Anonymised Parties

A Manager of a Convenience Store

A Convenience Store

Representatives

Self-represented 

Did not attend the hearing

Act

Complaint 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-00060881-001

08/01/2024

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

CA-00060881-002

08/01/2024

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

CA-00061062-001

17/01/2024

The respondent is a limited company, trading as convenience store under the name of an established retail group.  The complainant started working in the store in 2013.  At the hearing, she provided a copy of the contract of employment she received on May 8th 2013 which was stated to be a fixed-term contract for six months.  Her employment continued however, and, in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, she transferred to the respondent in 2016, by which time she was in the role of store manager. 

Before her wages were reduced in January 2024, the complainant earned around €760 gross per week.  She said that her net pay was €600.  She was a key-holder and, until January 2024, she worked from Monday to Friday from 6.00am until 2.00pm.  The store closes at 10.00pm daily.

Of the 23 staff members who work in the store, some have very long service and they are supported by other, mostly part-time employees.  The complainant was responsible for managing the staff and for ordering stock, maintaining equipment, paying bills, submitting weekly hours to payroll and dealing with correspondence.  She said that she managed the store throughout the Covid-19 pandemic, when it was difficult for staff to come to work.  Between 2016 and 2021, she said that the shop traded very well and turnover increased significantly.  By 2021 however, she said that things started to go downhill when stock wasn’t paid for, suppliers stopped deliveries, and the Lottery and Payzone services were cancelled.  She said that the directors didn’t visit the shop for months and she was left to manage the store and deal with staff and general day-to-day issues without support. 

Chronology Leading to these Complaints

At the hearing, the complainant said that when a long-serving employee left, she was getting calls from staff after she had finished for the day, asking her to solve problems, or to deal with some employee-related matter.  She got calls at weekends and when she was on holidays and she said that she felt that she was never off work.   By December 2022, this had been going on for over a year.  The company has two directors, who I will refer to as “Mr D” and “Ms D” and the complainant said that she asked Mr D to recruit someone as an assistant manager or a supervisor, who would work some evenings and weekends, and take the pressure off her. 

In March 2023, the respondent had a shop that was closing down and the complainant said that he selected one of his employees from that shop to move to her store.  While the other business was winding down, the selected employee, who I will refer to as “Ms E,” came over to the complainant’s shop and got to know the complainant and the running of her store.  Ms E informed the complainant that Mr D told her that she would be the manager.  At a meeting on March 27th, the complainant said that she asked Mr D what Ms E’s role was and he said that the shop wasn’t being managed when the complainant wasn’t there and that he didn’t give people labels.  The complainant said that, as she was speaking to Mr D, Ms E arrived and asked if she was the boss.  She said that Mr D replied, “you can work it out between you.”  

On Thursday, May 11th, the other director, Ms D, came to the store with Ms E and told the complainant that Ms E would be the store manager and would be responsible for the day-to-day running of the business and that the staff would report to her.  The complainant asked if she was being demoted and Ms D replied that she wasn’t.  The complainant said that she asked for the changes to be given to her in writing and Ms D replied that Mr D wasn’t prepared to put anything in writing.  Ms D told the complainant that her job wasn’t changing and that “you will just be answering” to Ms E.  She told the complainant to “get behind” Ms E and to make her part of the team. 

The following Monday, the complainant said that Ms E called her to the office in the shop and told her that she was taking over the staff rosters and that the reps and suppliers who come into the shop should be directed to speak to her.

On Thursday, May 18th, Mr D arrived in the store and he approached the complainant and said that he heard that she was looking for something in writing.  When she explained that she wasn’t doing the staff rosters and other aspects of the manager’s job, she said that Mr D replied that he would speak to her the following Monday.  Mr D wasn’t in the shop the following Monday and, on Tuesday, the complainant sent him an email to re-schedule their meeting.  At the hearing, she provided a copy of her email and Mr D’s reply in which he said, “I will be in store tomorrow and we can discuss any changes then.”  In her documents for the hearing, the complainant included a copy of an email she sent to Mr D on Wednesday, May 24th in which she referred to their meeting that day and in which she replied to a request from Mr D to list the changes to her job.  She provided the following examples:

