Complainant

Respondent

Parties

Shauna  Furlong

Eason Limited

Complainant

Respondent

 Parties

Shauna Furlong

Eason Limited

Representatives

  self

Fergus Dwyer IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046558-001

05/10/2021

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

CA-00046558-002

05/10/2021

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

CA-00046558-003

05/10/2021

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

CA-00046558-004

05/10/2021

The Complainant’s store was acquired by Eason’s in October 2019.

She moved to Eason’s on the same terms and conditions that she had with her former employer.

The Complainant worked 40 hours per week and was on an hourly rate of €10.80.

The Complainant stated that she didn’t receive any statement of her terms and conditions of employment. It is conceded by the Employer that is the case and that there were mitigating circumstances for that omission.

The Complainant stated that her employer failed to pay her a Sunday premium as required by law and that her supervisory rate of pay was for the entire week and not for working a Sunday. The fact that she was rostered to work at weekends did not mean that she was receiving compensation for working on Sunday. The supervisory rate was for supervision. The hourly rate should have reflected a premium for working Sunday separate to the payment for working as a supervisor. The payments are entirely separate.

The Complainant stated that she believed that she had no alternative but to leave the Company as her grievances were falling on deaf ears.

She had raised grievances about:

·       Work difficulties with another colleague

·       Her potential demotion to a shop assistant other than at weekends

·       The potential loss of her role if she did not accept that demotion

·       The unfair scheduling of her on weekend and evening shifts to cover for a colleague(s)

In these circumstances where she has written two emails and discussed the issues with her manager, she had no alternative but to leave her job.

On or about 30th August 2021 the HR Manager met the Complainant in Arklow to offer her enhanced Eason terms of employment. At that meeting the Complainant raised several issues with her relating to her status as a supervisor. While her previous employer paid her a weekend supervisory rate, she in fact was a supervisor for the entire week. Eason’s at the time of transfer was told that she had a weekend supervisory rate.

The HR Manager stated that she would revert. On or about the 8th of September 2021 the Complainant resigned to take effect on the 12th of September and took up another role. There has been no break in employment as the Complainant left to go to another job.

The Complainant has stated in her submission that she was told by a manager that if she insisted to be a supervisor other than at weekends there might not be a role for her. That statement is refuted by the company and is denied. In fact, the company has regularised several other supervisors in the group of stores that they  acquired, who also raised queries about their status with Eason’s. The company had acted in good faith and honoured the terms as communicated to them. Where an employee brought to their intention a practice that they had no knowledge of it was investigated and if confirmed was honoured by the company.

The Complainant paints a picture that she had no choice but to leave as she had tried on several occasions to raise matters relating to her terms of employment as a supervisor and about another staff member who it is alleged was difficult to manage.

 There was no contractual diminution in the Complainant’s terms and conditions. In fact, the Respondent wanted to enhance her terms. The company did follow up on her requests; however, they were not informed that these were red flag matters for. It also a fact that the Complainant has not followed the grievance procedure that allows for such issues to be resolved.

The Complainant relies on two email communications one sent in August 2019 prior to the transfer, and another made in September 2020. Those emails do not meet the requirement as set down by the statutory code and the grievance procedure detailed in the company handbook that she was given.

The Complainant was given a staff handbook that clearly sets out the grievance procedure. The only stage arguably initiated was the informal process. The Complainant could have escalated her grievance as set out in the grievance policy which is in line with best practice and details a staged process so that a resolution may be achieved. She chose not to do utilise that grievance procedure. She believed that informal statements and emails met that requirement.

If that same standard was relied upon by an employer in an unfair dismissal claim, fair procedures would not to have been applied. Likewise, the employee must adhere to reasonable procedures so that grievances are flagged according to their level of seriousness and that they are resolved at the right level as soon as possible.

The facts show an employer who wished to give the employee enhanced terms:

·       A rate increase from €10.80 to €10.96

·       Access to the Eason retail pay scale with annual increases in line with service on the contract anniversary date.

