Complainant

Respondent

Parties

Yvonne Devlin

Woodies DIY Limited

Representatives

Self-represented

Fergus Dwyer, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00045928-001

02/09/2021

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

CA-00048123-001

12/01/2022

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

CA-00048123-002

12/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00048123-003

12/01/2022

The complainant commenced working for the respondent on March 25th 2011.  From December 2018, she worked in the Tallaght store as an administrator in the online store, the “E-Store,” working 39 hours a week.  In 2020, she earned €23,700.  In February 2021, she was informed that the E-Store was relocating to Drogheda and she was given an option of working in Drogheda or taking a job as a sales assistant in the Tallaght store.  The job in the E-Store was a Monday to Friday role, whereas the sales assistant job was rostered for 78 hours over a fortnight, comprising days, one late evening a week and every second weekend.  In March 2021, when the complainant submitted a grievance about the roster, the respondent decided to phase in the evenings and weekends over a period of 12 months.  The complainant refused to accept the phasing proposal and on June 3rd, she refused to work the 12.00pm – 9.00pm shift.  The disciplinary procedure was invoked and, despite repeated warnings, at a disciplinary meeting on July 13th, the complainant told the Head of HR that she would not work the evening shift.  On July 30th 2021, she was dismissed for gross misconduct.  She claims that her dismissal was unfair. 

The complainant has also submitted a complaint under the Payment of Wages Act 1991.  She claims that she should not have had a deduction in her wages when she was suspended as part of the disciplinary proceedings.  In contravention of the Terms of Employment (Information) Act 1994, she claims that she was not notified in writing of a change in her terms and conditions of employment.  Finally, she claims that she is entitled to a redundancy payment.

In a submission provided in advance of the hearing, Mr Dwyer set out the background to the complainant’s dismissal.  He said that, since she commenced employment with the respondent in March 2011, she worked as a store colleague, a stock administration specialist and, from December 2018, as a colleague on the E-Store team.  The complainant was always based in the Woodies store in Tallaght.

In February 2021, when she was informed that the E-Store was being re-located to Drogheda, the complainant was given the option of working Monday to Friday in Drogheda or working the standard roster for sales assistants in Tallaght.  The requirement to work this roster was set out in the complainant’s contract of employment:

All full-time colleagues must work five days in seven, including late nights, Saturday and Sunday every second week.  When working Saturday and Sunday, your two days off will be arranged by your Manager.  The days you work and the start and finish times will be confirmed by your Manager.

When the E-Store moved to Drogheda, the complainant didn’t want to re-locate and she was assigned to a role as a sales assistant in the Tallaght store.  Her return to the flexible roster was phased in over three months, but she refused to work the roster.  On March 15th 2021, she submitted a grievance in which she complained about the change to her hours of work, the short notice of the change to her job and a claim to be made redundant.  A meeting to hear the grievance was held on March 25th 2021.  While her complaints were not upheld, on April 2nd, she was offered the option of a transition period of 12 months to return to flexible working hours or, she was offered the opportunity to be considered for a job in the Accounts Payable Office, based in Tallaght, working Monday to Friday on an annual salary of €27,000.  On April 7th, the complainant informed Keith Byrne, the manager who heard her grievance, that she wasn’t interested in the Accounts Payable job and she said that a complaint to the WRC “is the way I have to go to resolve this.”

In early June, the complainant refused to work the evening shift and a disciplinary investigation commenced.  At the same time, she was informed by the HR manager that there were four administrative jobs available and that the working hours would be suitable for her.

