Complainant

Respondent

Parties

Magdalena  Kaminska

LIDL Ireland GmBH

Representatives

  Self

Fieldfisher

Act

Complaint Reference No.

Date of Receipt

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

CA-00041087-001

17/11/2020

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

CA-00041087-002

17/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00041087-005

17/11/2020

The Complainant commenced her employment with the Respondent on 8th March 2007.

She referred her complaints to the Director General of the WRC on 17th November 2020. 

The parties confirmed that the Complainant has been absent on sick leave since August 2020. Prior to the sick leave she worked 30 hours a week and was paid €14 per hour.

The Complainant submits that she did not receive a statement in writing of her terms of employment.

At the adjudication hearing the Complainant confirmed that she did receive her terms of employment on the commencement of her employment. However, she argued that did not receive an amended contract following her demotion. This matter is addressed in CA-00041087-002, below.

The Respondent submits that the Complainant was employed under a Contract of Employment dated 8th March 2007. When the Complainant was promoted to Anchor, her contract was amended. The Amendment to Contract form was issued. When the Complainant was demoted following the disciplinary process, an Amendment to Contract form was submitted on the 24th of June 2020. The Complainant did not sign this document.

The Complainant commenced her employment with the Respondent on 8th March 2007. At the time she received a Contract of Employment which was signed and dated by both parties on 5th March 2007. A copy of the document was exhibited at the hearing. The Complainant confirmed at the adjudication hearing that she was furnished with the Contract of Employment at the start of her employment.

I declare this complaint to be not well founded.

The Complainant submits that she was not notified in writing of a change to her terms of employment.

The Complainant submits that she was demoted by the Respondent and her hourly rate of pay was reduced. However, she did not receive or sign any documents in respect of the demotion and salary change.

In cross-examination, the Complainant confirmed that she was notified of the outcome of the disciplinary hearing and the appeal hearing. She agreed that the letter dated 3rd June 2020 confirmed the change of her status and the issuing of a final written warning.

The Respondent argues that the disciplinary hearing outcome was communicated to the Complainant on 3rd June 2020. The Complainant commenced sick leave on 24th August 2020.

The Respondent exhibited a copy of a form entitled Amendment to Contract of Employment and dated 24th June 2020. The form reflected the change of the Complainant’s role and hourly rate of pay.

Evidence of the Area Manager (AM)

The AM said in his evidence that the letter confirming the outcome of the disciplinary hearing informed the Complainant of the final written warning and the demotion. The delivery of the outcome letter was equivalent of the amendment to the contract. The Amendment to Contract of Employment form is an administrative form to reflect the demotion. The AM said that he queried at the time why the form was not signed but he was satisfied that the outcome was delivered to the Complainant and the form was used for administrative purposes. The AM confirmed that the outcome letter does not reflect the reduction of the rate of pay.

The relevant law

Section 5 of the Terms of Employment (Information) Act, 1994

5. Notification of changes

(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,

There was no dispute that, following a disciplinary process, the Complainant’s role was changed from an Anchor to Customer Assistant as of 3rd June 2020. As of that date her rate of pay was reduced to €14 per hour.

There was no dispute that the Complainant received her initial Contract of Employment on 5th March 2007. Following her promotion in 2008, the Complainant received an Amendment to Contract of Employment, which she signed and dated on 27th February 2008.

The Respondent exhibited an Amendment to Contract of Employment form dated 24th June 2020 which states as follows:

“This Agreement dated 24.06.20 is made between [the Respondent] and [the Complainant] …

Where it is agreed between the parties that in addition to the current Contract of Employment and any other documents, which together form the Contract of Employment, the following amendments will apply…”

The document reflects the change of the Complainant’s role and the rate of pay as of 3rd June 2020.

It goes on to say:

“Both the Company and the Employee verify that the information detailed above is valid and correct. Both parties are in agreement that the relevant terms and conditions as laid down in the original contract of employment and the information in the additional agreement are binding”.

The document requires two signatures on behalf of the Respondent, Line Manager and Disciplinary Line Manager. The document is not signed by either.

The document also states:

“I understand and agree to the conditions as set out above and confirm that I have received a copy of this amendment.”

An employee’s signature is required underneath this statement. The Complainant did not sign the document.

The last part of the document says:

“Line Manager to provide a completed copy of this Amendment to Contract of Employment to the Employee and Payroll.”

I note that the Complainant did not receive a copy of the document.

I  note the Respondent’s contention that the Complainant received the letter of 3rd June 2020, which outlined the outcome of the disciplinary hearing. In my view, the issuing of the disciplinary process outcome letter does not discharge the obligation put on the Respondent by Section 5 of the Act to notify the Complainant in writing of the nature and date of the change. The details on the Amendment to Contract of Employment  form seem to suggest that the Respondent has a procedure in place in that regard. However, it appears, that the procedure was not followed in the within case and the Complainant was not notified in writing of the changes to her terms of employment.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant compensation of €1,260 which is approximately three week’s wage.

The Complainant submits that she was penalised for complying with or making a complaint under the Act.

At the adjudication hearing, the Complainant submitted that there were many situations that would support her claim. The Complainant gave an example of a situation that occurred in 2018 when the Manager asked her to unpack freezer delivery. She claims that there were pallets of bakery products, some 2 meters high. She told the Manager that she was not able to do that, he asked why, and she replied, “look at me”, to which he responded that there is no difference between them, he got angry, and an argument ensued. The Manager then put the Complainant on the check out and a colleague was asked to unpack the delivery. The Complainant submitted that she complained of other things such as a broken floor cleaning machine, and she refused to do jobs which she considered were too heavy for her. The Complainant confirmed that she did not report the matter to anyone.

In cross-examination the Complainant confirmed that at some stage in 2018 she refused to unpack the delivery, she was then assigned to tills and a colleague was asked to unpack the delivery. She confirmed that she did not raise a grievance in that regard.

The Respondent submits that no act of penalisation has been identified. No detail has been provided in the claim form such as would allow the Respondent to understand the complaint that is being advanced or to prepare any defence to such claim.

In relation to the disciplinary process, the Respondent submits that the Complainant at all times understood the correct procedures and was able to explain them clearly at each step of the disciplinary process.  The Complainant acknowledged her wrongdoing and admitted having repeatedly breached the Respondent’s cash management procedures. She was at all times afforded sufficient notice of the possible consequences of the disciplinary process and was afforded the opportunity to answer the allegations put to her and to present her case fully. She was also afforded the right to appeal which she exercised. The Respondent has acted fairly and reasonably at all times during the investigation, disciplinary process and appeal process. The sanctions were appropriate in all of the circumstances.

The relevant law

27. Protection against dismissal and penalisation.

(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes–

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

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

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for–

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

In Toni & Guy Blackrock Limited v Paul O’Neill HSD095, the Labour Court stated 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. 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.”

In order to succeed with her claim, the Complainant needs to establish that she was threatened with or suffered penalisation as defined in section 27 (1) and (2) which would have not occurred ‘but for’ the Complainant having carried out the protected act.

In the within case, the Complainant gave an example of circumstances where she refused to carry out a task that she believed was too heavy for her at some stage in 2018. She suggested that more of this type of events took place between her and her line manager. While health and safety considerations may well have arisen, the Complainant confirmed that at no stage did she raise the matter formally. The Complainant has not adduced any evidence that she committed a protected acts as listed in the Act.

I declare this complaint to be not well founded.

Terms of employment – safety health and welfare at work