CORRECTION ORDER

ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997

This Order corrects the original Decision Adj-00045820 issued on 19th of August 2024 and should be read in conjunction with that Decision.

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00045820

Parties:

	Complainant	Respondent
Parties	Georgina Coyne	Tesco Ireland Limited Tesco Ireland

	Complainant	Respondent
Parties	Georgina Coyne	Tesco Ireland Limited

Representatives

Jennifer Gibbons Concannon Solicitors/Anne Marie Giblin BL

Aisling McDevitt IBEC

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00056560-001	10/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00056560-002	10/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00056560-004	10/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00058485-001	24/08/2023

Date of Adjudication Hearing: 30/04/2024

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s). The hearing was held remotely over two days with first day of hearing held on 29th of February 2024. Witnesses gave sworn evidence.

Background:

Joyces Supermarkets in the first instance were acquired by TESCO, and subsequently the transfer of undertakings occurred to TESCO Ireland Limited.

The Claimant commenced employment with Joyces Supermarkets on 15th November 2000.

The Claimant’s employment transferred to the Respondent on 4th September 2022 via a transfer of undertakings. The Claimant resigned her employment on 5th May 2023. Prior to her resignation the Claimant was in receipt of an hourly rate of €16.99 and was contracted to work 25 hours per week.

The dispute and claims centres around an agreed work pattern agreed with the prior owner to assist the Complainant with her family commitments.

The Complainant held the role of manager on adjusted hours.

TESCO while accommodating different work patterns and does allow for agreed choices about working hours; could not accommodate the prior working pattern into the management shift pattern that operated at TESCO.

TESCO could accommodate the prior hours and honour the substantive terms based on a different role that in their view was very similar to what the Complainant did at Joyces Supermarket.

At Joyces the Complainant had personnel responsibilities that included direct responsibility for managing staff and approving hours of work and leave. It included performance management.

The role offered by TESCO it is alleged was an administrative role without any direct line management responsibility.

TESCO stated that there was no record of the agreement entered into between the Complainant and the prior owner as a new term and condition of employment. In fact, records did indicate a varied work pattern and that in their view provided for a change in hours that were reasonable.

Allowing for the ongoing difference between the Complainant and TESCO about her role and conditions and believing that she had exhausted all grievance channels the Complainant resigned. She also brings a claim for Unfair Dismissal.

TESCO stated that the Complainant who has extensive personnel experience did not exhaust the internal grievance procedures. All staff were inducted into TESCO and how to access HR Policies. In fact, the Complainant played a key role in documenting that Joyce’s Personnel Staff had in fact completed the required induction and had the relevant documentation about TESCO, the new HR policies and better terms on offer.

The Complainant stated that she never attended such induction and has several discussions with her Regional Manager, a very senior manager, without making any progress over several months. The terms on offer were not better as she had a contribution towards private health insurance. There is no issue about the substantive terms other than the role and the hours of work.

An issue arose after the Complainant left TESCO and how she mitigated her loss.

PRELIMINARY MATTER:

The Respondent submits that this claim is manifestly out of time. The claims under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 were lodged by the Claimant on the 10th of May 2023. The date of the transfer of undertakings was the 4th of September 2022. The date the claims were lodged is well outside the time limits set by the Workplace Relations Commission having been lodged some 8 months following the alleged breach.

The Complainant stated that her claim was presented in time as what is in contention relates to her right to work a specific shift pattern and be a manager. The Respondent has admitted in their own submission that in fact for a period of time the Complainant did work as a manager, that she would keep the tile for manager for 3 months, and it was only in April 2023 that a definitive position was taken that if she worked her existing pattern, she would not be a manager. In logic it must follow that it was only at the time of the breach of the condition would time run not at the time of transfer.

