Complainant

Respondent

Parties

Jeanette  Joyce

Metron Stores Limited t/a Iceland (in liquidation)   

Representatives

Damien Keogh, Independent Workers Union

N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006

CA-00057213-002

19/06/2023

In June 2016, the Complainant commenced employment as a Retail Assistant in the Respondent’s Northside branch. On 22 March 2023, the Complainant moved to the Respondent's Coolock branch as she was offered more hours and worked approximately 28 hours per week, earning the minimum hourly wage of approximately €11.30.  

The Complainant submitted that in March 2023, issues surrounding pay began to arise. She submitted that she became a Shop Steward with the Independent Workers’ Union (the “IWU”) in April 2023. In this role, she organised industrial action “to regularise the wage situation”. The Complainant submitted that she was consequently penalised for performing the functions of an employee representative, in violation of the Employees (Provision of Information & Consultation) Act 2006. The Complainant is seeking compensation.

The Complainant provided written and oral submissions.

The Complainant submitted that she worked for the Respondent for seven years. She submitted that she worked as a Retail Assistant in the “Chill” section. She earned minimum wage and worked   approximately 28 hours per week.

The Complainant submitted that the problems started in March 2023 “when wages didn’t come through”. She further submitted that around this time, hours were cut and there was no air conditioning in the store. She submitted that the initial pay issues were addressed but that pay was withheld again in May 2023. The Complainant submitted that staff were also being threatened with being moved.

The Complainant submitted that she joined the Independent Workers’ Union (the “IWU”).  She submitted that she and her colleagues asked the IWU to represent them. The Complainant submitted that the Respondent had more than 100 employees and that each store had Shop Stewards. The Complainant submitted that both she and a colleague became IWU Shop Stewards for the Respondent’s Coolock branch at the end of April 2023, following a secret ballot. She submitted that she and her colleague worked with a number of younger staff who turned to them for help. She and her colleague also spoke out on their behalf.

The Complainant submitted that in her role as Shop Stewart, she met with the IWU and discussed balloting and strike action. She relayed the information back to her colleagues. She submitted that the IWU sent letters to the Respondent, but it did not engage. She also submitted that they reached out to Mr. Naeem Maniar, the Respondent’s CEO, to sit down with them and try to resolve issues. The Complainant submitted that as there was no progress, the IWU served the mandatory strike notice on the Respondent.

The CEO’s Interactions with the Complainant:

The Complainant submitted that Mr. Maniar called to the store on 18 May 2023. The Complainant submitted that Mr. Maniar spoke to her and another colleague for about three hours. She submitted that initially, he told them about his experience with the store when he was younger. The Complainant submitted that she told Mr. Maniar that a number of employees were not getting paid and that that they also needed working air conditioning. She submitted that Mr. Maniar indicated that he would resolve things. She submitted that Mr. Maniar provided her with a copy of the year’s electricity bills for the Respondent’s Coolock branch as well as the Respondent’s Directors Report and Financial Statements for the year up to March 2022. She submitted that Mr. Maniar told her that he had put €1.5 million “from his own pocket”, into the business. The Complainant submitted that Mr. Maniar asked her to call the strike off. She submitted that he could see that he was not getting anywhere. The Complainant submitted that Mr. Maniar stated that he felt that he was being slandered. He told the Complainant that he would sue the IWU and that if they did not pay, he would sue the Complainant. She submitted that Mr. Maniar told her that if she could not pay up, he would “come after [her] property.”

The Complainant submitted that after the meeting on 18 May 2023, Mr. Maniar sent her a number of WhatsApp messages that evening, night and the following morning. The Complainant provided a copy of those same WhatsApp messages. Initially Mr. Maniar stated “it was good to talk to you”. As the night progressed, Mr Maniar’s later messages stated that the strike action was “a weapon – that can be used – to bully [his] children”. Mr. Maniar then stated that the “IWU- have [sic] circulated attacks and false propaganda – with the sole aim of recruiting members – and collect money for their personal use […] I am being used as a football to kick around – for certain people in the IWU – for their own personal agenda […] you have young children like me – I will leave it with you and on your conscience – to do right by me”.  

On the morning of the 19 May 2023, the Complainant submitted that she messaged Mr. Maniar and told him that throughout the night, she had been with her father who was terminally ill. The Complainant submitted that she asked Mr. Maniar to stop attacking her personally for the IWU member’s decision to strike. Mr. Maniar replied and apologised, stating that he “was angry – that the IWU are playing dirty – and deliberately seeking to attack [him] in a personal capacity”. The Complainant responded and asked Mr. Maniar to meet with her and the IWU. In response, Mr. Maniar stated, inter alia, “You would be aware of social media bullying – naming me personally exposes – my family and children – to being bullied – and this is not something that I would ever imagine you being involved in”.

