ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040242
Parties:
| Complainant | Respondent |
Parties | Grace Broderick | Tesco Ireland |
Representatives |
| Eimear Greenhalagh |
Complaints:
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-00052048-001 | 02/08/2022 |
Date of Adjudication Hearing: 02/06/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
the Complainant has brought a complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 1st of February 2019 was submitted within the time allowed.
As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case and which was provided at the same time as the Workplace relations complaint form. The Evidence adduced by the complainant was challenged as appropriate by the by the Respondent’s Representative. The Complainant alleges that her Employer Unlawfully deducted her pay when it refused to sanction sick pay during a period of prolonged illness. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the Statement/narrative but which had not been specifically particularised by this (unrepresented) Complainant. |
Summary of Respondent’s Case:
The Respondent had full representation at this hearing. The Respondent provided me with a written submissions dated 30th of May 2023. The Respondent provided two witnesses to speak to the events herein. These were Gary Redmond the Store Manager and Sharon Wallace a Colleague Relations Partner. All oral evidence was heard following an Affirmation. The Respondent was cross examined/ questioned by the Complainant. The Respondent rejects that there has been an unlawful deduction from the Complainant’s pay. The Company asserts that there is no automatic right to sick pay and that it is paid at the discretion of Management. It is not a payment, they submit,k covered by the Payment of Wages legislation. |
Findings and Conclusions:
I have carefully listened to the evidence adduced. The Complainant had worked for the Respondent company for the best part of twenty years. She had started on the floor when she was just out of school and has been promoted to Line Manager after completing the relevant training programme in-house. There can be no doubt that the Complainant was aware that in the course of her employment she was liable to be moved from store to store as management in conjunction with the needs of the company might ask of her. Indeed, in her formative years she had worked in various different outlets – Artane, Ashford and Clearwater. By early 2022, the Complainant had worked in the Dundalk Tesco for at least five years. She had had two babies and was living in the town with her Husband as well as working there. I note that the Complainant had advised her employer that her youngest child had been having a number of medical issues which meant that she needed to be close to the child (who was being child minded close to home) and to the Hospital. I understand that the Complainant (with the agreement of her Employer) scheduled Parental Leave days into her working week to allow her to spend appropriate time with her children. This was all part of the back to work discussion the Complainant held with her Employer at the end of 2018 or the beginning of 2019 (following her second pregnancy). Quite out of the blue the Complainant was approached by the Store Manager on the 1st of February 2022 and told that she was being moved out of Dundalk and down to Balbriggan which said move was due to commence in six days’ time on Monday the 7th of February 2022. I have no difficulty accepting that the Complainant was deeply shocked and upset by this directive which had been made without reference to her. The Complainant was being asked to exchange the position in Dundalk that she could walk to from her home, for a position in another store which was a forty-five-minute drive away. No explanation was given for how this decision was reached and why the complainant was uniquely identified as the person who would be moved. The Complainant was not advised as to what role she would take on, nor was she told whether there would be a financial incentive (or expenses) for the move from one county to the next. The Complainant was simply given six days’ notice that (from her perspective) her world was being turned upside down. I appreciate that at a corporate level the ask being made of the complainant was deemed perfectly reasonable and in line with what is contained in the Contract of Employment regarding flexibility and Mobility. As against that, I would suggest that the point of having a Colleague Relations function or a Human Relations function within the corporate enterprise is a clear recognition of the fact that Employees cannot be treated as some one size fits all grouping. The workforce is made up of individuals and each is entitled to have their expressed individual concerns taken into account and no individual should be diminished or debased for raising legitimate concerns. In the course of the hearing, I was struck by how little support the complainant seemed to have in the workplace. There was no suggestion of Union Representation and I do not know if a Regional Manager might have taken the time to listen. In any event the complainant became so upset by what was being asked of her that she attended her G.P. in a state of distress. This she did on the same day that she was notified of the six-day countdown. The G.P. certified the Complainant as being in need of respite from the workplace by reason of work-related stress. It should be noted that I accept that this is a medical diagnosis which, in the ordinary course of things, should not be undermined or questioned by someone who is not a qualified Doctor. On the 7th of February – the date the Complainant was due to move to Balbriggan - the Complainant met with the management at a “Welfare Meeting” as she was out on work related stress. The Complainant confirmed that the proposed move to Balbriggan has given rise to stress and anxiety such that she was unable to be in the workplace. In a subsequent letter to the Complainant dated the 16th of February 2022 the Store Manager Mr. Gary Redmond (who gave evidence at the hearing) indicates that the sickness absence is to be unpaid under the company scheme. Mr. Redmond confirms that it is the Complainant’s own admission which has brought about this result. I am concerned at this outcome, as it suggests to me that Mr. Redmond (as the decision maker) failed to understand that the Complainant who had a medical diagnosis with very real symptoms cannot help how her anxiety has been triggered. In fact, Mr. Redmond appears, to my mind, to be punishing the Complainant for reacting badly to the proposed changes in her Contract of Employment. It seems to me that in the first instance the Employer has (unwittingly) triggered a mental health episode, and then has doubled down on it by dismissing any claim to remunerative payment under the discretionary pay scheme. The Complainant gave very compelling evidence on how upsetting she found this episode to be. The Complainant has worked with this Employer for nineteen years and has always been a good and hard-working member of the team. She raised a Grievance concerning her sickness pay but Mr. Redmond’s decision was confirmed. Regrettably the Complainant did not raise a Grievance regarding her proposed move, nor was she given a right to Appeal the move. In fact, it seems that from February 2022 the Complainant was considered to be moved out of Dundalk and would only ever return to the workplace at the Balbriggan retail unit. As I have previously noted, the Complainant does not appear to have had anyone looking out for her. In fact, the complainant never returned to the workplace and in the end, she resigned her role (the following June) after 20 years of service rather than be moved to the Tesco in Balbriggan. This is a regrettable outcome for the Complainant. Ultimately, however, whilst I might regret how the Complainant was treated by her Employer, I cannot find that she had an automatic right be included in the sickness pay scheme. There was a discretionary inclusion policy and whilst I might think the decision made was wrong headed, I cannot find that there has been any unlawful deduction from wages due and owing to the Complainant.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00052048-001 - The Complaint herein is not well founded |
Dated: 28th June 2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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