On transfer the Complainant was not informed that her role as Manager was not being recognised. That occurred much later. Based on the timeline detailed by the Respondent it cannot be sustained that time ran from the date of the transfer. The presumption must favour the Complainant that her role of manager was in fact recognised until she was informed otherwise. On that basis I find that time only began to run sometime in April 2023 and not from the date of transfer in September 2022. Therefore, I find the complaints are not statute barred.

Summary of Complainant’s Case:

The Complainant worked for Joyce’s for 22 years as a manager. A transfer took place pursuant to the 2003 regulations. At a point in April 2023 the Complainant was told that she could not retain her working hours and be a manager. That was fundamental breach of her contract terms.

The Complainant was offered a contract of employment with the Respondent in September 2022 that stated her working hours would be a minimum of 24 hours per week to cover a 3 over a 7-day week and that these hours would be scheduled locally to meet the needs of the store. The contract further stated that there would be a requirement to work at least 1 Sunday in 4 and at least 3 Public Holidays per annum.

The Complainant primarily worked a variation of the following pattern:

· Monday 9.30am -4.30pm

· Tuesday-Friday 9.30am to 2pm

· And occasionally the Complainant worked from 5.30pm to 10.00pm on a Wednesday.

On the 23rd of November 2022, at a meeting with Ms Rabbitte and Mr. Coughlan the senior manager responsible for the transfer, she informed TESCO that she would not accept their recent offer to her red circle her terms and conditions and for her to work in an administrative role.

On January 9th, 2023, the Complainant’s solicitor wrote to Mr. Coughlan to state that the new employer must observe the terms and conditions of the existing contract. The Complainant was not accepting an offer from Mr Coughlan that she would retain the title of manager for 3 months and if she was unable to carry out the work of a manager on the roster, she would be assigned the task of a customer service assistant during this 3-month period.

TESCO had written to the Complainant on the 23rd of November 2022 stating that:

Your working hours will be rostered for the next three months on the basis of morning shifts, Monday to Friday. In doing so you will retain the manager title for these three months but, as you will be unable to carry out the work of a manger on the roster, you will be assigned the tasks of a customer assistant during this period.

At the end of the three months we will meet with you again to review this matter further.

This proposal was made as TESCO had not been able to resolve the matter of the Complainant’s working pattern including start and finishing times.

Summary of Respondent’s Case:

For the avoidance of doubt, the Respondent was more than happy to retain the Claimant as a Manager, if this is the role she wished to be employed in and did so for a significant period post-transfer. However, the Claimant was seeking to retain this title on a fixed working pattern when no evidence could be found to support that it was formally agreed.

Unfortunately, that fixed shift pattern along with a management role could not be facilitated in a manager role.

However, to resolve matters, the Respondent did offer the Claimant an arrangement whereby she could have the fixed working pattern she was seeking, and retain her salary, but that it would not be possible to create a role whereby she did so whilst conducting the tasks of a manager. The Respondent reverted to the Claimant’s solicitor on 23rd January 2023, outlining their continued consultation with the Claimant, their plan to review matters further, and the steps taken in the interim to establish whether evidence of the fixed working pattern asserted by the Claimant could be found. This correspondence was also shared with the Claimant.

The Respondent wrote to the Claimant on 27th April 2023 confirming that it could not be established from the evidence available to the Respondent that the Claimant worked a fixed working pattern. However, to resolve matters, they were prepared to roster her on a fixed basis, including the requirement to work a late night when required. No change would be made to her financial terms and conditions of employment. However, she would be assigned tasks associated with a customer assistant. The Respondent notes that the Claimant already conducted some such tasks prior to the transfer of undertakings.

The Claimant resigned her employment on 5th May 2023 with immediate effect. The Respondent responded to the Claimant’s letter of resignation on 12th May 2023 notifying the claimant that the Respondent had a grievance procedure in place. The Respondent offered the Claimant an opportunity to avail of same but noted that, given her resignation with immediate effect, should she not revert by 17th May that the Respondent would “assume that she did not wish to initiate the grievance procedure contained in the policy and therefore will proceed with processing any outstanding monies that might be due”.