·       Enhanced holiday provisions.

·       Overtime hours to be paid after 39 hours at 1.5 times

·       Defined break periods

·       Access to a pension scheme

·       An enhanced sick pay scheme.

·       Access to an EAP scheme.

The company accepts that it did not comply with the requirement as set down in the Act relating to a statement of core terms. There were mitigating factors for this. The wider company was hit severely by the Covid Pandemic and the company was forced to commence a major restructuring. Its survival was its primary focus. Several key HR personnel left the Company, and the HR manager was on special leave. What should have taken a very short time to address the Complainant’s queries and to produce an updated statement of terms of employment; unfortunately, due to the pandemic and the need to focus on restructuring, delays did occur. The Respondent asks the tribunal to have regard to these mitigating factors.

Finally, the company stated that the Complainant was paid an enhanced weekend Supervisory rate, and this must be understood to meet the requirement as set down in the relevant Act.

CA-00046558-001 Section 27 of the Organisation of Working Time Act, 1997-Sunday Premium:

The previous employer provided the Complainant with a comprehensive contract that she signed on the 5th of October 2012.

Section 14 of the Organisation of Working Time Act 1997 states:

14.— (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

In a similar case to that of the Complainant, Viking Security Ltd v Valent DWT 89/2014, the Court determined that it could only be satisfied that the employee has obtained his or her entitlement in so far as that element of compensation was clearly discernible in the contract.

This was also the Court’s determination in Park House Hotel v Wlodarczyk DWT 24/2016 where it was held that an assertion that the rate had been included, was insufficient to show that the employer was compliant with section 14.

Section 14(4) states:

(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

The Respondent has opened several payslips that do show that the supervisor appears to be paid a higher rate than other supervisors who don’t work the weekend.

In evidence the supervisor stated that was her personal rate and it did not relate to the weekend solely.

In the absence of any specific reference in the Complainant’s contract or collective agreement to a rate for working on Sunday, I must find that the Respondent is in breach of the section.

Section 27(3) of the Organisation of Working Time Act 1997(Act) states:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’ s employment.

I declare that the complaint is well founded.

CA-00046558-02/03 Section 7 Terms of Employment (Information) Act, 1994

The law requires that the employer shall provide the following within 5 days of commencing employment and after 2 months, which is detailed at section 3 of the of the Terms of Employment (Information) Act, 1994:

(1A) Without prejudice to subsection (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 the Companies 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 the National 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.

The second provision states that :

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,

(ga) that the employee may, under section 23 of 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.

The employee did receive a contract of employment on the 5th of October 2012, that contract substantially met the terms as required by the Act. Those terms transferred to Eason’s, and they were fully honoured. New enhanced terms were also being discussed and due to exceptional trading difficulties, those discussions could not be concluded until late 2021 when the employee left the company.

I note that section 7(2)e provides for the following:

(e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The contract terms were fully honoured, those terms were given to her in writing by a previous employer. There were justifiable delays in concluding new enhanced terms arising from the Pandemic and trading difficulties. The complaint at best is a technical breach concerning the failure by a new employer to detail terms and the fact that a term of the employment related to the whole week concerning status as a supervisor. The Complainant accepted that there was no diminution in her pay.

I determine that the complaint is a technical breach and while well founded based on the circumstances of this case where the Employer is in fact enhancing terms, I  make no award of compensation as to do so would be unjust and unfair. Any delay that arose was caused by the constraints created by the Pandemic and the business imperative to restructure the business.

CA-00046558-04 Section 8 of the Unfair Dismissals Act 1977 as amended:

Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:

A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law ( Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment but its conduct may be nonetheless unreasonable.

In law there is a contract test and a reasonableness test.

In a wrongful dismissal action in Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.

Has a fundamental breach of the contract occurred in this case? There is no evidence that is the case. In fact, there is evidence to the contrary that the terms were being enhanced.