In the following weeks, the complainant refused to work one evening shift a week and disciplinary action was initiated on four occasions.  On June 21st, she received a written warning, on July 2nd, she received a final written warning and on July 15th, she was suspended without pay for three days.  Following a disciplinary hearing on July 26th, she was dismissed on July 30th 2021.  The decision-maker was the head of HR, Mr David Nally.  Concluding his letter in which he outlined the reason for his decision to dismiss the complainant, Mr Nally stated:

In the hearing, you provided no indication to me that you were willing to engage in any meaningful discussion to resolve the on-going dispute you have with the Company in regards to working hours. You also failed to put forward any other alternative options for me to consider as part of my disciplinary outcome, other than the three options which I outlined to you. These were:

1) To issue another Final Written warning

2) To sanction a transfer to another Woodie’s store

3) To terminate your employment with Woodie’s

As you indicated your intent to continue to refuse to adhere to your rostered hours, it is with great disappointment that the Company now finds itself in a position where, based on your actions and responses, the only sanction left available for consideration within our Disciplinary Policy is to terminate your employment with Woodie’s. Therefore, it is my decision to summarily dismiss you, without payment in lieu of notice, in accordance with the Company procedures. This summary dismissal is effective from 30th July 2021.

Although she was advised of her right to appeal against the decision to terminate her employment, the complainant did not appeal.

The Respondent’s Case that the Dismissal of the Complainant is not Unfair

It is the respondent’s case that the complainant’s failure to come to work when she was rostered was gross misconduct and that, based on her persistent refusal to comply with the instructions of management, it was reasonable to apply the sanction of dismissal.

Arguing that the respondent’s actions were those of a reasonable employer, Mr Dwyer referred to the seminal precedent of Looney & Company v Looney, UD 843/1984.  He argued that “a reasonable employer in the same position and circumstances” as the respondent would have reached the same conclusion.

Mr Dwyer submitted that the complainant destroyed her employer’s trust and confidence, a position upheld by the former Employment Appeals Tribunal (EAT), specifically in the decision in Maria Moore v Knox Hotel and Resort Limited, UD 27/2004, where the Tribunal concluded that the complainant’s actions destroyed the respondent’s trust and confidence and “rendered the continuation of the employment relationship impossible, thereby justifying her dismissal.”

Referring to the procedures followed by the respondent in reaching the decision to dismiss the complainant, Mr Dwyer referred to the WRC Code of Practice on Grievance and Disciplinary Procedures (Statutory Instrument 146 of 2000).  Mr Dwyer submitted that the respondent’s actions were entirely in compliance with this Code, from the perspective of the right to be informed of the allegations against her, the right to representation, the right to a fair hearing, the right to respond to the allegations and the right of appeal.

It is the respondent’s case that the complainant contributed wholly to her dismissal and that she is not entitled to redress under the Unfair Dismissals Act.  In support of this contention, Mr Dwyer referred to the EAT case of Murray v Meath County Council, UD 43/1978, where no award was made to the complainant because of what were considered to be her “inappropriate actions.”    

Evidence of the Store Manager, Mr Gary Nolan

Mr Nolan said that the store in Tallaght is open from 9.00am until 9.00pm from Monday to Friday and is also open on Saturdays and Sundays.  He said that the company needs to fill shifts and that it requires full flexibility from staff.  He said that sales staff are required to work on evenings and at weekends and that if one person refuses to be available outside the standard Monday to Friday, 9.00am to 5.00pm shift, this sets a precedent for others and makes it difficult to roster for all the shifts.  Mr Nolan said that the jobs in warehousing, stock administration and accounts are built around delivery times and that these are mainly Monday to Friday jobs.

Cross-examining of Mr Nolan

Opening her cross-examination, the complainant said that she told Mr Nolan that she couldn’t work at weekends.  She said that her team leader in the gardening section was prepared to allow her to work Monday to Friday.  Mr Nolan said that the team leader is not involved in rostering and that he may not be aware of the need for balance of weekends and evenings among all the sales assistants. 