No response was received from the Claimant in advance of the 17th of May and the Claimant’s termination was therefore processed. The Claimant’s Solicitors wrote to the Respondent on 25th May 2023, confirming that a claim had been lodged to the WRC on 10th May for “constructive dismissal pursuant to the Transfer of Undertaking Regulations”.

No grievance was ever raised by the Claimant with regard to the matters pertaining to this case.

Findings and Conclusions:

There are two related Adjudication referrals ADJ 45820 Georgina Coyne -v- Tesco and ADJ 47384 Joyces Supermarket. In effect Joyces was acquired by TESCO and the transfer of undertakings subsequently took place.

The Complainant called a witness, a manager at Joyce’s who affirmed the working pattern now in issue worked by the Complainant and confirmed what her managerial role was which included staff and Human Resource/Personnel duties.

On the evidence of the TESCO senior manager responsible for the transfer it is not in dispute that the Complainant was a manager. What is in dispute was the degree of flexibility about working hours. The Complainant stating that the hours were substantially fixed with some flexibility, while TESCO could not find any record of what they perceived to be a very rigid term.

I note in Arthur Cox Yearbook 2019 the following case:

Terms of Employment Post Transfer

[1.171]

In Melcorpo Commercial Properties Unlimited Company v Egan, 201 the claimant appealed the decision of the Adjudication Officer and claimed that the respondent, her employer, breached reg 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 when her employment transferred from Diamond Cinema Ltd to Melcorpo Commercial Properties Unlimited Company. She asserted that her terms and conditions of employment ‘deteriorated’ after the transfer. Specifically, the claimant maintained that, following the transfer, her ‘duties and responsibilities had diminished; her hours of work increased, and she no longer had the flexibility to work from home’. The Court rejected the appeal and upheld the decision of the Adjudication Officer. Having examined the evidence of the parties, it was satisfied that the claimant’s ‘role continued and the duties and responsibilities she previously held were substantially the same after the transfer other than in a new improved business model’. In fact, the only ‘measurable change’ that took place concerned the fact that the claimant reported to a regional manager following the takeover, as did all other managers of cinemas in the other sites belonging to the respondent group. Although it appeared that this was a ‘major issue’ for the claimant, the Court did not accept that it was such as to breach the terms of reg 4 of the 2003 Regulations.

The question that arises in this case did the terms and conditions deteriorate to such an extent that the role was substantially different. The following facts were established during the hearing:

· The Complainant continued to work her previous shift pattern.

· The Complainant was assigned personnel related work like work at Joyce’s Supermarket, where she was involved in Personnel Administration. However, she was not assigned to the manager’s roster based on her requirement to work a particular pattern.

· The Complainant was not managing staff directly.

· The Complainant’s terms and conditions did transfer; however, after some months a choice was presented either to work the existing pattern on the same terms and conditions with a new title as customer assistant or move to a 3-day roster with different times and retain the manager title.

The question arises in this case was the change to her role substantial so that what in fact occurred was a deterioration in her terms and conditions?

It is settled law that post transfer terms may change for Economic, Technical or Organisational reasons. However, they cannot be changed if the reason is connected to the transfer. A company has the right to determine how it operates and organises its business. A very basic right is to decide how it will organise, manage, and shift rosters are an essential means of ensuring this. The change cannot be driven by the need to standardise terms, rather the need to run the business in an efficient way. That is the primary driver in this case.

The facts show that TESCO were attempting to resolve what they believed to be an unclear assertion that the Complainant’s hours of work were determined primarily to facilitate her family commitments and were not fixed.

The consultation period to resolve the matter continued over several months. The transfer occurred in September 2022 and a holding position was put in place commencing in November 2022 to run for 3 months so that the matter could be resolved.