The Complainant submitted that approximately one week later, Mr. Maniar called her. He told her that she should consider taking unpaid leave to look after her father and let the government pay her while she was off work. She submitted that he told her that she could return to her job at a later stage. The Complainant submitted that she declined this suggestion. She submitted that the conversation lasted two to three minutes.

The High Court Plenary Summons:

The Complainant submitted that the strike action went ahead in the Respondent’s Coolock branch on 19 May 2023.

The Complainant submitted that on 23 May 2023, as she was about to take her break at 11am, a man and a woman came into the Coolock branch and served her with a High Court Plenary Summons. The Complainant provided a copy of the same.  The Complainant submitted that the same Summons indicated inter alia that the Respondent sought “aggravated and / or exemplary damages” for unlawful industrial strike action at the Coolock branch. The Complainant submitted that the Summons also sought an injunction to prevent further industrial action. Finally, the Complainant submitted that the Summons specifically named her, alongside two IWU representatives, as well as the IWU.

The Complainant submitted that she heard nothing further regarding the Summons.

Withholding of Pay:

The Complainant submitted that she and her colleagues did not receive their pay on 26 May 2023 and so she contacted Payroll. The Complainant submitted that her outstanding net pay amounted to €265.45.  The Complainant submitted that she was then informed, in a series of emails from a Payroll representative, dated 27 and 28 May 2023, that she had been paid; that she should contact her bank; and that she needed to confirm that her bank details had not changed.

The Complainant then submitted that in an email timed 21.12 on 27 May 2023, the Payroll representative informed her, inter alia, “I understand that there are false rumours and lies being spread about the company, by third parties, who have an ulterior motive, to harm the business. […] As a colleague, I appreciate your effort, in clearing up false information being spread by third parties.” The Payroll representative then continued to email the Complainant on 28 and 29 May 2023, indicating that she had been paid.

The Complainant submitted that in an email dated 29 May 2023, Payroll informed her inter alia “you have continuously tried to manipulate the situation – and you are now seeking to create a false narrative. On a personal note, I suggest that if you are unhappy working with Iceland in Coolock, - then please go and find another job. I have a young family to feed. Your lies and deliberate manipulative action are only seeking to harm my job and the rest of your colleagues.  If we are such a bad place, then why do you turn up for work? There is no shortage of jobs out there. Please no lies, no more manipulation, no more false narrative.”

The Complainant submitted that she responded and indicated “I am ceasing contact with you and seeking legal advice asap on this matter.”

The Complainant submitted that she was not certain that the payroll emails were being sent by the named Payroll representative. She submitted that they could have come from another person in the Respondent company.

The Complainant submitted that she was finally paid the outstanding pay amount some two to three weeks later.

The Grievance Procedure:

The Complainant submitted that, in accordance with the Respondent’s Employee Handbook, she emailed her grievance to her Store Manager. The Complainant submitted that she used the email address that had been set up by Mr. Maniar when he took over the Respondent company. The Complainant provided a copy of the same grievance dated 2 June 2023. The Complainant submitted that in her grievance, she stated inter alia “I believe I was subject to harassment and bullying by a senior company official as well as been slandered by a payroll employee. I believe I was penalized on the grounds of my trade union affiliation.”

The Complainant submitted that she received no acknowledgement or response.

The Complainant submitted that she also contacted the Area Manager by text and that she “told him about the text messages, and emails and grievance”. The Complainant submitted that she asked the Area Manager to meet with her, but he never responded. She also called him but there was no answer. The Complainant submitted that at all times, she was prepared to negotiate.

The Complainant submitted that at that stage, there was “chatter through the stores” that Iceland was closing.

The Impact of these Events:

The Complainant submitted that she was the only employee treated in this manner. She submitted that she was the only employee served with a High Court Plenary Summons, even though 10-12 of her colleagues in the Respondent’s Coolock branch had voted for strike action.

The Complainant submitted that it was “unbearable” after the strike action. She submitted that employees were being moved. She submitted that she felt that she was “under the microscope” and she felt “on edge”.

The Complainant submitted that she has a mortgage and two young children. She submitted that “panic set in, in case she was sacked for no reason”. The Complainant submitted that her last day of employment was on 20 June 2023, when she was told that the store was closed.

There was no attendance by or on behalf of the Respondent.

