Complainant

Respondent

Parties

Amanda  Clarke Butler

Dehac Retail t/a Costcutter Rathfarnham

Representatives

Self-represented

 Damien Johnston

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00061060-001

17/01/2024

The Complainant submits that she is being penalised by the Respondent for not accepting cash payments and for reporting this to payroll and the Revenue Commissioners.

The Respondent disputes the complaint.

The Complainant submits that she is being penalised for refusing to take cash payments in September 2023.

The Complainant submits that from the time she started working for the Respondent, everything she did was for the good of the company.  Waste was a big issue and she reduced it by half.  Previously the deli had never passed a health inspection, but it has never failed since she took over.  She worked hard to get better prices from suppliers and went from buying in prepared products to preparing them herself to reduce costs.

The Complainant submits that her working situation, which was very positive at the beginning, has deteriorated since the Store Manager joined in June 2023.  Mr Johnston is now implying that she is not doing her job.  Along with her colleague in the deli, the Complainant is now expected to do the work of 4 people as the deli is left short-staffed because Mr Johnston says that he cannot afford to pay any more staff.  The Complainant contends that she and her colleague do more work with less resources than the weekend staff.

The Complainant submits that on 22 September 2023 she was paid €350 through the payroll and €195 in her bank account from a separate account.  She phoned the Store Manager early that morning.  The Store Manager said that Mr Johnston was there and that she would speak to him.  When she did not hear back, the Complainant texted the Store Manager who replied that Mr Johnston would ring her.  Mr Johnston texted her at 2.06pm to say that he would “buzz her in a few”.  Mr Johnston texted her at 9.52pm to say that he would call her in the morning.

The Complainant did not hear from Mr Johnston the next morning, so she rang him a few times, but he did not respond.  The Complainant got a text from Mr Johnston at 3.10pm to say that he would call her in 20 minutes. He called her late in the afternoon.

Mr Johnston told her that he had spoken to her about this and that she knew it was happening.  The Complainant told Mr Johnston that he had never spoken to about the matter – she hadn’t spoken to him in weeks.  Mr Johnston then said that he had spoken to her sister, who also works for the Respondent, about the matter and that she should have told the Complainant.  She replied that her name was Mandy not [her sister’s name].

The Complainant also contacted the external payroll service on the morning of 22 September 2023 to say that she had received two payments but only a payslip for one.

The Complainant submits that Mr Johnston told her that he had to pay her partially in cash because it was costing him too much.  The Complainant told him that she did not agree to this as it was of no benefit as she does not claim social welfare.  She also said that it was of no benefit to her pension or if she needed to take sick leave.

She returned the payment of €195 to the Respondent.  She asked Mr Johnston to ensure that the balance of her wages was correctly put through payroll and that a new payslip was issued to her.  It was a couple of weeks before the matter was sorted. The Complainant submits that the Respondent was using her tax credits to make up her wages.

The Complainant and her sister, who also works for the Respondent, met with Mr Johnston on 27 September 2023.  They informed him that they did not agree with the way he had paid them as it was of no benefit to them and should be reported. Mr Johnston again said that he needed to do it that way as it was costing him too much. 

The Complainant told Mr Johnston that he could not change an employee’s pay pattern without their consent, and she was not agreeing to it.  Mr Johnston replied that he could not force her to accept the change but that there would be consequences.

The Complainant submits that she contacted the Revenue Commissioners (Revenue) about the matter.  When she told Mr Johnston, he said that was ok.

Since the meeting it has been one thing or another.  Mr Johnston and the Store Manager try to find fault with her work.  The Store Manager doesn’t even take her coat off in the morning before she comes over to the deli trying to find fault.

The Complainant submits that she has been demoted without being told.  She is no longer the deli manager.  The staff have been informed of this and told that they are no longer to deal with her but that everything has to go through the Store Manager.  The Store Manager has told staff not to contact the Complainant if they are sick or want anything. Instead, they are to deal with the Store Manager. The Complainant submits that she has to pass everything by the Store Manager and that the Store Manager hassles her about waste.  The Complainant submits that the Store Manager doesn’t listen to anything the Complainant says to her.

The Complainant submits that the Respondent, his wife and the Store Manager have all told staff that she is no longer their manager, the Store Manager is.  The Complainant submits that she no longer deals with anything to do with managing the deli.  The Complainant submits that she no longer interviews or hires staff.  She does not get calls from staff if they are sick or need anything.  She does not deal with suppliers or reps.  The Complainant contends that the Store Manager likes to tell her that she is no longer the manager of the deli – the Store Manager is.

