Complainant

Respondent

Parties

Dánagh  Nagle

Tesco Ireland

Complainant

Respondent

Anonymised Parties

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Representatives

Dajana Sinik IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997

CA-00062699-001

09/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062699-002

09/04/2024

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

CA-00062699-003

09/04/2024

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

CA-00062699-004

09/04/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant, one witness for the complainant and three witnesses for the respondent undertook to give their evidence under affirmation.  As a result of preliminary matters that were dealt with, not all witnesses were heard from.  Cross examination took place.

CA-00062699 – 001 Banded Hours

The complainant confirmed that she did not seek a change in her working hours or raise an issue in writing with the respondent.

CA-00062699 – 002 Employment Equality

The complainant confirmed that her compliant was not based on less favourable treatment on any of the protected grounds.  The complainant confirmed that she had not previously raised any complaint with the respondent under any of the protected grounds.

CA-00062699 – 003 Payment of Wages

The complainant stated that she was stopped wages in relation to a time she was off on sick leave.

CA-00062699 – 004 Payment of Wages

The complainant stated that this complaint was a duplicate complaint, based on the same set of facts as the previous complaint.

The respondent submitted that all the complaints were outside of the timeframe of 6 months permitted by the legislation.

CA-00062699 – 001 Banded Hours

The respondent submitted that the complainant did not submit any written request regarding banded hours as required in Section 18A of the Act.  The respondent submitted that it did not refuse any such request.

CA-00062699 – 002 Employment Equality

The respondent submitted that no protected ground was submitted in relation to this complaint and that no detail was provided expanding on the complaint.

CA-00062699 – 003 Payment of Wages

The respondent submitted that there were no unlawful deductions and that the Act was not breached.  Any deductions made were done so in accordance with the sick leave policy agreed between the staff unions and the respondent in 2012.

CA-00062699 – 004 Payment of Wages

The respondent submitted that this is a duplicate complaint made on the same facts as the previous complaint.

Submission Time frames

The complaints were not lodged within the 6-month timeframe set out in the Acts.  When asked for a reason for this, the complainant indicated that she sought copies of her payslips to verify matters.  She stated these were not forthcoming and that she was trying to resolve matters locally.

(6) 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.

…

(8) 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.

As the payslips the complainant sought were not provided to her, which would have provided clarity for all the complaints before me, I am satisfied that this situation is one that requires the extension of the timeframes as provided for in the legislation.  I find that seeking, and not being provided with copies of payslips amounts to reasonable cause for granting an extension under the legislation.

CA-00062699 – 001 Banded Hours

Section 18A (8) & (9) of the Organisation of Working Time Act state the following.

(8) Where an employee believes that his or her employer has failed to place the employee in a band of weekly working hours in accordance with subsection (3), having been requested to do so under subsection (2) or unreasonably refused a request to be placed on a band of weekly working hours, the employee may make a complaint in accordance with Part 4 of the Workplace Relations Act 2015.

(9) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a failure to comply with this section shall do one or more of the following, namely—

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

(b) where the decision is that the complaint was well founded, require the employer to comply with this section and place the employee on the appropriate band of hours.

The complainant confirmed that she did not seek to change her banded hours in writing.  She referred to the months of June, July and August as a period when she was required to work more than her banded hours.  The figures provided by the respondent for this period show that the complainant average weekly hours fell within the band that she had commenced in mid-June.  Accordingly, I find that the complaint is not well founded.

CA-00062699 – 002 Employment Equality

The complainant confirmed that her complaint was not based on any of the protected grounds.  She also confirmed that she had not previously taken a complaint under any of the protected grounds.  Accordingly, I find that her complaint is misconceived.

CA-00062699 – 003, 004 Payment of Wages

The complainant suggested that wages were improperly deducted, contrary to the Payment of Wages Act.  The respondent outlined its sick leave scheme which provides of a reduced payment of wages relating to a period of certified sick leave and submitted that the reduced level of payment was lawful in all the circumstances.

The complainant submitted that she was told by the respondent that she would be reimbursed monies that had be retained under the Sick Leave arrangements agreed between the Respondent and Unions.  However, she was not able to establish that any money was unlawfully deducted in relation to her salary or that the Act was breached.  Accordingly, I find that the complaint is not well founded.

CA-00062699 – 001 Banded Hours

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is not well founded.

CA-00062699 – 002 Employment Equality

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is misconceived.

CA-00062699 – 003, 004 Payment of Wages

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is not well founded, and the complaint has not established that the Act was breached.

Banded Hours – not well founded – Employment Equality – misconceived – Payment of Wages – not well founded