Evidence of the Human Resources Advisor, Mr Keith Byrne

Mr Byrne said that on March 25th 2021, he had a meeting with the complainant to investigate her grievance.  He said that he dealt with three issues: hours of work, the short notice of the change of role and the complainant’s application for redundancy.  On April 2nd, he issued a letter confirming the outcome of his investigation.  He referred to the options he presented to the complainant as a way of resolving her grievance:

Firstly, while it was not possible for the company to facilitate the complainant’s request to work Monday to Friday with no late evenings, Mr Byrne proposed a phasing in of the standard roster over 12 months.  He proposed that three months from May 9th 2021, she would start working one late shift per week.  Three months later, in addition to one late shift per week, she would work one day at the weekend every four weeks.  Three months later, she was to work one weekend in every four weeks, plus one late shift a week.  Finally, three months later, and 12 months after May 9th 2021, she would work every second weekend, plus one late shift per week.

Alternatively, Mr Byrne proposed that the complainant could apply for a job as an accounts payable administrator, and, that if she expressed an interest in the role, it would not be advertised, but she could be interviewed informally by the hiring manager.  The salary for the job was €27,000, an increase on €23,700 which she earned in 2020.

On April 7th, Mr Byrne said the complainant sent him an email in which she said that she declined the options he presented.  Mr Byrne referred to the letter which was included in the respondent’s book of papers.  The complainant wrote, “I will not be changing my hours of work.  Also I feel Woodies have not helped in any way to resolve the issues I brought that led to our grievance meeting.”

Cross-examining of Mr Byrne

The complainant reminded Mr Byrne that she asked for a named colleague to accompany her at the grievance meeting.  That employee couldn’t attend. 

After being back on the shop floor for two months, the complainant said that she was offered the job as an accounts payable assistant.  At that stage, she said that she was happy in the gardening section.  She asked Mr Byrne why he didn’t offer her the accounts payable job in February instead of two months later.  She said that she got the offer of the job on the morning of her father’s funeral.

Mr Byrne replied that the job came up in the Accounts Payable Department.  He said that it was a good match for the job that the complainant had been doing in the E-Store.  He said that he thought it was a fair offer and he asked the hiring manager to hold the job for a week, so that the complainant could consider if she wanted to apply.

The complainant said that the job was also offered to one of her colleagues; however, Mr Byrne said that there were two vacancies.

Evidence of the Head of Human Resources, Mr David Nally

Mr Nally provided some background to the development of the respondent’s online business.  He said that the company started selling online in 2014, and that they did all the work associated with online sales from a small office in the Tallaght store.  He said that the restrictions in society because of Covid-19 fast-tracked their 10-year plan for the online business.  During the pandemic, they were dealing with thousands of queries every day.  Mr Nally said that the company set up six online hubs in stores around the country, one of which was in the Tallaght store.  He said that it was difficult to maintain the accuracy of stock information in each of the stores and that there was “massive customer frustration.”  At times, Mr Nally said that HR staff had to work the phone lines.  Something had to be done to protect the company’s brand and in January 2021, they set up the Drogheda online centre.   

Mr Nally described the conversation he had with the complainant on February 1st 2021 when she was informed that the E-Store was re-locating.  The two managers in the E-Store in Tallaght transferred to other stores.  The complainant was offered the option of transferring to Drogheda or remaining in Tallaght as a sales colleague, with full flexibility regarding rostering.  She opted to return to working on the shop floor and she was assigned to the gardening section.  Arising out of her grievance, as she did not indicate if she wished to apply for a Monday to Friday job in Accounts Payable, she was rostered for one shift a week from 12.00pm to 9.00pm.

On Thursday, June 3rd 2021, the complainant refused to work the late shift and she was invited to a disciplinary meeting.  The meeting was held on June 8th, but, before the outcome was decided, the complainant again refused to work her rostered shift.  Mr Nally said that he wrote to the complainant on June 11th, “holding out an olive branch,” and he said that no disciplinary action would be taken regarding the latest incident.  However, Mr Nally said that he advised the complainant that a further refusal to work a late shift would result in suspension pending disciplinary action.