The Respondent wrote to the Claimant on 27th April 2023 later than envisaged and confirming that it could not be established from the evidence available to the Respondent that the Claimant worked a fixed working pattern. However, to resolve matters, they were prepared to roster her on a fixed basis, including the requirement to work a late night when required. No change would be made to her financial terms and conditions of employment. However, she would be assigned tasks associated with a customer assistant. The Respondent notes that the Claimant already conducted some such tasks prior to the transfer of undertakings.

On balance and based on the evidence this was a change in her employment terms, the question that arises was it a substantial one? The loss of the title of Manager is a change; however, this change took place over several months after the transfer took place. The Complainant was holding onto an assumption that her role of manager and her shift pattern should continue as they were.

The question then arises can an employer make a change in a term of a contract for Economic, Technical and Organisational reasons after a transfer of undertaking. The answer must be yes subject to proper consultation procedures where a term is not unilaterally changed.

The next question in this case was that consultation process adhered to?

On the 27th of April 2023 TESCO state:

In light of what your rosters have shown, I can now confirm that we are prepared to continue to roster you on the basis of this pattern going forward, including the requirement to work a late night if and when this is required of you.

Should there be a need in the future to change this working pattern we will meet with you in the first instance to discuss this further.

In relation to your job role, we have previously advised you that a with fixed working pattern you would not be able to carry out the tasks associated with a manager role in Tesco. As such you will continue to be assigned the tasks of a customer assistant but will continue to retain your current rate of pay.

I have determined at this point that TESCO decided that the Complainant would not be a manager. That decision was made 7 months after the transfer and the question now arises based on the claims set out in the Complainant’s submission did the following breaches occur:

· The transferee did not ensure that her terms and conditions transferred from her previous employer?

· The transferee did not observe the terms and conditions transferred from her previous employer?

· The transferor did not ensure that the terms and conditions transferred to her new employer?

· Employee representation was not preserved or arranged by the new employer following the transfer of the business?

On the facts substantially the transferee did ensure that the Complainant’s terms and conditions transferred from her previous employer.

The transferee, however; after a time did not observe the term that the Complainant was a Manager; as her fixed roster was not aligned with the TESCO shift management roster.

This complaint is about the Transferee so the question about the Transferor is technically not correct; however, as stated previously, Joyces while a separate legal entity was controlled by TESCO Ireland Limited at the point of transfer. On the facts I find that the transferor did ensure that the terms and conditions transferred to her new employer.

This dispute arose around an assumption that the fixed worked pattern could not change. That is not a reasonable assumption. The terms and conditions that transferred can be changed by agreement and failing that by referring the matter for a recommendation through the Industrial Relations procedures. The change being sought related to an Organisational requirement. I find that TESCO substantially applied the terms and conditions; however, after a prolonged period of consultation technically breached one condition by appearing to act unilaterally. While it occurred in late April 2023 the reality is that the role of manager was only for a brief period recognised and in effect the Complainant did not carry out managerial work at TESCO. It would appear on the facts that TESCO were willing to be flexible about work and family commitments but could not accommodate the fixed pattern that the Complainant wanted.

The actions of TESCO have not been unreasonable and on balance the Complainant was considerably less flexible about finding a solution. It is not a reasonable assumption that her working pattern as a Manager would stay the same forever. TESCO spent a considerable amount of time attempting to find a solution. However, the parties could not agree on a way forward. The red circling to the Complainant’s substantive terms was fair and reasonable.

Concerning a breach of the Complainant’s right to representation there was very little evidence adduced about this matter as set out at regulation 7.

At regulation 10 the following may choices are open to the Adjudicator:

A decision of a rights commissioner under paragraph (4) shall do one or more of the following:

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

(b) require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or

(c) require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -

(i) in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,

(ii) in the case of a contravention of any other Regulation, not exceeding 2 years remuneration,

in respect of the employee's employment calculated in accordance with Regulations made under section 17 of the Unfair Dismissals Act 1977 ,

I have determined that in respect to one allegation a breach did occur and related to the title of manager not being recognised at a point. However, I have also qualified that finding by stating that it was a technical breach. Substantially I have determined that TESCO were reasonable about the process they followed, and that the Complainant did not engage meaningfully to find a solution. The fact is the fixed working pattern, and the role of manager are subject to change. Ultimately TESCO determined that she could not be a manager and hold onto that fixed shift pattern and that was not an unreasonable conclusion. However, they were willing to adopt a patten that was family flexible. That was not an option entertained by the Complainant.