On 19 December 2023, during the Case Management Conference, the Respondent’s correct name was confirmed and it is reflected in this Decision.

In a letter from the WRC dated 17 April 2024, the Respondent was informed of the details of the Hearing to take place on 11 June 2024. The same letter also set out the procedure regarding postponement requests.

On 11 June 2024, JW Accountants emailed the WRC. They confirmed that Mr. Joseph Walsh was appointed Liquidator of the Company (the “Liquidator”) on 7 September 2023, by Order of Mr. Justice Quinn of the High Court. They further confirmed that as this complaint relates to matters which predate the Liquidator’s appointment, he is not familiar with the background to the complaint and therefore will not be in a position to assist in the Hearing.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and has decided not to attend.

The Law:

The Employees (Provision of Information & Consultation) Act 2006 (the “Act”) implements Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002. The Act outlines arrangements for informing and consulting employees in undertakings. It also safeguards employees' rights in the event of transfers of undertakings, businesses or parts of undertakings. Finally, the Act also prohibits the penalisation of employee representatives performing their functions in accordance with the Act.

Pursuant to section 3, the Act applies to all undertakings with 50 employees or more. Under section 7, the process to establish information and negotiation arrangements must be triggered by a written request to management by ten percent of the employees (subject to a minimum of 15 employees and a maximum of 100). Under section 6, employees who are members of a trade union that represents ten percent or more of the employees, may appoint employee representatives for the purposes of the Act.

Section 6 defines an employee representative for the purposes of the Act. Section 13 provides that an employer should not penalise representatives for performing their functions under the Act.

Employee Representative Criteria:

Section 6 provides:

“(1) In this Act, “employees’ representative” means an employee elected or appointed for the purposes of this Act.

(2) Subject to subsections (3) and (4), the employer shall arrange for the election or appointment of one or more than one employees’ representative under this section.

(3) Without prejudice to section 11, where it is the practice of the employer to conduct collective bargaining negotiations with a trade union or excepted body, employees who are members of a trade union or excepted body that represents 10 per cent or more of the employees in the undertaking shall be entitled to elect or appoint from amongst their members one or more than one employees’ representative for the purposes of this Act.

(4) The number of employees’ representatives (if any) elected or appointed under subsection (3) shall be determined on a pro rata basis by reference to the number of other employees’ representatives (if any) elected or appointed under this section.

(5) Where a dispute arises under this section, it may be referred by the employer, trade union, excepted body or one or more than one employee to the Labour Court for determination in accordance with the procedures set out in subsections (6), (7), (9) and (10) of section 15.”

Protection of Employees’ Representatives:

Section 13 of the Act provides:

“Protection of employees' representatives

(1) An employer shall not penalise the employees' representative for performing his or her functions in accordance with this Act.

(2) For the purposes of this section, an employees' representative is penalised if he or she—

(a) is dismissed or suffers any unfavourable change to his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.

[…]

(6) Schedule 3 has effect in relation to an alleged contravention of subsection (1).”

Schedule 3 of the Act provides that in the event of a complaint being declared well founded, an award of compensation, as is just and equitable having regard to all the circumstances, of up to two years’ remuneration may be awarded.

Findings and Conclusion:

The Act Applies:

The Complainant submitted that the Respondent had more than 100 employees. She submitted that after problems began to arise at work in March 2023, she joined the Independent Workers’ Union (the “IWU”) and that she and her colleagues asked the IWU to represent them.

The Complainant submitted that she became a Shop Steward at the end of April 2023, following a secret ballot. She submitted that in this role, she met with the IWU and discussed balloting and strike actions. She relayed the information back to her colleagues. She submitted that the IWU sent letters to the Respondent, but it did not engage. She also submitted that the IWU reached out to Mr. Naeem Maniar, the Respondent’s CEO, but as there was no progress, the IWU served the mandatory strike notice on the Respondent.

The Complainant was credible in her uncontested evidence. She provided considerable detail including dates, names and locations. In the circumstances, I am satisfied on the basis of the Complainant’s evidence that the Act applies here for the following reasons:

·            Pursuant to section 3, the Respondent had more than 100 employees, and so it is an undertaking with 50 employees or more.

·            Pursuant to section 7, the process to establish information and negotiation arrangements appears to have been triggered by the correspondence from the IWU to the Respondent. 

·            Pursuant to section 6, the Complainant was elected a Shop Stewart following a secret ballot and so she meets the criteria of an “employee representative”.

Penalisation Occurred:

Section 13 provides that an employer should not penalise employee representatives for performing their functions under the Act. Penalisation occurs if an employee representative “suffers any unfavourable change to his or her conditions of employment or any unfair treatment (including selection for redundancy), or […] is the subject of any other action prejudicial to his or her employment.”

