Complainant

Respondent

Parties

Natalie  Kilduff

Woodies

Representatives

Fergus Dwyer, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048119-001

11/01/2022

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

CA-00048119-002

11/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00048119-003

11/01/2022

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

CA-00048746-001

17/02/2022

The Complainant commenced her employment with the Respondent on 23 January 2001. She stated that the Respondent deducted five days pay from her in July 2021 and that she was not notified of a change to her terms and conditions of employment following her move from the e-store where she worked in February 2021. She also alleged that that she did not receive either her statutory redundancy or her minimum notice entitlements.

Payment of Wages Act, 1991 – CA-00048119-001

The Complainant stated that five days’ pay were illegally deducted from her wages in respect of the period from 15 July 2021 - 20 July 2021

Terms of Employment (Information) Act 1994 – CA-00048119-002

The Complainant stated that she only worked from 9am until 5pm in the various roles in which she worked with the Respondent. She further asserted that she never worked evenings or at weekends and was not notified in writing of a change to her terms and conditions of employment, which stated that she would have to do so.

Complaint under the Redundancy Payments Acts, 1967 – 00048123-003

The Complainant stated that her position in the Respondent’s e-store was made redundant in February 2021. Further to this, the Respondent offered her the opportunity to transfer to the new e-store in Drogheda but she refused this because of the travel that would be involved. She also stated that she was not allowed back to the same role she previously worked in on the same terms and conditions because she was now required to work in the evenings and at weekends. She also stated that she had to apply for an Accounts Payable role which she asserts should have been offered to her without having to make an application for it.

Complaint under the Minimum Notice & Terms of Employment Act, 1973 – 00048746-001

The Complainant stated that she was entitled to receive her minimum notice entitlements further to the termination of her employment on 30 July 2021.

Payment of Wages Act, 1991 – CA-00048119-001

The Respondent stated that the Complainant was paid for all hours worked by her. During July 2021 the Complainant was subject to disciplinary proceedings that culminated in a disciplinary sanction of five days unpaid suspension being imposed. The period of unpaid suspension commenced on Thursday 15 July 2021 and ended Tuesday 20 July 2021. In consequence of the disciplinary sanction imposed, which is provided for in the Respondent’s Discipline Policy, the Complainant did not work her rostered hours for the days she was suspended and her wages were therefore not ‘properly payable’ to her as she had not worked the hours.

Terms of Employment (Information) Act 1994 – CA-00048119-002

The Respondent stated that the hours specified in the Complainant’s terms and conditions of employment remained unchanged throughout her employment with the Respondent and therefore any allegation in this regard was denied.

Complaint under the Redundancy Payments Acts, 1967 – 00048123-003

As the Complainant’s employment ended following her summary dismissal on the grounds of gross misconduct, due to insubordination and refusal to adhere to rostered working hours, the provisions of the Redundancy Payments Act 1967 do not apply.

Complaint under the Minimum Notice & Terms of Employment Act, 1973 – 00048746-001

The Respondent highlighted that Section 8 of the Minimum Notice and Terms of Employment Act, 1973 provides that, “Nothing in this Act shall affect the right of any employer or employee to terminate a contract without notice because of misconduct by the other party.” Accordingly, given that the Complainant was dismissed on the grounds of gross misconduct she was not entitled to notice.

CA-00048119-001:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

In respect of the instant case, I note that in July 2021 the Complainant was subject to disciplinary proceedings, further to which a disciplinary sanction of 5 days unpaid suspension was imposed. Given that the Complainant did not therefore work her rostered hours for this period, I find that no wages were properly payable to her for because she was suspended without pay, as provided for in the Respondent’s disciplinary policy.

CA-00048119-002:

The Terms of Employment (Information) Act 1994, section 5, states: 

Time Limits

Section 41(6) of the 2015 Act provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 41(8) of the 2015 Act provides:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Complainant stated that she was not notified of any changes to her terms and conditions of employment following the cessation of her role in the Respondent’s e-store in February 2021. I note however that the Complainant signed a contract of employment on 1 October 2020 which stated that she was required to work at evenings and weekends. While the Complainant stated that she had been informed by her line manager that she would not be required to work in line with the hours in her contract, it is clear from the contract that she had been been made aware in writing of of the requirement to work evenings and weekends, well in advance of the change being effective.