The second test concerns the requirement to show that the behaviour of the Respondent was so unreasonable that they had no alternative but to resign. There is no evidence of such behaviour. There was some delay in reverting to the employee; however, in the circumstances of the difficulties facing the business that delay was excusable. The employee did not move past the initial stage of the grievance process and in her original contract of employment and in her new handbook given to her by Eason’s that process is well documented.

The complaint of unfair dismissal has not been made out by the Complainant; she was not unfairly dismissed rather she resigned from her employment. The complaint is not well founded.

CA-00046558-001 Section 27 of the Organisation of Working Time Act, 1997-Sunday Premium

The fact is the employer belatedly after acquiring the company and navigating its way through very stormy waters has detailed terms and conditions for employees including entitlement to a Sunday premium.

However, in this case, partly due to a breakdown in communication and delay arising from shutdown and restructuring, no contract was issued that detailed payment for Sunday work. The new employer had applied all the previous terms as communicated to them and the employee had never raised the matter with her previous employer.

In the absence of any specific reference in the Complainant’s contract or collective agreement to a rate for working on Sunday I must find that the Respondent is in breach of the section.

Section 27(3) of the Organisation of Working Time Act 1997(Act) states:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’ s employment.

I declare that the complaint is well founded. I award the Complainant €1500 in compensation.

CA-00046558-02 Section 7 Terms of Employment (Information) Act, 1994

The Respondent failed to provide a written statement of terms within 5 days of commencing employment. The complaint is well founded.

I determine that the complaint is a technical breach and while well founded based on the circumstances of this case where the Employer is in fact enhancing terms, decline to make any award of compensation as to do so would be unjust and unfair. The Act provides for this at section 7 where it states the Adjudication Officer may order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances.

Any delay that arose was caused by the constraints created by the Pandemic and the business imperative to restructure the business. The plain reading of this provision clearly provides for a situation where a complaint while technically well founded; on the merits it is not appropriate to award compensation.

CA-00046558-03 Section 7 Terms of Employment (Information) Act, 1994

The Respondent failed to provide a written statement of terms within 2 months of commencing employment. The complaint is well founded.

I determine that the complaint is a technical breach and while well founded based on the circumstances of this case where the Employer is in fact enhancing terms, decline to make any award of compensation as to do so would be unjust and unfair. The Act provides for this at section 7 where it states the Adjudication Officer may order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances.

Any delay that arose was caused by the constraints created by the Pandemic and the business imperative to restructure the business. The plain reading of this provision clearly provides for a situation where a complaint while technically well founded; on the merits it is not appropriate to award compensation.

CA-00046558-04 Section 8 of the Unfair Dismissals Act 1977 as amended:

In a wrongful dismissal action in Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them

The facts in this case are not supportive of the employee’s contention that the contract had been fundamentally breached. There was no breach of any term. In fact, terms were being enhanced.

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee when assessing if constructive dismissal has in fact occurred; and the following 4 principles are also relevant in this case:

1.       The test is objective

2.       The test requires that the conduct of both employer and employee be considered

3.       The conduct of the parties as a whole and the accumulative effect must be looked at

4.       The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.

Has a fundamental breach of the contract occurred in this case? There is no evidence that is the case. In fact, there is evidence to the contrary that the terms were being enhanced.

The second test concerns the requirement to show that the behaviour of the Respondent was so unreasonable that they had no alternative but to resign. There is no evidence of such behaviour. There was some delay in reverting to the employee; however, in the circumstances of the difficulties facing the business that delay was excusable. The employee did not move past the initial stage of the grievance process and in her original contract of employment and in her new handbook given to her by Eason’s that process is well documented. In cross examination the Complainant accepted that she was given the handbook and failed to utilise the grievance process as set out by the Company.

The complaint of unfair dismissal has not been made out by the Complainant; she was not unfairly dismissed rather she resigned from her employment. The complaint is not well founded.

Sunday Premium -Failure to provide a written statement of terms-Constructive Dismissal.