1.       Demoted

2.       No longer responsible for staff

3.       No longer responsible for the day-to-day running of the store

4.       No longer dealing with reps and suppliers

5.       No longer doing rosters

6.       No longer doing wages

On Tuesday, June 13th, the complainant said that she was abused by Ms E when she put in a maintenance call to have a fridge repaired.  On Friday that week, she said that Ms E shouted at her in front of staff and customers, because she had put in an order for crisps.  Ms E told the complainant that she wasn’t to do any orders without speaking to her first and if she did, she would be reported to Mr D.  The complainant said that she was embarrassed and upset and a colleague intervened and brought her out the back of the shop to get some air.  When she was outside, Mr D arrived and the complainant said that he told her that he didn’t want to see her upset and he advised her to go home.

At a meeting on Tuesday, June 20th, the complainant said that Mr D told her that he didn’t want to see her “in the state” she was in on Friday.  He told her that her job hadn’t changed and he brought Ms E into the meeting and said that they needed to “move on from this.”  Ms E said that she had only asked the complainant to show her the rosters and wages.  Mr D said that he hadn’t instructed anyone to take over the complainant’s job.  She asked him to reply to the email that she sent him on May 23rd, asking him to confirm any changes to her terms and conditions.  The complainant provided a copy of an email from Mr D on June 21st.  Mr D sent a copy of this same email to the WRC on May 7th 2024 and, as it is the only submission from him, I will repeat it in full here:

“Hi (name of complainant)

I hope we cleared a lot up yesterday and apologise if anything is lost in translation but I want to reiterate what I said yesterday on numerous occasions that I have never asked anyone to tell you to stop ordering, dealing with reps, doing wages, rosters or being responsible for staff and day to day running in shop.

Quite the opposite actually was said by myself that I hoped you’d be very involved in helping (Ms E) do all the above and the many more duties you have carried out in the past.

I hope this clarifies exactly what I need from yourself and everyone else in the store for the place to survive firstly and then flourish.

We will speak again when I’m in store either today or tomorrow.

Regards …”

The complainant replied on July 3rd, asking Mr D to clarify several issues.  She also asked for a statement of her terms and conditions of employment.  She got no reply.

On August 9th 2023, Mr D questioned the complainant and a colleague about why orders were not completed and, when they replied that, on Ms E’s instructions, they didn’t do orders, the complainant said that he got annoyed and was abusive.  On August 21st, the second director, Ms D was in the store and she asked the complainant why she wasn’t doing orders.  The complainant explained again that the instruction had come from Ms E.  The complainant said that she repeated her request for a statement in writing about the changes to her job.  Three days later, Ms E told the complainant that all her work had to be checked by her and that this is what Mr D wanted. 

The complainant’s weekly take-home net pay was €600.  On September 7th, Mr D informed her that he was changing her gross pay to €350 and that €250 would be paid in cash.  The complainant said that she told Mr D that she didn’t agree to this and that she would seek advice.  On Thursday, September 21st, the complainant got her payslip which showed weekly pay of €350 gross.  This resulted in a change to her tax credits and her net pay was higher, at €363.  The next day, €237 was transferred to the complainant’s bank account, but not from the usual payroll account.  Payroll is managed by an external provider and when she contacted a person in that company, the complainant was informed that their instructions were to pay her €350 gross per week from now on.  The complainant explained that she had received €237 from another account which wasn’t shown on her payslip.  The person in the payroll provider had no explanation for this.  The complainant contacted the Revenue Commissioners and was instructed to return the second payment or to declare it as income.  She contacted Mr D and asked him for the IBAN number of the account to which to return the payment.  When she got no reply, on Monday, September 25th, she withdrew €237 from her bank account and gave it to Ms E.  She sent Mr D an email to let him know and to ask him to put the money through payroll. 

On Thursday, September 28th, the complainant said that Mr D called her and a colleague to a meeting and told them that the business couldn’t sustain their wages and that he wanted to pay them €350 through payroll and the rest in cash.  The complainant and her colleague objected and the complainant said that Mr D agreed to put the “cash” amount through the payroll the following week, but he said, “there will be consequences.”