In response to a direct question from Ms Johnston, the Complainant accepted that her colleague on the deli usually does the ordering and both of them talk to reps.

The Complainant submits that she is now experiencing difficulties with her annual leave which never happened in the past.  From the time she commenced her employment with the Respondent, she had an agreement with Mr Johnston that she would get two weeks off over Christmas. She had always used holidays to do this as she was also owed so much time that she could not use it all.

When she returned from annual leave in 2024, she was called into a meeting with Mr Johnston and the Store Manager.  Mr Johnston asked her about her holidays and why she was not back in work on 2 January 2024.  The Complainant replied that she was on leave.  Mr Johnston said that they didn’t know that she was off.  The Complainant replied that she was off every year and that he was aware of this as the arrangement was made with him.  The Complainant asked why it was an issue now.  Mr Johnston replied that he was just trying to work it out. 

Mr Johnston asked if she knew that the holidays should be put on the board.  The Complainant replied that they were on the board.  Mr Johnston asked who she had applied to for the holidays.  The Complainant replied that she had applied to her sister who also works for the Respondent company.  Mr Johnston rolled his eyes.  The Complainant asked why he had done that as her sister was the manager.  She repeatedly asked why it was an issue now to which Mr Johnston would not reply.

The Complainant said that Mr Johnston was going around on 5 December 2023 asking the staff about their holiday hours and asking them if they could take them over the next few weeks.  He did not tell her that she had four days left.  She assumes that was because he knew that she would be using them over Christmas. 

The Complainant says that she was forwarded a WhatsApp message from Mr Johnston about annual leave which he had put up on the group chat.  She did not see the message because she had taken herself off the group chat.  She messaged Mr Johnston to say that her holidays would all be used up when she was off over Christmas.  She did not receive a response to her message.  The Complainant took her four days of outstanding leave on 2, 3, 4 and 5 January 2024.

At the adjudication hearing, the Complainant said that she still does not know if she has lost the four days of leave she took over the Christmas because the Store Manager told her that they were being taken from this year’s allocation and not 2023.

The Complainant said that she made a complaint about the Store Manager on 19 February 2024, but it has not been dealt with.  The Complainant further submits that she has been subjected to an appraisal process for the first time ever. 

The Complainant submits that she feels that Mr Johnston, his wife and the Store Manager would like her to be gone.  She feels that she is being managed out.

Mr Johnston submits that he had paid the Complainant in cash since 2020 and he did not mind that she contacted the Revenue Commissioners. 

In relation to the Complainant’s appraisals, Mr Johnston said that he had had personal performance management discussions with the Complainant in the past. 

Mr Johnston said that he had not removed any duties from the Complainant.  The Complainant still talks to reps.

Mr Johnston said that that the deli is appropriately staffed – the Complainant and a colleague open up, another employee joins them at 10am and a fourth employee starts working at 12. Mr Johnston said that the wage percentages are through the roof, and he made a business decision with regard to the staffing of the deli.

Elaine Johnston gave evidence under oath.  She asserted that she never said that the Complainant did not manage the deli.  Ms Johnston said that the Complainant manages all deli staff.  Staff who are absent are required to contact the Complainant and the Store Manager.

Mr Johnston submits that since the Store Manager started in June 2023, the Complainant and another staff member have issues with her.

Preliminary Issue

The Complainant’s complaint referral form was received by the WRC on 17 January 2024.  Both parties have presented evidence in relation to events which occurred after that date.  It is clear from the statutory provisions that govern the referral of a complaint under section 41 of the Workplace Relations Act 2015, as amended (the Act), that the time limit runs for a period of six months (or twelve months on extension) from the date of acts which are alleged to constitute discrimination or victimisation. This provision has been interpreted by the Labour Court to mean that “any incidents which occurred after the complaint had been presented could not have been comprehended by the claim and therefore cannot be relied upon for the purpose of obtaining redress” (EDA1830 HSE v Patricia Cullen Killoran).

In accordance with section 41 of the Act, my jurisdiction in relation to this complaint does not, therefore, extend beyond the date on which the complaint referral form was received by the WRC.  Accordingly, I have confined my investigation to events which occurred prior to the receipt date of the complaint referral form.  Any alleged incidents of penalisation which occurred after 17 January 2024 are not covered by this decision.

