ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00054036
Parties:
| Complainant | Respondent |
Parties | Eve Kilcoyne | Mac's Place Ltd |
Representatives |
| The HR Suite |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00065910-001 | 11/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00065910-002 | 11/09/2024 |
Date of Adjudication Hearing: 11/04/2025 and 19/01/2026
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. Where submissions from parties were received including additional submissions, they were exchanged. The complainant gave evidence under affirmation and for the respondent Jacinta Greene HR Manager and Mr Damien O’Eonnell Area Manager gave evidence under affirmation.
Background:
The complainant submitted that she was unfairly dismissed and that she did not receive a statement of employment following a change to her employment. |
Summary of Respondent’s Case: CA-00065910-001
Preliminary Issue: The respondent submitted that the correct name for the respondents was Mac’s Place Ltd and gave consent to change. Substantive Issue: Mac’s Place Ltd operates a Spar Convenience shop and Fuel Forecourt in Charlestown, Co Mayo and Supermac’s also operate within the Service Station. The Complainant was employed from November 2016 until termination of her employment in April 2024 by way of redundancy due to the decline in cash payments and therefore the reduced requirement for a dedicated resource in the cash office. The Complainant was originally hired as a Team Member to work in the Respondent’s Spar shop and her contract identified her as a Team Member, which was quite general and not specific and her duties were originally as a general assistant, but in a short time she became the main cash office person.
The Complainant worked from 9.30 – 12.30pm – 5 days per week and in the early days the levels of cash counted and balanced warranted a dedicated role, albeit on a part time basis, 5 days per week and over the years the amount of cash tendered had greatly reduced across the business. Some general office duties remained across other sites, but the Respondent’s structure has moved away from having a dedicated office admin role in each location and in locations of a similar size, there are no dedicated office admin roles. The duties are covered by other employees carrying out general retail assistant duties or by the manager or supervisors on those sites.
On 15/06/2023 the Respondent’s HR Manager received an email from the Complainant regarding pay. A pay increase request was refused on the basis that the specific role in the cash office would be eventually phased out. The Respondent HR Manager met with the Complainant on 22/06/2023 and discussed the Complainant’s concerns and advised her this role would most likely continue to be phased out. The HR Manager followed up with the Complainant by email on 23/06/2023 advising that no final decision was made and that the matter would be discussed after the summer.
On 14/01/2024 the Complainant wrote a letter of complaint to the Managing Director and a Retail Area Manager. The Complainant had received an increase from €11.90 to the new minimum wage of €12.70 the previous week, and she was upset by this. She was unsure of her position and was of the belief that she should have had a new contract given her office role. In the coming days, the Area Manager for the Store where the Complainant was based, met with the Complainant and explained he had received her complaint from the Managing Director and did acknowledge the office role was under review. However, in an effort to reassure the Complainant that she was a valued member of the team he increased her rate by 60c, to bring her 60c above minimum wage as she had been previously. This was backdated to 1st January 2024 also.
On 01/03/2024 the HR Manager wrote to the Complainant outlining they would be reengaging with her in relation to her role, noted that her position was now at risk, and inviting her to a meeting scheduled for 11/03/2024 attended by the Area Manager and the HR Manager who met with the Complainant. It was noted to the Complainant that in the event that her role was made redundant, there would be alternative options available to her to allow her to remain in the Respondent’s employment. These options included a retail assistant role and a catering assistant role. The Complainant was adamant that she did not want to work in catering side of the business and stated that she did not think she would be able for the retail assistant role as she would have to carry stock up and down the stairs and that she didn’t think she could. The Complainant also noted that she would not be available to work evening shifts in any proposed alternative role. At this meeting, the Complainant stated that she would take a redundancy payment as opposed to any alternative role on offer. It was noted that the Complainant did not want to consider alternatives and as the Respondent did not have any other options to put to her, the redundancy of her role was confirmed.
On 12/03/2024, the HR Manager wrote to the Complainant setting out her redundancy calculation of €3260.34 and her outstanding annual leave balance. This letter also confirmed the notice period applicable to her and confirmation that her last date of employment would be 07/04/2024. As the Complainant had already planned to take annual leave from 25th March to 7th April (Two weeks – 30 hours), the Respondent added on a further two weeks’ pay to her holidays (30 hours) so that her holiday was not part of her notice. All holidays were paid. The Complainant acknowledged this email on 15/03/2024 confirmed that payments had been made and asked for a reference, which was provided. On 17/04/2024 the HR Manager contacted the Complainant with details of FETCH courses and enquired if she was interested in being considered for office roles in Head Office in Galway. The Respondent received no response to this email.