While I also note that the Complainant suggested that there had been a previous contract of employment in place prior to this which did not require her to work at evenings or the weekends and that she was not notified in writing of any changes to this contract of employment, this complaint was referred to the WRC on 11 January 2022 and I can only therefore consider contraventions of the Act that occurred in the six-month period from 12 July 2021 to 11 January 2022.

As there was no evidence of any contraventions in this period and the only statement of terms and conditions of employment in place during this period required her to work evenings and weekends, I find that this complaint is not well founded.

CA-00048119-003:

The Law

The circumstances in which an employee may claim a redundancy lump sum are set out at section 7 of the Redundancy Payments Act 1967 (amended) and can be summarised as follows:

(a)  The business has closed or the place where the business was carried out has changed;

(b)  There is a requirement for fewer employees in the business or at the place where the business was carried out;

(c)  The employer has decided that the work that that was done by the employee could be done by fewer or no employees;

(d)  The job will be done in future by a person who is more qualified or trained than the employee;

(e)  The job will be done by a person who is also capable of other work that the employee is not qualified or trained to do.

Findings:

This case is on all fours with that of the Complainant’s colleague Yvonne Devlin, who also:

(i)                  worked in the e-store,

(ii)                was offered a transfer to Drogheda when the e-store was transferred there and

(iii)               was offered the opportunity to remain in the Tallaght store and work in an alternative role.

The Labour Court found in the decision in Woodies DIY Limited v Yvonne Devlin (RPD 231), that “The Complainant was not made redundant. The role that she performed was re-located and she was offered the option to re-locate with that role or to take up another role in her existing location within the terms of her contract of employment … the issue of redundancy had never arisen in the circumstances of the case and the terms of the Acts are inapplicable”.

As the Complainant in the instant case was also given the opportunity to transfer to Drogheda and was offered an alternative role in the Tallaght store in line with the terms and conditions of the contract of employment she signed on 1 October 2020, I find that the question of a redundancy payment does not arise, and that this complaint is therefore misconceived.

CA-00048746-001:

The Respondent stated that the Complainant was not paid her entitlements under the Minimum Notice and Terms of Employment Act 1973 because she was dismissed on the grounds of gross misconduct. I noted however that the established jurisprudence in relation to dismissal law takes a very restricted view of what constitutes gross misconduct justifying dismissal without the payment of notice. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v BredinM160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC, 1996)) wherein the Tribunal states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

In the instant case, I find that the grounds on which the Respondent decided to dismiss the Complainant, namely “insubordination and refusal to work rostered shift on 20 July 2021” does not come within the category of “very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer”, described above by the Tribunal, given that the Complainant had refused to work her rostered shift on several occasions prior to 20 July 2021, and that she was allowed to continue working until 30 July 2021, the date of her dismissal. I further note that the Complainant’s contract of employment stated that the Respondent “reserves the right to terminate your contract without notice if it has reasonable grounds to believe that you have committed an act of gross misconduct or gross negligence” which also suggests that the non-payment of notice is reserved for one off acts of very serious misconduct as envisaged by the Tribunal above and not for repeated acts of insubordination, which pertained in this case.

Considering the foregoing, I find that this complaint is well founded, and that the Complainant should have been paid her notice entitlements on 27 August 2021 in her final payment from the Respondent. Given that her employment began on 23 January 2001, which meant that she had more than 15 years’ service on the date of the termination of her employment, she is entitled to a notice payment of eight weeks’ pay.

CA-00048119-001:

I find that this complaint is not well founded for the reasons set out above.

CA-00048119-002:

I find that this complaint is not well founded for the reasons set out above.

CA-00048119-003:

I do not allow this appeal for the reasons set out above.

CA-00048746-001:

I find that this complaint is well founded for the reasons set out above. I order the Respondent to pay €4,093.44 to the Complainant, namely eight weeks’ pay (€13.12*39*8), in respect of this complaint.