Protected Disclosure

The Protected Disclosures Act 2014, as amended (the Act) defines a protected disclosure as follows:

“5(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in a work-related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.”

The first matter for me to investigate is if the Complainant made a protected disclosure in accordance with the Act.  For an action to be defined as a protected disclosure, an employee must have a reasonable belief that an offence has been, is being or is likely to be committed; the matter must have come to the employee’s knowledge during the course of their work; and the employee must report the matter to a prescribed person which may include their employer.

On 22 September 2023, the Complainant was paid part of her wages in a tax compliant manner with the remainder paid in cash.  The Complainant knew that this was wrong and that all of her earnings should have been processed in accordance with the tax code.  She reported the matter to her employer and insisted that her wages be processed properly. 

I will now apply the test for a protected disclosure to the Complainant’s actions.  The Complainant is of the view that, during the course of her work, she became aware that an offence had been committed when she received her wages on 22 September 2023, and she saw that her employer had not paid taxes on a portion of her earnings.  The Complainant reported the matter to her employer. 

It is clear from the above that the Complainant has met the necessary criteria to establish that she has made a protected disclosure in accordance with the Act.

Penalisation

I must now decide if the Complainant was penalised for making a protected disclosure.

Under section 12 of the Act, an employer is prohibited from penalising or threatening to penalise an employee for making a protected disclosure:

“12(1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”

Section 3 of the Act provides the following definition of penalisation:

““penalisation” means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of a promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker's reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;”

In order to prove penalisation as a result of having made a protected disclosure, a complainant must show a link between the protected disclosure and the alleged penalisation.  This is known as the “but for” test which was set out by the Labour Court in O’Neill v Toni and Guy Blackrock LimitedE.L.R. 21:

“… in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

The Complainant alleges that, in the period covered by this complaint, the Respondent has penalised her by (i) failing to prevent the Store Manager micro-managing her; (ii) demoting her from her previous management role; (iii) leaving the deli short-staffed so that her workload increased; and (iv) questioning her entitlement to her long-standing Christmas holiday arrangements.

In her own direct evidence, the Complainant said that, prior to the appointment of the new Store Manager in June 2023, into a role which had previously been occupied by the Complainant’s sister, she had a good working relationship with Mr Johnston.  However, following the appointment of the new Store Manager, she experienced a deterioration in her work situation.  I also note the Complainant’s evidence that when she spoke to Mr Johnston on 23 September 2023 to express her objection to the way her wages had been paid, she disputed that he had informed her previously about the change because they had not spoken for weeks.  It would appear to me that the relationship between the Complainant and both Mr Johnston and the Store Manager was already under strain prior to her protected disclosure.  While I accept that the protected disclosure might have accelerated the deterioration, I cannot accept that it was the sole cause of it.

Similarly, while I accept that there was some reduction in the Complainant’s management role as she no longer involved in the recruitment of staff for the deli, I am of the view that this cannot be attributed entirely to her protected disclosure but more likely had its origins in the recruitment of the new Store Manager.

In relation to the staffing of the deli, the Complainant provided copies of rosters from 2021, 2022 and early 2023 which showed a staffing level of five.  However, in a roster from 19 May 2023 this had reduced to four and by 4 January 2024, it had reduced to three. 

Mr Johnston disputed the Complainant’s interpretation of the rosters and said that the deli was adequately staffed to cope with the level of business.  He asserted that he made changes to the staffing levels to reduce the wage percentages.

It is not apparent to me that the reduction in staffing in the deli, which according to the Complainant’s evidence, started before she made her protect disclosure occurred solely as a response to the protected disclosure.

The Complainant’s assertion that she had a long-standing arrangement with Mr Johnston that she could take two week’s leave over the Christmas period, some of which was carried over from the previous year, was not disputed by Mr Johnston. The Complainant has never received clarification if the disputed leave comes out of her 2023 or 2024 leave allocation.  Mr Johnston was unable to clarify the matter at the adjudication hearing.

The Complainant’s Christmas leave only became an issue in January 2024 after she made her protected disclosure.  I am of the view, therefore, that the Complainant was penalised when she was questioned about taking leave after Christmas in early 2024 and that she has satisfied the “but for” test as articulated by the Labour Court in Toni and Guy.

Accordingly, I find that this complaint is, in part, well founded.

I declare that this complaint is, in part, well founded, and I direct the Respondent to pay the Complainant redress of €5,000.

Penalisation as a result of making a protected disclosure