Section 6 of the Unfair Dismissals Act 1977 provides the legal framework for complaints of unfair dismissal and lists the grounds where dismissal of an employee shall not be deemed to be unfair including the redundancy of the employee. In the instant case, the work that the Complainant carried out had significantly diminished to the point where a standalone role for these tasks was no longer viable. These tasks are carried out as part of the duties on the management team or where required, by retail assistants.
Case law cited included Smith v Leddy UDD 74/2019 . The complainant was not unfairly dismissed and the role ceased to exist due as a result of a significant decline in cash payments and the complainant was offered alternative roles within the business but decided to consider these. The Complainant was issued notice of redundancy and was paid for this period and received her statutory redundancy payment on termination of her employment.
Evidence of Mr Damian O’Donnell Money was tight and the role of a cash officer was gone and they did not need the role. He had spoken to other managers and with less cash on the premises and others had machines to count what cash there was and it was more a day to day role and there was no formal notice given to her just an explanation. A letter was sent and he clarified to her that she is a valuable member and works well and he had looked at ways of smarter labour and was trying to figure it out and they increased her wage to above minimum wage. The following March 2024 they told her the role was done away with as they had gone from 70% cash to 30% cash and her role was not going to be sustainable in the long terms. When she was off or on holidays the general assistants did the role and it is now part of their role. Other areas were discussed that she could move to and she did not want to work for Supermac’s and did not want a retail role and there had been an offer of a retail role in the Spar. She maybe asked him about working in head office.
Cross Examination of Mr Damian O’Donnell There was a meeting with her and an email sent 27/01/2024 and he had told her they were phasing out the role. The role involved daily reports and counting cash and banking of cash and balancing of safe and it might take 2 hours or 2 hours 15 minutes. There were locations that do not have a cash person. His role is area manager supporting managers and he joined in 2018. There was a performance review in 2023 and she was valuable and some stores were not using a cash person and to reassure her and for her loyalty she got the increase and a meeting was set up to inform her. Ms Green took the lead at the meeting and Ms Greene talked about other roles and he knew the complainant had experience and they asked her about the Supermac’s role and the retail. If someone moves to salaried they get an updated contract but this was not the case and she did not recall the complainant getting a new job description.
Evidence of Ms Jacinta Greene She met her the complainant on 22/06/2023 and she emailed after as she felt undervalued and met her off site and discussed her concerns and the role and they were not investing in the cash office. The manager had fought hard to keep the complainant’s role. She felt that the decision made was very personal to the complainant and they tried to maintain a balance between phasing out the roles and her role and they made it clear that when they knew more they would be in touch. She had originally started in retail and it evolved as she was honest, trust worthy and reliable and they hoped she would stay. A review of labour costs showed it was not sustainable to keep her and they hoped that she would stay with them and that was why she got an increase and she had restrictions working 09:30-12:30 and she was also a carer and she was offered a role in Supermac’s or in the Retail and she said redundancy was the preferred option. |
Summary of Complainant’s Case: CA-00065910-001
Preliminary Issue: The complainant agreed to the submission by the respondent to amend the respondent’s name to Mac’s Place Ltd. Substantive Issue: The complainant started work on 01/10/2016 and her employment ended on 07/04/2024. The complainant submits that she was made redundant on the 07/04/2024 following notice received on 11/03/2024 at an at risk of redundancy meeting. Due to less cash and reduced sales. she was asked to a review last April 2023 as all employees were having them. She was told she couldn’t have a pay increase as her job was being phased out, so no money was being invested in the cash office and it had been discussed the previous August 2022. This meeting was held within store in the staff room with the manager and the area manager. She was informed Charlestown was the last store to hold this position. The meeting was awful, and she was talked to like she was nothing. She was asked did she think she was management, because she wasn’t and she had no say or opinion in anything to do with the decisions’ or running of the shop. No information, no follow up and she cried at the meeting and left stressed and worried about her future.