The complainant did not work her rostered shifts and on July 2nd, she was issued with a final written warning.  At 5.00pm, on Thursday, July 8th, although she was rostered to work until 9.00pm, the complainant informed the store manager, Keith Byrne, that she was leaving at 5.00pm.  On July 15th, she was suspended without pay for three days.  On July 22nd, the complainant again refused to work the evening shift and she was suspended with pay, pending an investigation.  She attended a disciplinary hearing on July 26th.  Mr Nally recalled that, at the meeting, he told the complainant that if she would agree to work her rostered hours, he had the option of transferring her to another store and issuing another final written warning.  The second option was dismissal.  The notes of the meeting submitted in evidence show that the complainant said, “I can’t do the first one” and that “dismissal is up to you guys.”  Mr Nally said that the complainant “had no willingness to engage.”  On July 30th, he issued a letter confirming that she was dismissed for gross misconduct.

Cross-examining of Mr Nally

The complainant asked Mr Nally about the timing of the decision to cease doing the online business in the Tallaght store.  Mr Nally said that the decision was made by the leadership team on January 17th 2021.

The complainant said that she was in work in Tallaght on February 1st and that she got a new high viz  vest that had “E-Store” on the back.  At lunchtime, she was told that the E-Store was moving to Drogheda.  She said “I told you I couldn’t change my hours.”

Mr Nally responded that a named manager briefed the staff at the end of the week.  The complainant replied, “we should have been given a like for like job.”

On the complaint form she submitted to the WRC, the complainant said that she worked for Woodies for 10 years and that she was an online administrator when, on February 1st 2021, she was informed that the online store was moving to Drogheda.  She said that she was told that her role would cease on February 5th.  She was given the option to move to Drogheda or to remain in Tallaght as a sales assistant.  She said that the only choice she felt she had was to remain in Tallaght.  The complainant has been working a Monday to Friday day shift since 2018 and she said that she couldn’t change her working hours because she has commitments outside work.

From the end of April 2021, the complainant said that she refused to work the evening shift and she had to attend several zoom meetings which were chaired by other store managers which was very stressful.  When she refused to change her hours, she was suspended.  She said that, at times, she felt bullied.  She ended up being dismissed for gross misconduct, which she was informed about by email.

The complainant said that after 10 years of loyal service and working through the Covid-19 pandemic while most of the Woodies colleagues “stayed safe at home on full pay, it is very hurtful to be treated this way.”

Evidence of the Complainant

The complainant said that, of the 10 years that she worked for the respondent, she worked Monday to Friday for seven years.  During the lock-down, she said that she was very busy.  When the respondent opened an E-Store in Drogheda, she asked if her job was safe.  On February 1st, she was that she was told that the E-Store was moving entirely to Drogheda.  She said that she was offered her job in Drogheda or to remain in Tallaght.  She said, “if my hours had been left alone, I’d still be there.”  She had been employee of the month, and then she got dismissed because of her hours.  She said that her team leaders in the gardening section were happy with her work, but that the store manager wouldn’t agree to her request to work Monday to Friday, days only.

Cross-examining of the Complainant

Responding to a question from Mr Dwyer, the complainant said that, at the meeting on February 1st, when she was told that the E-Store was moving, she told the managers that she should be given a job on a like for like basis.

Mr Dwyer asked the complainant about the opportunities to apply for an administration job.  She replied, “two months after I was back on the floor, I was happy in the garden centre.  I felt that I should have been offered the Accounts Payable job before I went back on the floor.”

During the investigation into her grievance, Mr Dwyer said that again, the complainant was offered a job in administration.  The complainant replied again that she was happy “on the floor.”  After seven years, she said that she felt that she was entitled to a Monday to Friday job.

Mr Dwyer referred to the complainant’s contract which provides that sales staff must work a flexible shift.  She replied, “I complied verbally with my contract.”

Mr Dwyer suggested that the respondent “went above and beyond” to reach an agreement with the complainant and that the company tried to facilitate her need to work only weekdays.  The complainant said, “I agree, but I went above and beyond for Woodies.”