In the documents she provided to the WRC in advance of the hearing, the complainant included a copy of a text message dated October 5th 2023 from Mr D in which he stated:

“… Apologies I forgot to put balance due from last week on run for wages this week, you can take the cash which is still there or I have requested (the payroll provider) put it on next week I’ll be there later you can let me know which suits.”

On October 13th, in addition to her normal weekly pay of €760 gross, a sum of €458.95 gross was included in the complainant’s wages.  The complainant’s belief is that this is not the correct amount that she should have been paid, but when she tried to contact Mr D, he didn’t reply.  She contacted him again on October 31st, and on three dates in November.  The complainant included copies of the text messages in the documents she submitted at the hearing.  There is no evidence that Mr D replied. 

The complainant was on sick leave from December 30th until January 5th.  When she was on leave, she received a message on the shop’s WhatsApp group telling her that opening hours had changed.  The revised roster showed that she was rostered from 7.00am until 3.00pm on Mondays and Tuesdays and off on Wednesday.  She was rostered from 2.00pm until 10.00pm on Thursday and Friday and from 8.00am until 4.00pm on Saturday.  She returned to work on Monday, January 8th 2024 and had a meeting with Mr D about the changes.  When she complained that she wasn’t consulted about the changes, the complainant said that Mr D said that he didn’t have to consult her and that he could change her hours because she had nothing in writing stating that she worked from 6.00am until 2.00pm.  He instructed the complainant not to open the store until 7.30am and he told her that her roster from now on was from 7.00am until 3.00pm from Monday to Friday.  The complainant said that Mr D said that he was giving her those hours so that her wages wouldn’t be reduced.  The complainant included a copy of a letter given to her by Mr D on January 8th which reads as follows:

“As discussed today and as previously communicated on numerous occasions in the staff/management WhatsApp group our opening hours are changing, this will mean that our hours to work will also change.

Let it be noted that we have offered you alternative hours to stop you losing number of hours (sic) worked (ie, 7am – 3pm instead of 6am – 2pm) of which you have refused, we have also made you aware that your choice to do so will be reflective in salary (sic).

As per each employee’s contract of employment from time to time business dictates the need for you to be flexible in your hours of work.

Regards…”

On the same day, the complainant contacted the WRC and submitted a complaint under the Terms of Employment (Information) Act.  She was advised to contact the Free Legal Aid Centre.  She then sent an email to Mr D to inform him that she did not agree to the changes and that, to avoid any further conflict, under protest, and, until the dispute could be resolved through mediation, she would agree to work from 7.00am until 2.00pm daily. 

On Thursday, January 11th, the complainant’s wages were wrong when she was paid sick pay for one day instead of pay for a public holiday.  She contacted the payroll provider to get the error corrected.  The next day, Mr D told the complainant that she had been overpaid for the past few weeks.  He showed her the payslips where he indicated that she was overpaid and the complainant asked for a copy.  Mr D replied that they were in her file and she could look at them anytime.  If she had a problem with her wages, Mr D advised the complainant to contact him and not the payroll provider.  The complainant contacted the Revenue Commissioners about the overpayments identified by Mr D and she was advised that, due to changes in the budget, she was entitled to tax relief and that the changes had the effect of increasing her net pay.

On January 17th, the complainant submitted a complaint to the WRC under the Protected Disclosures Act 2014.  She claims that she was penalised for not accepting cash payments and for reporting this to the Revenue Commissioners.

Although outside the timeframe of this complaint, the complainant said that, at the end of February, Mr D told her that she owed him €95.  When the complainant replied that she was in touch with Revenue and that her tax credits had changed and that she didn’t owe him anything, Mr D said that the response she had got from Revenue was wrong and that he would provide her with a spreadsheet showing how much she owes him.  Mr D didn’t provide this spreadsheet.

At the end of her evidence, the complainant said that her job has been reduced to mainly packing shelves.  Orders that used to be delivered in the evening now arrive at 7.00am.  She showed me a photo of 11 trollies of stock which were delivered before 7.30am on Friday, May 3rd.  The complainant said that she unloads the stock and packs it on the shelves as quickly as possible before the shop opens at 7.30am.  She said that she asked Ms E to assign someone to help her to unload the trollies but she was told that no one was to be brought in.  Ms C works from 9.30am until 5.00pm.  The complainant said that Mr D doesn’t speak to her now and that he just stands and stares at her.  She said that she assumes he is trying to intimidate her

In May 2023, the complainant asked the respondent to provide her with a statement in writing setting out the changes to her job arising from the recruitment of the new manager.  She didn’t get a statement, but she got an email from Mr D on June 21st in which he said that he never asked anyone to tell her to stop carrying out her managerial responsibilities.  He said that he hoped that the complainant would be involved in helping Ms E to carry out the duties that she had done in the past.

