Complainant

Respondent

Parties

Marie  Mccabe

Sprucefield Limited Supervalu Bailieborough

Representatives

Nicola Dowling Williams Solicitors LLP

Michelle Loughnane, Mullany Walsh Maxwells

Act

Complaint/Dispute 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-00048471-001

04/02/2022

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

CA-00048471-002

04/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00048471-003

04/02/2022

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

CA-00048471-004

04/02/2022

The Complainant was engaged as a part-time Post Office Administrator by the Respondent on 22 May 2020 and was paid €11.30 per hour. She stated that her employment was unfairly terminated on 30 November 2021 when she was removed from her position in the post office, that she did not receive her minimum notice entitlements and was not paid for the last two weeks of her employment. She also asserted that she did not receive a written statement of her terms and conditions of employment.

The Complainant was engaged as a Post Office Administrator on 22 May 2020. She was employed initially to work three full days per week when the Post Office manager, Maura Higgins, was on maternity leave. Ms Higgins returned from maternity leave in late August / early September 2020.

On 1 July 2021, the Complainant was called to the Postmistress, Lorraine Harris’s office for a meeting. The Complainant was advised that her hours were being reduced from 24 hours per week to 10 hours. Ms Harris advised her that Ms Higgins needed help to close in the evenings and that she would be reducing the Complainant’s hours so she would not be working in the evening because of Ms Higgins’s stress levels. The Complainant advised Ms Harris that she had spoken with Ms Higgins about her stress levels and they agreed they would work together to try and solve the problems in the workplace which brought the Complainant and Ms Higgins into conflict. Ms Harris disclosed to the Complainant that Ms Higgins was close to crying when she arrived home in the evenings and that this was due in part to the Complainant. Specifically, the alleged cause of Ms Higgins’s stress was that the Complainant was not able to close up at the end of the day. The Complainant stated that she had not been provided with training to enable her to close up at the end of the day. The Complainant listened to Ms Harris and agreed that she would revert to her once she had thought about the matter further with a view to reaching a compromise. The Complainant had a further meeting with Ms Harris once she had reflected on the direction to reduce her hours on 6 July 2021 and it was agreed that she would reduce her hours to 16 per week. The Complainant discussed the matter further with Ms Higgins and agreed to work three mornings per week – 8:45 am to 2:30 pm. The Complainant was flexible and often worked more than 16 hours per week by agreement with the Respondent.

In or around 10 November 2021, Ms Harris rang the Complainant at home and said she wanted to have another meeting with her. The parties agreed to meet on Friday 12 November 2021. During the meeting, Ms Harris referred to difficulties which the Complainant was having with her job. The Complainant stated that she understood Ms Harris was referring to Western Union, which she was initially nervous about but stated that she had acquired competence at handling the transfers, despite her initial apprehension. Ms Harris also highlighted an error which the Complainant had made in making an overpayment to a customer in the amount of €100 and advised her when the end of day figures were tallied, the shortfall of €100 appeared in her position/teller number. The Complainant was advised that Ms Higgins had checked the camera and could not clearly identify a particular transaction where the error was made. Ms Higgins had identified one possible transaction which may have been problematic but the quality of the camera footage was poor. The Complainant offered to rectify the shortfall and duly made up the discrepancy from her own funds. The Complainant was told of other errors by Ms Harris but was not provided with any detail of these. The Complainant was also advised by Ms Harris that had a Post Office inspection taken place that day, the nature of such an inspection would mean that ‘three strikes’ would result in her losing the Post Office. Ms Harris further explained that the Complainant was unable to open the Post Office in the morning time and if Ms Higgins could not come to work, this would be a real problem for her. The Complainant stated in evidence that she was not trained on opening the Post Office in the morning time. Notwithstanding the lack of training, the Complainant stated that she helped her colleagues in the mornings in setting up the Post Office and gained a degree of competence through experience. Ms Harris also advised the Complainant that more bank business was coming to the Post Office and it would not be fair to put the extra stress on her. The Complainant said she never had a problem handling the banking service offered by the Respondent.