In short, the Complainant submitted that she was penalised in the following ways:

1.              Mr. Maniar, the Respondent’s CEO, pressurised her verbally and in writing and later suggested she take unpaid leave;

2.              The Respondent named her personally in, and served her with, a High Court Plenary Summons;

3.              The Respondent withheld her pay; and

4.              The Respondent refused to engage with the grievance process.

1.              The CEO’s Interactions with the Complainant:

The Complainant submitted that on 18 May 2023, she met with Mr. Maniar, the Respondent’s CEO, in her capacity as Shop Steward. She raised a number of issues concerning pay and working conditions, vis-à-vis the air conditioning. He discussed, inter alia, the Respondent’s financial affairs and the imminent planned strike action. He asked her to call the strike off. The Complainant submitted that when he saw that he was not getting anywhere, he told her that he would sue the IWU and her personally, if the IWU could not pay. She submitted that Mr. Maniar told her that if she could not pay up, he would “come after [her] property.”

That evening, night and the following morning, Mr. Maniar sent her a series of WhatsApp messages, which became increasingly irate. In those messages, the CEO accused the IWU of using the strike action as a “weapon” and of engaging in “attacks and false propaganda” and “dirty tactics”.

The Complainant submitted that one week later, Mr. Maniar called her and suggested that she take unpaid leave from her employment to look after her father and “to let the government pay her”. The Complainant submitted that she refused.

The Complainant provided a full copy of the WhatsApp messages. On my reading of the same, it is clear that the messages are intended to pressurise the Complainant and penalise her for her work as Shop Steward. The Complainant’s responses were composed and professional. Moreover, she continued to seek to engage with Mr. Maniar as the Respondent’s CEO, asking him to meet with the IWU. I note that during the period of these messages, the Complainant was caring for her terminally ill father throughout the night.

2.              The High Court Plenary Summons:

The Complainant submitted that on 23 May 2023, the Complainant was served with a High Court Plenary Summons at work. The Complainant, two IWU representatives and the IWU were named in the same Summons, which outlines, inter alia, that the Respondent sought damages for “unlawful industrial action”.

The Complainant provided a copy of the Summons. I note that it purports to bear the signature of the Respondent’s In-house Solicitor. It is clear that this Summons was intended to pressurise the Complainant by legal means and penalise her for her work as Shop Steward. I note that at the time she received the High Court Summons, the Complainant was earning minimum wage, in a part-time role.

3.              Withholding Pay:

The Complainant submitted that on 26 May 2023, she did not receive her pay of €265.45.  She then engaged in a number of emails with Payroll from 26 May to 29 May 2023 inclusive. The Payroll representative was adamant that the Complainant had received her pay and in a series of escalating emails accused the Complainant of, inter alia, “manipulation”, creating a “false narrative” and harming her colleagues’ jobs. 

The Complainant provided a full copy of the emails. On my reading of the same, it is clear that the messages are intended to pressurise the Complainant financially and penalise her for her work as Shop Steward. The Complainant’s responses were composed and professional. The Complainant was simply seeking her pay for the hours that she had worked. The Respondent clearly gave her the run around and sought to withhold her pay. The Complainant submitted that she received this pay some 2-3 weeks later.

4.              The Grievance Procedure:

The Complainant submitted that she invoked the Grievance Procedure, in line with the Respondent’s Employee Handbook. The Complainant provided a copy of the grievance dated 2 June 2023 in which she outlined her belief that she was being penalised “on the grounds of [her] trade union affiliation”. The Complainant she received no response.

Conclusion:

The Complainant was credible in her uncontested evidence. She provided considerable detail including dates, names and locations. She also provided a significant amount of corroborating evidence by way of the WhatsApp messages with Mr. Maniar, the Respondent’s CEO; the High Court Plenary Summons; the emails with the Respondent’s Payroll Representative; and her grievance. I am satisfied that the Complainant has established facts which demonstrate that she was penalised – in that she was subjected to unfair treatment and actions prejudicial to her employment – for performing her duties in accordance with the Act.

In conclusion, I find the complaint well founded. I order the Respondent to pay the Complainant compensation of €8,300 (approximately six months’ pay) for contravening the Act. This is just and equitable having regard to all the circumstances. 

For the reasons outlined above, I find the complaint well founded. I order the Respondent to pay the Complainant compensation of €8,300 for contravening the Act.

The Employees (Provision of Information & Consultation) Act 2006, Penalisation.