complainant

Respondent

Anonymised Parties

A warehouse operator

A Supermarket Chain

Representatives

Larkin Tynan Nohilly Solicitors

 Fieldfisher LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033915-001

21/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033915-002

21/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033915-004

21/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033915-005

21/01/2020

The Complainant, Mr Kriscuns, works as a warehouse operator for LIDL.  He alleges that, following submission of a grievance under the Terms of Employment (Information) Act 1994 he was penalised by the respondent by way of a disciplinary case being taken against him.  He also alleges changes were made to his terms and conditions without his agreement.

The complainant has been employed by the respondent as a Warehouse Operative since in or around the 10th of August 2009 (12 years) with an unblemished record.

CA-00033915-001  Payment of Wages

The Claimant was on sick leave from the 25th of June 2019 to the 5th of July 2019 and was not paid his sick leave contrary to his Contract of Employment

CA-00033915-002,CA-00033915-005 Terms of Employment (Information) Act, 1994

Under the Complainant’s Contract of Employment he is entitled to be paid sick leave and such was always the custom and practice. The respondent introduced a further policy without the complainant’s consent which amounts to an amendment to his contractual Terms of Employment.

The respondent furnished the Complainant with a Sick Leave Absence Form which allegedly should contain his signature.  However, it was not the complainant’s signature and he did not authorise any person to sign same on his behalf.

CA-00033915-004 Terms of Employment (Information) Act, 1994 - Penalisation

On the 26th of July 2019 the complainant lodged a Grievance Complaint in respect of the change in relation to sickness pay and other issues. The change in sick pay was a change of the complainant’s terms  of employment without his agreement. Following lodging this Grievance Complaint a disciplinary process was instigated against the complainant alleging under-performance of duties. This was penalisation.

The Complainant alleges that he is owed the sum of €695 in respect of sick pay. The Complainant's Contract of Employment is clear. Clause 9 states that sick pay is at the absolute discretion of the company. This is the contract that the Complainant has signed up to.  Notwithstanding the fact that he is not owed any amount, in the interests of harmonious working relations and as a gesture of goodwill, the amount he says is owing has in fact been paid to him and he is at absolutely no loss in that regard. 

The Complainant alleges that he has received a statement of his core terms which deliberately contain false or misleading information. This claim is denied. The Complainant is not entitled to sick pay. As per his Contract of Employment, sick pay is paid at the Company's discretion. The Complainant's Contract of Employment has not been amended. The sick pay policy has not changed

The Complainant alleges that an absence form was signed on his behalf without his authorisation. The form in question is an internal form for payroll purposes and is not required to be countersigned by the relevant employee. At the time the form was submitted to the payroll department, the Complainant was absent on sick leave.

The Complainant alleges that he was subjected to a disciplinary process in response to him having raised a grievance. That is denied. The Complainant instigated a grievance in relation to certain matters, as he was entitled to do. That grievance was investigated in accordance with the company's well-defined procedures. The outcome was not to the Complainant's liking. He was afforded the opportunity to appeal that outcome to a member of management who was not involved in the original process. Despite submitting his appeal five weeks after the deadline to do so had expired and despite failing to attend two scheduled appeal hearings, the Complainant was afforded a further opportunity to ventilate his grievance. The appeal panel carefully considered but did not uphold the substance of his complaints.

Separately, the Complainant was investigated for consistently poor performance over a defined period of time. The Complainant was one of the poorest performers in the warehouse and he was one of a number whose performance was reviewed around this time. Having undertaken an investigation in accordance with the company's well-defined procedures, it was determined that the Complainant had a case to answer and he was invited to a disciplinary hearing. He was provided with all of the material to be considered in advance of the hearing. He was advised of his entitlement to be accompanied by a colleague and assisted by a translator, if he desired. He was advised that disciplinary action could follow up to and including dismissal.

The outcome of the disciplinary process was that the Complainant received a verbal warning. This is the lowest form of sanction that was available to the decision maker. As he was entitled to do, the Complainant appealed this outcome. Notwithstanding the fact that his appeal was out of time, he was afforded the benefit of an appeal hearing with an independent member of management. The points that he made were considered and that manager concluded that the original sanction was warranted in circumstances where the Complainant had failed to engage with his line manager and had refused to accept that his line manager was entitled to set performance targets for him and other operatives. There is absolutely no connection between the submission by the Complainant of his grievance and the investigation of the Complainant's consistently poor performance. The Complainant was one of a number of operatives investigated around this time. There is no causal connection between the grievance and the investigation. Had the respondent sought to penalise the Complainant, it would not have allowed him to progress his grievance appeal over five weeks late and it would not have imposed the lowest form of sanction following the disciplinary process.