The Relevant Law

Section 5(1) of the Terms of Employment (Information) Act 1994 (“the 1994 Act”) addresses the circumstances in which changes are made to the terms and conditions of an employee:

Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than

(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

Subsection (2) refers to legal changes set out in law and is not relevant to the case we are considering here.

Section 5(1) above refers to a change in any of the particulars of a statement under section 3, 4 or 6 of the 1994 Act.  Section 3(h) refers to details to be given to an employee regarding,

(h) either -

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work[.]

When the respondent took over the business in 2016, the complainant had a written contract of employment which stated that she was employed as a sales assistant.  She had been given this when she started work with the previous proprietor in 2013.  By the time the business transferred to the respondent in 2016, the complainant was the store manager; however, she was not issued with a written statement of her terms and conditions and she has nothing in writing to state that she was the store manager.  I accept that, until April 2023, she never requested such a statement.  Based on the complainant’s uncontested evidence, I am satisfied that, from a date before the business transferred to the respondent in 2016, the complainant was the store manager and that she has a contractual entitlement to this job.

In her submission, the complainant referred to the changes proposed by the respondent in September 2023 to pay part of her wages in cash.  Section 3(1A)(d) of the 1994 Act provides that an employer must provide details of,

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000[.]

Section 5(1) of the 1994 Act is clear in that it provides that an employee is entitled to receive a statement in writing setting out changes to any of the components listed in section 3.

Findings

The complainant’s evidence is that she was employed to manage the store and that, from 2016 until May 2023, she undertook this work with the full authority of the directors.  In May 2023, the directors appointed another person to do the same work, and, regardless of his assertion that he didn’t tell anyone to do the work that was formerly done by the complainant, her responsibilities were removed and she was effectively demoted.  It is unreasonable to expect employees in such circumstances to “work it out between you” as the complainant and Ms E were advised to do on March 27th 2023.

I have considered the complainant’s evidence and, it seems to me that Mr D wanted Ms E to do the job of store manager.  In his email of June 21st 2023, he said that he expected the complainant to show Ms E how to do the ordering, wages, rosters and to deal with suppliers and sales reps.  He didn’t engage with the complainant or consult with her about this diminution of her role and it is apparent that he expected her to accept it without objection.   

The purpose of issuing a statement of terms and conditions of employment is to avoid the confusion and uncertainty that occurred when Ms E was appointed in March 2023.  As she transferred to the respondent in 2016, long before the problems of 2023 arose, the complainant was entitled to a written statement of her terms and conditions of employment, to include her job title and a description of her responsibilities.  I find that the failure of the respondent to provide this statement, particularly in 2023 when she repeatedly asked, in writing, for confirmation of the changes to her role, caused her to be anxious and distressed.  This outcome could have been avoided if the respondent had acted in accordance with the law.

In September 2023, when the respondent proposed paying the complainant partly through payroll and partly in cash, in accordance with s.3(1A)(d) above, he was obliged to confirm this change in writing.  As what he was proposing was illegal, I accept that it was unlikely that he would confirm the change in writing.  

In accordance with s. 7(2)(c) of the 1994 Act, where a complaint under s.5 is well founded, I may require the employer to give a written statement to the employee containing details of their terms and conditions of employment. 

Similarly, where a complaint is well founded, in accordance with s. 7(2)(d), I may order the employer to pay compensation of “such an amount (if any) as is just and equitable, having regard to all the circumstances, but not exceeding 4 weeks’ remuneration…”  It is my view that, taking account of circumstances of both sides in relation to this matter, compensation equivalent to four weeks’ pay is just and equitable.