Following her dismissal, the complainant said that she applied for administration work.  Mr Dwyer said that the respondent offered her an administration job, but the complainant said that the offer was made two months after she returned to work on the shop floor.  Mr Dwyer pointed out that Mr Byrne offered the complainant a job in Accounts Payable on April 2nd.  The complainant replied that she was going to the WRC.

Mr Dwyer suggested to the complainant that she had an opportunity to get the hours that she wanted.  She replied that “two months down the road is too late.”  He asked her why she didn’t take the administration job.  The complainant said that she felt disheartened and that she had no intention of leaving.

At the end of her cross-examining, I asked the complainant why she didn’t take the option of the job that she was offered in the Accounts Payable Department.  She said, “I wanted to be left to do what I was doing.”  When I asked her why she didn’t appeal against her dismissal, she said, “I haven’t got an answer.”

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) provides that:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4)(b) of the Act provides that,

…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case.  The letter issued to the complainant on July 30th 2021 confirms the reason for her dismissal:

As you indicated your intent to continue to refuse to adhere to your rostered hours, it is with great disappointment that the Company finds itself in a position where, based on your actions and responses, the only sanction left available for consideration within our Disciplinary Policy is to terminate your employment with Woodies.  Therefore, it is my decision to dismiss you, without payment of notice, in accordance with the Company procedures.

The complainant’s contract provided that she was required to work five days in seven, including late nights and Saturday and Sunday every second week.  The issue for me to consider is if, having worked a Monday to Friday day shift for a number of years, was it reasonable to dismiss her when she refused to work the flexible roster?

Was it Reasonable to Dismiss the Complainant?

There are many precedents where the issue of the reasonableness of an employer’s decision to dismiss an employee are examined.  Mr Dwyer referred to the decision of the EAT in the case of Looney & Co v Looney and, and the test of whether “a reasonable employer in the same position and circumstances” as the respondent would have reached the same conclusion.

It is apparent to me that the respondent would have preferred the complainant to remain working with them.  After 10 years of service, they considered her to be a valued employee and it is my view that the managers made every possible effort to help her to adjust following the re-location of the E-Store.  The complainant herself agreed that the managers “went above and beyond” to encourage her to stay.

The E-Store closed on February 5th 2021 and on April 2nd, having investigated her grievance, the HR Advisor, Keith Byrne, offered the complainant the option of an informal interview for a job in Accounts Payable.  This would have provided her with the “like for like” shift that she had been working in the E-Store and I find it difficult to understand why she didn’t accept this proposal.  In her evidence, she said that the offer came too late, because, at that stage, she had been back working in the gardening section for two months and she liked the work.  If it was her intention to remain working with the company and to work Monday to Friday with no late evenings, the offer to consider a job in Accounts Payable was a perfect fit and the fact that the offer came eight weeks after the closure of the E-Store is not a credible explanation for refusing it.

I accept the respondent’s need for sales employees to work the flexible shift on a five over seven day basis, with one late evening and every second weekend.  The complainant was offered an alternative to this shift, in an administrative role which was comparable to the job she was doing in the E-Store, on an increased salary.  It is my view that this meets the test of reasonableness required of an employer in these circumstances.

Having refused to consider the administration job, there was no reason that the complainant should not have remained working as a sales assistant, with the phasing in over 12 months of the standard roster.  It is my view that it was not unreasonable of the respondent to commence the disciplinary process when she refused to work the evening shift, as part of the phasing in of the shift.  It seems to me that, having commenced the process, the outcome was always going to be dismissal, and the only person who could have prevented this happening was the complainant herself. 

Conclusion

I have examined documents submitted before the hearing of this complaint and I have also considered the oral evidence of the complainant and the witnesses for the respondent.  It is my view that, confronted with similar circumstance, most reasonable employers would have dismissed the complainant.  I find that, from the perspective of the procedure that led to the complainant’s dismissal, the respondent’s managers acted in accordance with the company’s disciplinary procedure.  The complainant was informed about the conduct that was leading to the disciplinary investigations, she was advised of her right to be represented and she was given an opportunity to state her case.  She was clearly advised of her right to appeal against the respondent’s decision to dismiss her, but she did not exercise that right, preferring instead to take up the resources of the WRC to have her complaint heard. 