Ms Harris further advised the Complainant during the meeting that she would be an excellent cashier on the tills in Supervalu because she was good with customers and was honest.  While the Complainant’s submission stated that was unsure as to whether she was being offered a job on the tills in Supervalu, she clearly stated in her sworn evidence at the hearing that she was offered the role and asked for time to think about it. She also stated that she was shocked when she reflected on the meeting because she felt she was being denied the opportunity to return to the Post Office the following week beginning 15 November 2021. 

The Complainant further stated that on 23 November 2021, she received a text from Lorraine Harris asking her about the cashier position. Ms Harris indicated she wanted to meet up and asked the Complainant to give her a call at some stage. The Complainant replied by text message on 24 November 2021 to confirm she would not be taking the position of cashier in Supervalu. At no point did the Complainant state or imply she was retiring.

On Monday 29 November 2021, the Complainant sent Ms Harris a text message and a meeting was arranged for 3 pm on Tuesday 30 November 2021. The Complainant anticipated that having turned down the role of cashier she would be returning to her job in the Post Office the following week.

When the Complainant met with Ms Harris, she looked at the Complainant’s last payslip which included her hours worked to date. The Complainant asked whether her employment was being terminated and Ms Harris confirmed that it was. The Complainant stated that she was shocked as well as angry and queried the process adopted by the Respondent in the lead up to her dismissal. The Complainant put it to Ms Harris that if she was being dismissed, she was entitled to have the allegations / complaints put to her in writing and that she was entitled to a right of reply. She stated that she also queried why she was never provided with a contract of employment or a copy of the Respondent Employer’s disciplinary policy. She further added that Ms Harris was stuck for words and indicated to her that she knew the Complainant and her daughter well and would not like to go through the process of issuing verbal and written warnings.

The Store Manager initially gave evidence and stated that she was aware of the issues around the Complainant’s performance in the post office but was happy to allow her to transfer to the supermarket. She stated that Ms Harris informed her after the meeting of 12 November that the Complainant had asked for time to think about the cashier role. She further stated that Ms Harris had informed her on 30 November that the Complainant was not going to take up the proposed role.

The Delicatessen Manager stated in her evidence that the Complainant had informed her around December 2021 when she saw her in the supermarket that she had retired.

The Post Office Manager, Maura Higgins, stated that she returned from maternity leave in September 2020 and began working with the Complainant for the first time. She stated that the Complainant was underperforming in several aspects of her role and that she was very inefficient in her balancing of the till. As a result, she discussed the difficulties with Ms Harris and it was agreed that she would retrain the Complainant again from scratch. She stated that she could not train her on the tasks around the closing of the post office because it was still taking her too long to complete other easier tasks. She stated that she found it stressful working with the Complainant and always had an ear out for what she was doing and tried to prevent problems arising. As a result of her underperformance and the mistakes caused by the Complainant, Ms Higgins asked Ms Harris in July 2021 if the Complainant’s hours could be reduced and she could only work in the mornings. She also stated that the Complainant made numerous mistakes, that she watched her turning Post Office savings bank customers away because she could not deal with them, that complaints had been made about her and that people were going to the other queue at lunch time to avoid dealing with her. Ms Higgins also stated that she told Ms Harris in November 2021 that she would have to hand in her notice if she could not get another member of staff instead of the Complainant because she could not handle working with her anymore, especially around the impending Christmas period.

Ms Harris, the Postmistress of the post office and the owner of the Supervalu supermarket as well as a director of the Respondent, stated that she first became aware of issues with the Complainant’s performance in October 2020. She stated that she heard no more until January 2021 when Ms Higgins met with her and told her that the Complainant was still struggling. She stated that Ms Higgins told her that she would have to bring in one of the Supervalu staff to cover for the lunch breaks because the Complainant could not cope with the level of work during this period and noted that she availed of such assistance for a period of 14 weeks. Further to another meeting with Ms Higgins, wherein she was informed that there was no improvement in the Complainant’s performance, Ms Harris stated that she met with the Complainant again in July 2021 and suggested that she only work mornings instead. She believed that this would alleviate the stress on Ms Higgins but it did not do so.