I decide that this complaint is well founded.  In accordance with s. 7(2)(c) of the Terms of Employment (Information) Act 1994, I direct the respondent to provide the complainant with a statement in writing of her terms and conditions of employment, and to refer to each component specified at s.3 of the 1994 Act.  Furthermore, in accordance with s. 7(2)(d), I direct the respondent to pay the complainant compensation of €3,040, equivalent to four weeks’ gross pay of €760 per week. 

The complainant’s evidence is that, on September 7th 2023, the respondent told her that he couldn’t continue to pay her full wages of €760 per week through the payroll.  Her payslip of September 22nd shows that she was paid €350 gross.  The complainant said that she refused accept her wages in this way.  From the payslips she produced at the hearing, it appears that she was paid her gross wages through the payroll from October 13th onwards, although her wages were reduced by five hours’ pay per week after she submitted these complaints to the WRC.  Because this occurred after she submitted her complaints to the WRC, I have not addressed this particular reduction in the complainant’s wages.  

The reduction in wages to €350 per week caused a knock-on problem for the complainant regarding her tax credits.  When she contacted the Revenue Commissioners, she explained that her take-home pay was consistently €600 per week.  She then learned that tax changes in annual budgets should have resulted in an increase in her net pay.  She claims that the respondent used her tax credits to pay her wages and she doesn’t know how much wages were not paid to her.  Between September 28th and December 22nd 2023, the complainant sent nine text messages to the respondent, asking him to correct errors in her wages, where she claims that she was underpaid.  There was no evidence that the respondent resolved the errors or that he contacted the payroll department to instruct them to correct them.

Wages Properly Payable

Section 5(6) of the Payment of Wages Act 1991 provides that, to ground a complaint under the Act, wages must be properly payable:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Based on the complainant’s evidence, I am satisfied that, between September 22nd 2023 and January 17th 2024, when she submitted these complaints to the WRC, there were errors in her wages and that the errors were underpayments.  I find that the errors were caused by the decision of the respondent to change the method by which the complainant would be paid, which she resisted.  I am satisfied that, when her normal wages were restored, the complainant identified ongoing errors in her net pay which were not resolved.  In conclusion therefore, I find that, in breach of s. 5(6) of the Payment of Wages Act, wages that were properly payable to the complainant were not paid.

I decide that this complaint is well founded.  In accordance with section 6 of the Payment of Wages Act (as amended), I am required to direct the respondent to pay compensation of an amount as I consider reasonable, not exceeding the net amount that would have been paid in the week “immediately preceding the date of payment.”  Due to the number of errors in the complainant’s wages between September 2023 and January 2024, it is not possible for me to determine the amount of the underpayment.  In these circumstances, I decide that the respondent is to pay the complainant compensation of €581.30, equivalent to her net pay on December 1st 2023.  Redress awarded under the Payment of Wages Act must be paid as a net amount and this award is not subject to deductions for tax, PRSI or USC.

It is the complainant’s case that she was penalised because, in September 2023, she contacted the Revenue Commissioners to report her employer’s proposal not to put her full weekly wages through payroll and to pay part of her wages from a separate bank account.

Until she was out sick on December 30th 2023, the complainant started work at 6.00am and opened the store at 7.00am, giving her one hour to take in deliveries and set up the shop for the day.  On January 4th 2024, she received a WhatsApp message telling her that, from now on, the shop was opening at 7.30am.  In her evidence, she produced a roster showing that she was required to work from 7.00am to 3.00pm on Monday and Tuesday, 2.00pm until 10.00pm on Thursday and Friday and from 8.00am until 4.00pm on Saturday.  Following discussions with Mr D, he changed her start and finish time to 7.00am to 3.00pm from Monday to Friday.  The complainant said that she contacted the WRC and she was advised to work the changed hours “under protest” until the dispute could be resolved by mediation.  The complainant said that she couldn’t work until 3.00pm and she kept her finish time at 2.00pm, resulting in a loss of pay for one hour every day.

The complainant said that she now arrives at work at 7.00am and she has 30 minutes to take in stock and to prepare for opening.  She said that deliveries that used to arrive in the evenings when three men were rostered are now delivered at 7.00am, causing her additional hardship because she has to pack this stock onto shelves before the store opens.  She said that she asked for help from the manager, Ms E, but she was told that Mr D won’t put any more people on the roster in the mornings.