Taking account of all these facts, I find that the decision to dismiss the complainant was arrived at only when the deciding manager, Mr Nally, considered the alternatives to such a drastic course.  I find that her dismissal was not unfair.

I have decided that this complaint is not well founded.

On July 15th, having previously been issued with a final written warning on July 2nd, the complainant was suspended without pay for three days.  In her evidence at the hearing, she said that she didn’t want to be suspended and she believes that she should not have been suspended without pay.  In breach of section 4 of the Payment of Wages Act, she claims that there has been an unlawful deduction from her wages of €406.

In response to this complaint, Mr Dwyer said that the complainant was rostered to work on July 15th, 16th and 19th.  She was suspended without pay, as she had already been issued with a first written warning and a final written warning.  Mr Dwyer submitted that the value of three days’ pay was €301.76 and not €406, which was the value of five days’ pay for the complainant.  Mr Dwyer submitted that the amount claimed was “not properly payable.”

A HR advisor, Ms Tania Rochford, gave evidence that she chaired the disciplinary meeting with the complainant on July 13th.  She confirmed that, the complainant was in receipt of a final written warning when, on July 8th, she refused to work the evening shift.  On July 15th, Ms Rochford decided that, in accordance with the disciplinary procedure, the complainant would be issued with a period of unpaid suspension for three days.

The Relevant Law

Section 5(6) of the Payment of Wages Act 1991 (“the Act”) addresses the circumstances in which wages which are properly payable are not paid:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

It is apparent therefore that, if I find that wages that were “properly payable” to the complainant were not paid, I must conclude that there has been a deduction from her wages.  Section 5(1) of the Act provides that, apart from tax, PRSI and USC, unless there is a provision in an employee’s contract of employment to deduct wages, without the employee’s written consent, a deduction may not be made. 

Findings

I have considered this complaint and I have examined the company’s disciplinary procedure which provides that an employee may be suspended without pay at the final written warning stage.  Section 28 of the complainant’s contract, under the heading, Company Standard Policies and Procedures,” provides as follows:

“This statement sets out the terms and conditions of your employment, which, together with any relevant document and/or collective agreement, (such as Company Handbook, Employment Regulation Order, Registered Employment Agreement) constitute your contract of employment.

“Colleagues are to familiarise themselves and observe the company policies and procedures as they form part of your contract of employment.  From time to time, the contents may be revised.  Any amendments will be notified to you in writing.”

It is apparent that this clause in the complainant’s contract of employment, which she signed on June 23rd 2014, provides that up to five days’ suspension without pay is included in her terms and conditions of employment.

It is my view that, on July 15th, when the HR advisor suspended the complainant without pay, so that the complainant would have an opportunity to consider an administrative job or to work the sales assistants’ roster, she was stepping back from the ultimate and irreversible decision of dismissal. It is regrettable that the complainant did not avail of this opportunity.

While she was suspended, the complainant’s wages are not properly payable, meaning that she has no legal or contractual entitlement to sick pay.  As this condition of being “properly payable” has not been met, it follows that there was no deduction from wages which were not due.

During her absence on suspension, the complainant was not entitled to wages and her wages were not properly payable.  For this reason, I decide that this complaint under the Payment of Wages Act 1991 is not well founded.

The complainant has alleged that she was not notified of a change to her terms and conditions of employment, in accordance with the provisions of the Terms of Employment (Information) Act 1994.  At the hearing, the complainant said that she should have received “something in writing” when the E-Store closed in February 2021.   She said that, when she moved to the E-Store in 2018, she got a new contract to confirm the move.