Ms Harris stated that Ms Higgins came to her again in November 2021 looking for additional assistance because of the difficulties caused by the Complainant’s performance but that she refused this request. As a result, Ms Higgins informed her that she was resigning from her position because she could not cope with the stress levels caused by the Complainant’s underperformance. Further to this, Ms Harris stated that she discussed the matter with her management team and it was agreed that the best option would be to move the Complainant to a position on the supermarket tills. This was communicated to the Complainant by Ms Harris in a meeting on 12 November 2021 and she was also told of the additional stress that her underperformance was causing Ms Higgins. The Complainant told Ms Harris that she would reflect on the matter and agreed to revert to her the following week.

As she had not heard from her, Ms Harris contacted the Complainant via text message on 23 November 2021 who informed her by reply that she was not interested in taking up the cashier role in the supermarket. A meeting was arranged on 30 November 2021 to discuss the matter further at which Ms Harris stated she pleaded with the Complainant to take up the cashier role at least on a trial basis which the Complainant refused to do. Ms Harris also stated that she told her at this meeting that she had been made aware of a position at a post office in Nobber, Co Meath which would be more suitable for the Complainant because the office was not as busy but highlighted that the Complainant also refused this offer.

CA-00048471-001:

THE LAW

The Terms of Employment (Information) Act 1994, section 3, sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the employment.

(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)      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, 1963),

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)        in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

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 –

l)        (i)incapacity for work due to sickness or injury and paid sick leave, and

m)    (ii pensions and pension schemes.,

n)      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,

o)      a reference to any collective agreements which directly affect the terms and conditions of 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 Act also requires this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

FINDINGS

It is the Complainant’s position that she did not receive any written statement of her terms and conditions of employment as required by the Terms of Employment (Information) Act 1994 outlined above. While I noted the Respondent’s assertion that the contract was ready for her on 12 May 2020 and that she had been informed of this, it was accepted that the requisite written statement was not provided. Accordingly, this complaint is well founded.

CA-00048471-002

THE RELEVANT LAW:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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) of the Unfair Dismissals Act, 1977 provides as follows:

4)     Without prejudice to the generality of subsection (1) of this section 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 one or more of the following:

(a)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal”.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer…. considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal and

b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.,

FINDINGS

I note in the first instance that, while much was made by the Respondent of the suggestion that the Complainant had indicated in the meeting of 30 November 2021 that she was retiring and was therefore voluntarily leaving her employment, this was vigorously disputed by the Complainant. Although I noted the supporting evidence of the Delicatessen Manager who agreed with Ms Harris that the Complainant had also told her she was retiring, she did not in fact retire and secured further employment in July 2022. In these circumstances, I lent no weight to the assertion that the Complainant said she was retiring at the meeting of 30 November 2021 and find that any such allegation was not relevant for the purposes of my ultimate findings.

While the Complainant’s representative alleged that she was in fact dismissed from her role as Post Office clerk in the meeting of 12 November 2021 without any regard to due process or fair procedures, I am also satisfied based on the evidence presented that she was offered the role of cashier in the supermarket during the meeting. Specifically, I believe that she was informed at this meeting that she was being relieved of her duties in the Post Office, where she was employed by Ms Lorraine Harris, and offered an alternative position as a cashier in the supermarket, owned by Ms Harris, instead. I find therefore that although she was informed that her employment in the post office was ending, this did not constitute the termination of her employment with the Respondent, which only finished when she reiterated her refusal to take the cashier role in the supermarket in a meeting on 30 November, having previously indicated in a text message to Ms Harris that she would not be taking the position.

In examining whether she was unfairly dismissed therefore, I must decide if it was reasonable for Ms Harris both to relieve the Complainant of her role in the post office and attempt to substitute it with the position of cashier in the supermarket, in line with sections 6 (4) (a) and 7 (a) of the Act cited above.