Like other statutory provisions aimed at preventing penalisation, the Complainant is required to demonstrate a causal link between (i) the invocation by him of a protected right and (ii) an act of penalisation. In this case, there is no such causal link and there was no penalisation. The Complainant exercised his legal right to invoke the grievance procedure. He had the benefit of an investigation and hearing into his grievance. He was afforded an appeal of the outcome to an independent manager. The subsequent investigation and disciplinary process into the Complainant's performance arose in circumstances where the Complainant was demonstrably one of the poorest performers in the warehouse. He was only one of a number of staff who were also investigated at this time. The sanction that was imposed at the conclusion of that process was a verbal warning which is the lowest form of sanction available. 

CA-00033915-001 Payment of Wages

This complaint was withdrawn at the Hearing

CA-00033915-002,CA-00033915-005 Terms of Employment (Information) Act, 1994

The first question for me to look at is whether or not the terms of employment changed without the complainant’s agreement.  There is an express term in the complainant’s contract which states;

9.4.  Provided that the requirements set out below are met, the Company may at its absolute discretion continue to pay you at your normal  rate of pay (Company Sick Pay) during any unavoidable absence through sickness or injury as follows……

The complainant has sought to argue that it was custom and practice for the respondent to pay sick pay on all occasions and not to do so was a change in his terms of employment without his agreement.  If it was the custom and practice then this could be considered an implied term in the complainant’s contract and, in the absence of an express term to the contrary, might be considered part of his terms of employment.  However, there is an express term in his contract covering sick pay, which allows for the possibility that sick pay might not be granted by the employer, and this was not altered and must take precedence. His terms of employment therefore were not altered. This complaint therefore is not well-founded.

The second issue relates to the signature of another employee on an administrative document relating to sick leave.  I note that in the grievance submitted by the complainant to the respondent the issue of the signature on the form relating to absence was described as ‘who sent false information about me to payroll’.  It is clear from the response given from the respondent to the grievance at that time that the information supplied was correct ie. Relating to the total number of sick days taken.  The form was signed by the supervisor and  ‘ PPd’  by the supervisor for the complainant. It did not purport to be the signature of the complainant.  The signature of supervisor was a recommendation by him that the sick leave would be unpaid due to the amount of sick leave taken by the complainant.  In particular I note the evidence of the employer that ‘ The form in question is an internal form for payroll purposes and is not required to be countersigned by the relevant employee. At the time the form was submitted to the payroll department, the Complainant was absent on sick leave’. I do not see this as a breach of the complainant’s rights under the Act and therefore this complaint is not well-founded.

CA-00033915-004 Terms of Employment (Information) Act, 1994 - Penalisation

Section 6(c) of the Terms of Employment (Information) Act, 1994 prohibits penalisation and states;

6C. (1) An employer shall not penalise or threaten penalisation of an employee for—

 (a) invoking any right conferred on him or her by this Act,

Penalisation is defined in the Act and includes in Section 6(c) 5 (d)

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty)

In O’Neill v Toni and Blackrock, Ltd (2010)  ERL 21 the Court found in relation to the question of penalisation as follows:

It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggested that, where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent. The act is silent on the question of how the burden of proof should be allocated as between the parties. This question was considered by this Court in Department of Justice Equality and Law Reform v Kirwan (Determination HSD082 (June 1), 2007). Here the Court held as follows:

“It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true”

The complainant therefore must show that ‘but for’ the fact that he sought to assert his rights under the Terms of Employment Information Act 1994 he would not have been subjected to a disciplinary hearing which is the penalisation claimed.  It is clear from the evidence given that the respondent had concerns about the performance of the complainant, and other employees, and that this is what motivated the investigation under the disciplinary procedure.  I am satisfied that this was the primary motivation of the respondent in instigating the disciplinary procedures.  I therefore conclude that the complainant has not established a case of penalisation and that the complaint is not well-founded.

Claim CA-00033915-002 under Terms of Employment (Information) Act, 1994 is not well founded.

Claim CA-00033915-004 under Terms of Employment (Information) Act, 1994 is not well founded.

Claim CA-00033915-005  under Terms of Employment (Information) Act, 1994 is not well founded.

Claim CA-00033915-001 under the Payment of Wages Act, 1991 was withdrawn

Terms of Employment (Information) Act, change of terms, penalisation