In response to this complaint, Mr Dwyer said that, when the E-Store closed and the complainant was re-assigned to work as a sales assistant, meetings were held in the store at which she was informed of the changes to her job.  Mr Dwyer said that there were no changes to the complainant’s terms and conditions of employment arising from the change in her role.

The Relevant Law

Section 5 of the Terms of Employment (Information) Act 1994 addresses the requirement for an employer to provide a written notification to an employee if there are changes in a statement previously issued:

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, 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

Subsection (b) and subsection (2) are not relevant to the complaint under consideration here.

A copy of the complainant’s “Principal Statement of Terms and Conditions of Employment” dated June 11th 2014 was provided at the hearing.  This confirms that the complainant’s service was continuous from March 25th 2011.  The statement provides that the complainant is employed as a full-time store colleague.  Under the heading, “Functions and Duties,” the statement notes that the complainant is a goods inwards clerk.

It is apparent from the documents provided at the hearing that, on December 19th 2018, the respondent issued the complainant with a letter confirming her move to a job as an E-Store colleague.  There were no other changes to her terms and conditions of employment.  The complainant expected a similar letter to be issued to her in February 2021, when the E-Store moved to Drogheda and she was assigned to a role as a sales assistant.

The issue I must decide is, when the E-Store moved to Drogheda and when the complainant was assigned to a job as a sales assistant in the Tallaght Store, was the respondent legally obliged to issue a written notification of the change, and was such a notification issued?

Findings

I note that the respondent’s head of HR, Mr David Nally, met the complainant on February 1st 2021 to inform her about the move of the E-Store and the options for her regarding a move to Drogheda or a return to a role in the Tallaght store.  There is no dispute that the complainant was informed of the change, although, on February 1st, this wasn’t confirmed in writing.  I have no concern regarding the information available to the complainant in February 2021 and I am satisfied that she was aware of the change to her job as a result of the E-Store moving to Drogheda.  I can understand why a letter similar to the one issued in December 2018 wasn’t issued to the complainant in February or March 2021, because it is clear that she objected to the change and that the managers were trying to find an alternative that would be more acceptable.

Having considered this complaint, I am certain that no disadvantage arose for the complainant from the failure of the respondent to issue a letter confirming the change to her role in February 2021.  However, the fact that no detriment occurred does not ameliorate the fact that there was a breach of section 5(a) of the Terms of Employment (information) Act, because the change in the complainant’s role is a change in the “particulars” included in the Statement issued to her in 2014.

I have decided that this complaint is well-founded.  I am mindful of the fact that the change envisaged by the move of the E-Store to Drogheda in February 2021 was communicated to the complainant in good time and that she was aware of the implications for her job.  Taking all the facts into account, I decide that the respondent is to pay the complainant compensation of €456, equivalent to one week’s pay.

On her complaint form, and, at the hearing on April 8th 2022, the complainant argued that she should have been given the option of being made redundant.

The position of the respondent is that the complainant’s job was not redundant. 

The circumstances in which an employee may claim a redundancy lump sum are set out at section 7 of the Redundancy Payments Act 1967 (amended) and can be summarised as follows:

(a)  The business has closed or the place where the business was carried out has changed;

(b)  There is a requirement for fewer employees in the business or at the place where the business was carried out;

(c)  The employer has decided that the work that that was done by the employee could be done by fewer or no employees;

(d)  The job will be done in future by a person who is more qualified or trained than the employee;

(e)  The job will be done by a person who is also capable of other work that the employee is not qualified or trained to do.

It is clear from the submissions presented at the hearing and the evidence of both parties, that the circumstances that prevailed at the respondent company in February 2021 do not fit into any of the five categories set out above.  It is evident that the complainant was dismissed when she rejected the options presented to her to resolve her grievance, which included a move to an administration job on the same roster as her E-Store job that transferred to Drogheda.  I must conclude that, as the complainant’s job was not redundant, she was not entitled to a redundancy payment.

I decide that this complaint is not well founded.

Change of role, grievance, flexible roster, redundancy