In making this decision, I noted firstly that Ms Higgins, the Post Office Manager, whose evidence I found to be particularly compelling, stated that the Complainant performed poorly in aspects of her role in the post office. This underperformance resulted in significant additional pressure and stress being caused to Ms Higgins, who provided extra training to the Complainant when she returned from maternity leave five months after the Complainant started, in addition to the training she had received when she commenced in the role. The absence of any visible improvement in the Complainant’s performance however resulted in Ms Higgins indicating to Ms Harris in November 2021 that she was resigning from her employment because she could no longer cope with the additional pressures and stresses caused to her by the Complainant’s underperformance, which she believed would only be exacerbated over the busy Christmas period.  This threat of resignation, which I found to be credible, led to a decision by Ms Harris to remove the Complainant from her role in the post office and offer her an alternative position as cashier in the supermarket, which she communicated in the meeting on 12 November 2021.

While Ms Dowling quite rightly asserted that there were no disciplinary procedures invoked against the Complainant in relation to her performance at any stage prior to the aforementioned meeting, I noted Ms Harris’s evidence of the resignation threat of Ms Higgins, the personal relationships she had with relations of the Complainant, the resultant difficulties that would have been caused by the instigation of such procedures, the fact that she had already received adequate training in the role and her view that the position in the supermarket would have represented a better fit because, unlike the machines in the post office, the till in the supermarket indicated how much change or cash to give to customers. In addition, I noted that the pay rate and the hours of work offered in respect of the cashier role were the same as the post office position.

I also noted that it was not unusual for a small number of staff who worked in the supermarket to fill in when required at the post office, which would suggest that the roles were interchangeable. In addition, it was not disputed that, at the meeting of 30 November, Ms Harris pleaded with the Complainant to at least try out the role of cashier in the supermarket, which I find suggested that she wanted to retain her in employment and did so as an alternative to instigating disciplinary procedures against her in relation to her underperformance in the post office role.

The Complainant also acknowledged in her evidence that there were some performance difficulties and that she had made mistakes, such as when she had refunded €100 to the post office that she had given to a customer in error. While I also recognise that the position of cashier was not the same position the Complainant was employed to do, and that the role represented a change in her terms and conditions of employment, there was no evidence presented by her to suggest that it was fundamentally or materially different.

Considering all the foregoing, I find that the Respondent acted reasonably, as set out section 7 (a) of the Act, in deciding to relieve the Complainant of her duties in the post office and consider it appropriate, as provided for in the legislation, to disregard the clear breaches of the procedures referred to in 7 (b) because of the Respondent’s decision to offer her the cashier role in the supermarket instead. Accordingly, I find that the Complainant was not unfairly dismissed.

CA-00048471-003

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states: 

(1)    An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. 

(2)    The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

(a) if the employee has been in the continuous service of his employer for less than two years, one week, 

(b) if the employee has been in the continuous service of his employer for two years or more but less than five years, two weeks 

c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, 

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, 

As I have found that the Complainant was not unfairly dismissed, she is not entitled to any notice payment.

CA-00048471-004:

The Complainant asserted that she was not paid for two weeks of her employment, namely from the week from 15 November to 20 November 2021 and for the week from 22 November to 27 November. On the basis of the evidence presented to me, I am satisfied that she was compensated for any underpayments both in the payment she received on 1 December 2021 in the amount of €502.85 which was shown in the payslip that she received and in the additional €1,100 which the Respondent lodged to her bank account which was not shown in the payslip. Accordingly, I find that this complaint is not well founded.

CA-00048471-001:

I find that this complaint is well founded as set out above. In making a decision on what compensation to award, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that the Respondent was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Deputy Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment within the required timeframes must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the within case, notwithstanding the reasons provided by the Respondent for the failure to provide the statement. I therefore award the Complainant compensation of four weeks’ remuneration, namely € 813.60.

CA-00048471-002:

I find that the Complainant was not unfairly dismissed for the reasons set out above.

CA-00048471-003:

This complaint is not well founded for the reasons set out above.

CA-00048471-004:

This complaint is not well founded for the reasons set out above.