The complainant was the store manager and, when she wanted to take holidays, she booked her time off on the holiday calendar in the shop.  In February 2023, she said that she booked holidays when no one else was off.  She said that Ms E instructed her to consult with Mr D before she booked time off.  She said that she never had to do this until she reported the issue with her wages to the Revenue Commissioners.

Concluding her evidence on the issue of penalisation, the complainant said that she feels micro-managed by Ms E, and that she checks her work.  She no longer has authority in the store and, to customers and staff, she said that it must seem that she has done something wrong.  The complainant said that she feels harassed by the way Ms E asks her questions about the tasks she carries out.  She said that when Mr D comes to the shop, he says “hello” to everyone, but he ignores her and stares at her, which she finds intimidating.

The Relevant Law

The Protected Disclosures (Amendment) Act 2022 (“the PD Act”) came into effect on January 1st 2023 and is the relevant law for the purpose of this complaint.  For the complaint under consideration, the relevant provision is at s.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.

The definition of a “protected disclosure” is set out at section 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 … made by a worker in the manner specified in section 6, 7, 7B, 8, 9 or 10.”

Subsection (6) refers to the disclosure of legally privileged information and is not relevant for this complaint.  Sections 17 and 18 refer to law enforcement and international relations and are also not relevant here.  Sections 6 to 10 set out a tiered disclosure process and provide that information related to wrongdoings may be provided to a prescribed person, an employer, a government minister, a legal advisor or to another person.

For our purpose regarding this complaint therefore, a “protected disclosure” is the disclosure by an employee to his or her employer, or another person, of relevant information.  To be a protected disclosure, the information disclosed need not be something about which the receiver is unaware.  Section 3(1) of the PD Act defines “disclosure” as “bringing to the person’s attention” information about which they are already aware.

Section 5(2) provides that,

“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.”

The operative clause concerning whether information shows that a relevant wrongdoing has occurred, is occurring or will occur is “reasonable belief.”  Section 5(8) provides that in these proceedings at the WRC, “involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”  In the Q & A material included as an appendix to the “Statutory Review of the Protected Disclosures Act 2014,” the reviewers note that,

“…all that is required is a reasonable belief that the information disclosed shows or tends to show that the wrongdoing is occurring.  This is a deliberately low threshold designed to ensure that most reports are made to the person best placed to correct the alleged wrongdoing – the employer.”

It is apparent that the Act intends that “relevant information” concerning an alleged wrongdoing is provided to the employer so that the wrongdoing can be addressed and, that the employee does not have to be convinced that a wrongdoing is occurring but that the lower threshold of “reasonable belief” applies. 

Section 5(3) of the PD Act lists the matters considered to be relevant wrongdoings:

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 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.

Under the heading, “Interpretation” at s.3 of the PD Act, 17 examples of penalisation are provided.   In the case of this complainant, subsections (c), (e), (h) and (m) are relevant:

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

(e) coercion, intimidation, harassment or ostracism,

(h) threat of reprisal,

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

Did the Complainant Make a Protected Disclosure?

On Friday, September 22nd, when she was not paid her full wages through the payroll, the complainant tried to contact Mr D, but he didn’t answer her calls.  She sent an email to the external payroll provider and a staff member there told her that they had been instructed by Ms D to pay her €350 per week, instead of her normal wages of €760.  When €237 was transferred separately to her bank account, she contacted the Revenue Commissioners and was advised to return that sum or to declare it as income.  When she asked Mr D for the IBAN number to return the undeclared sum, he didn’t reply.  On Monday, September 25th, she gave Ms E €237 in cash in an envelope.  On Thursday, September 28th, the complainant and a colleague had a meeting with Mr D.  After some discussion, the complainant said that Mr D agreed to put the returned cash through the payroll the following week but, he said, there would be consequences. 

There are three components to the making out of a claim of penalisation under the Protected Disclosures Act:

1.  An employee must have a reasonable belief that a wrongdoing is occurring, has occurred or might occur;

2.  They must communicate what they know about the alleged wrongdoing to a prescribed person, their employer, a government minister, a legal advisor or another person;

3.  They must establish “a causal connection” between some action taken to their detriment, “a penalisation,” and the fact that they communicated with someone about a wrongdoing.  (See the decision of the Labour Court in Aidan and Henrietta McGrath Partnerhsip v Anna Monaghan[1]).  