The Complainant was on a weekly salary of €424.75. Allowing for the factual matrix of this case, I find that a technical breach did occur; however, the facts show that the Respondent was fair and attempted to reach a compromise. In these circumstances a modest award is justified. Based on an annual salary of €22,000 I award the Complainant €5,500 an amount that I determine to be to just and equitable having regard to all the circumstances of this case.

I have found that the Employer’s behaviour was substantially fair and reasonable and that a technical breach occurred concerning her title as manager. I cannot find in favour of the Complainant that she was unfairly dismissed. The case law is well settled that the conduct of the Respondent must be so unreasonable and that a fundamental contract breach occurred that fractured the employment relationship. I have not found that the Employer was in fact unreasonable and that they fractured the employment contract. A contract term can change, and it is reasonable that an employer can organise a shift roster that also works for the business. That change was sought over several months.

The process to reach a fair outcome went on for months. The final decision while not continuing a term of the employee’s contract included a red circling of terms and conditions and the fixed shift pattern that the employee wanted to work. It also included personnel duties that the Complainant carried out previously. While she could not be assigned to the TESCO shift managerial roster that was based on valid organisational requirements and how TESCO run their business. The Complainant was also aware of the grievance procedure and that the decision of the deciding manager could be appealed particularly based on her knowledge of personnel policies as a manager who had responsibility for personnel matters. I do not find that the Complainant was constructively dismissed.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The original complaint form is absent of detail concerning the following and I have drawn directly from the written submission to provide the relevant detail and assign the CA numbers in order of the complaints as detailed in the Complainant’s submission:

· CA-00056560-001: The transferee did not ensure that her terms and conditions transferred from her previous employer. I determine that this complaint is not well founded. On the evidence all terms including her tile of manager were recognised and transferred. While some ambiguity existed about her work pattern, she received the benefit of the doubt until that matter could be clarified.

· CA-00056560-002: The transferee did not observe the terms and conditions transferred from her previous employer. I determine this complaint to be well founded; although have qualified that it was a technical breach based on the entire factual matrix of the case before me. The Complainant was on a weekly salary of €424.75. Allowing for the factual matrix of this case, I find that a technical breach did occur; however, the facts show that the Respondent were fair and attempted to reach a compromise. In these circumstances a modest award is justified. Based on an annual salary of €22,000 I award the Complainant €5,500 (five thousand five hundred euro) an amount that I determine to be to be just and equitable having regard to all the circumstances of this case.

· The transferor did not ensure that the terms and conditions transferred to her new employer. This will be dealt with in another decision relating to Joyces Supermarkets.

· CA-00056560-004: Employee representation was not preserved or arranged by the new employer following the transfer of the business. As little evidence was adduced to support this claim and the case was not adequately made out, I find that the complaint is not well founded.

· CA-00058485-001 Unfair Dismissal: I find that the Complainant was not Unfairly Dismissed.

As I have found that the Employer’s behaviour was substantially fair and reasonable and that a technical breach occurred. I cannot find in favour of the Complainant that she was unfairly dismissed. The case law is well settled that the conduct of the Respondent must be so unreasonable and that a fundamental contract breach occurred that fractured the employment relationship. I have not found that the Employer was in fact unreasonable and that they fractured the employment contract. The Employer spent months attempting to craft a solution and in fact the conduct of the employee by holding on to a fixed view that a term can’t change when there is a valid business case is not reasonable. The employee was not being treated disrespectfully or unfairly. There was no evidence of any compromise on the part of the employee.

Dated: 19th of August 2024