Considering point 1 above, the complainant hadn’t simply a reasonable belief, but a clear understanding that what her employer was proposing was wrong.  Considering point 2, when she objected to being paid undeclared income, she informed her employer that she didn’t want to be complicit in a wrongdoing.  When he didn’t respond, she informed the Revenue Commissioners.  In so doing, I am satisfied that the complainant made a protected disclosure consistent with the definition of a wrongdoing at s.5(3)(a) and (b) of the PD Act.  Considering point 3 above, my task now is to consider if there is “a causal connection” between this protected disclosure and the detriment suffered by the complainant when her hours were changed in January 2024.

Was the Complainant Penalised?

The complainant claims that she was penalised when her hours were changed from 6.00am until 2.00pm to 7.00am until 3.00pm and that causes her to be under pressure every morning because she has 30 minutes instead of one hour to prepare the shop for opening.  She also claims that she has been humiliated, by having her managerial duties removed from her, and by having her work supervised by a newly appointed manager.  She said that she feels intimated by the way she is treated by the respondent and by Ms E.  I found the complainant’s evidence to be credible and I believe that the detriment she is suffering is because she refused to co-operate with her employer and that she reported a breach of the tax code to the Revenue Commissioners.  It is clear to me that the previously cordial relationship she had with the respondent has irretrievably broken down and I agree with her assertion that the treatment she is being subjected to is intended to harass her and to cause her so much distress that she will leave her job. 

Conclusions

Every employer knows that paying wages “under the counter” is an offence.  The complainant complained about this to the respondent in September 2023, and, when she got no satisfaction, she reported it to the Revenue Commissioners.  The respondent told the complainant that his business couldn’t sustain her full wages and that there would be “consequences” for her refusal to cooperate. 

I am satisfied that by telling her there would be consequences for her refusal to co-operate, the respondent threatened the complainant.  In the way her hours were changed in January 2024, she was penalised and she was placed under pressure at work by having to do in 30 minutes what she used to do in one hour.  I find also that the respondent permitted another person, Ms E, to penalise the complainant, by refusing to roster staff to help her and by unnecessary supervision.  Finally, it is inevitable that the removal of the complainant’s managerial responsibilities causes damage to her reputation with her colleagues and with suppliers and customers.  I find that this conduct on the part of the respondent is consistent with the definition of penalisation at s.3 (c), (e), (h) and (m) of the PD Act:

(c) transfer of duties, change in working hours,

(e) intimidation, harassment and ostracism,

(h) threat of reprisal,

(m) harm, including to the worker’s reputation.

In its long title, the Protected Disclosures Act 2014 is said to be intended to,

“…make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes.”

This means that its objective is to put in place protections for workers who take action to highlight wrongdoings and, not only to protect them, but to encourage others to come forward when a wrongdoing is identified.  The Act is intended to be a deterrent to employers from taking retaliatory action against such workers and I have reflected this in the compensation that I consider to be just and equitable in these circumstances. 

I decide that this complaint under the Protected Disclosures Act 2014 is well founded and I direct the respondent to pay the complainant compensation of €40,000, the value of approximately one year’s gross pay. 

CA-00060881-001:  €3,040                Redress under the Terms of Employment (Information) Act 1994

CA-00060882-002:  €581.30              Redress under the Payment of Wages Act 1991

CA-00061062-001:  €40,000              Redress under the Organisation of Working Time At 1997

Total award:             €43,621.30

Section 192A of the Taxes Consolidation Act 1997 provides for an exemption from income tax in respect of certain awards made for infringement of an employee’s rights or entitlements or an employer’s obligations under employment legislation.  The Tax and Duty Manual published by the Revenue Commissioners in May 2021 lists the Terms of Employment (Information) Act 1994 and the Protected Disclosures Act 2014 in the legislation for which an exemption from income tax is available.  The award under the Payment of Wages Act is a net payment.  Therefore, the total award of €43,621.30 is not liable for tax, PRSI or USC.

Statement of terms and conditions of employment, wages properly payable, protected disclosures