A couple of weeks passed, and nothing further was said about the situation and all the staff were given pay increases after their reviews. The part time weekend staff had been made a supervisor and was going into the cash office to train and she trained all the staff in the cash office including the manager. She needed clarification of what was said at that meeting, so she contacted the HR manager Jacinta Greene. A meeting was arranged to discuss the matter. At that meeting Ms Greene confirmed the position of cash officer was not being invested in and when employee left the current position held, they were not being replaced. She was advised that a decision would be made by the end of the Summer and she could either wait for the decision, look for another job or she could request redundancy. She felt very upset at that meeting, she was currently training someone in the cash office and could not understand how her job could be made redundant. She went back to work and nothing was ever said by her manager or the area manager again even though Ms Greene did go into discuss the meeting with the managers after the meeting with her.
Summer came and went, two members of staff left and were not replaced. She continued working 5 days/ 15 hours a week. Then January 2024 came and the minimum wage increase of € 12.70 came into force and she was on €11.90 which was €0.60 above the old minimum wage and they moved her to €12.70 minimum wage. The complainant was upset as she had started on minimum wage in 2016 and now she was back on minimum wage in 2024. She made enquires and the manager said he had no control over the increases as his wages budget hadn’t been increased even though the minimum wage had and he could not increase her wages. Everyone else received an increase in store and she wrote to Head Office to the MD and outlined that her expectation was that she would retain her 0.60c hourly difference. She was told she would be moving to €13.30 and was told at that informal meeting that things were changing and she would hear in due course.
The first week in March, she received a letter of Risk of Redundancy meeting to her home. Nothing was mentioned by the manager at work and she attended the meeting on 11/03/2024 and was only expecting Ms Greene but the area manager was also there. The complainant felt very overwhelmed, intimidated and outnumbered and was told at that meeting there was no office position in Charlestown anymore. Going forward the cash would be done ‘ad hoc’ when there was time to do it not every day and that is how it was done in every other store across the country. There was no other position in the company.
When she asked about how it would work she was told it was the manager’s job to deal with the running of it and nothing for her to be concerned about. They hadn’t come to offer her a new alternative position and they wanted to know what she was available to do but she had previously discussed this with them so they should have come with a suitable alternative position. She was told that the margins were higher in Supermac’s and there were Catering Assistant roles available in store but the margins in Spar were tighter and the wage budget wouldn’t stretch. She refused a position in Supermac’s as a Catering Assistant as she was the Cash Officer/Administrator she worked for Spar.
Nothing was offered only talk about her skill set and Ms Greene told her no one deserved the redundancy money more than the complainant and they would not hold her to the notice period if she got another job and it was agreed that she would take it as there was nothing else on offer. The complainant had 2 weeks holidays booked and it happened so quickly she felt she had no alternative and was pushed into the decision, was never offered a suitable alternative in the shop where she had worked for almost 7 and a half years.
The Area Manager told the staff she was being made redundant, and he didn’t want them to worry about further redundancies as it was only her going. From that day on he didn’t speak with her about anything, and she requested a reference from him and he hasn’t even had the courtesy to open the message. She was never told she could have taken 15 hours from someone else and Jacinta Greene HR manager contacted her stating that after consideration she thought it was unfair that as the complainant’s had holidays booked and approved that she’d have to use them as part of her notice period and they would be complimenting the 2 weeks. The complainant continued to feel very upset, and Ms Geene checked in with her and gave a reference and she was asked was she interested in any positions that might come up in Galway Head Office. Her position as Cash Officer is still very much active and part of the daily process of the running of the shop and as she only worked 15 hours she does not see how this affected the wage budget. Evidence of Complainant She was promoted to work in the cash office and worked 5 days weekly 09:30 till 12:30 and had 2 performance reviews and asked for a pay rise. She sent an email on 15/06/2023 and it was confirmed that they were phasing out the cash officer and not replacing She did not hear anything after that and on 14/01/2024 she got an pay increase and she had always been 60c above the minimum wage and then she got her 60c above and it was back dated when she queried it. On 01/03/2024 she got a letter that said she was as at risk of redundancy and there was a meeting about it with Mr O’Donnell and Ms Green and she was not expecting Mr O’Donnell at the meeting and felt overwhelmed and was offered a role as catering assistant. She had booked holidays and 2 weeks later she finished up and made redundant. She did not get a pay increase when promoted.
Her employment ended on 07/044/2024 and she took up a new job on 13/09/2024 and did not get an updated job description after she moved to the cash office. Cross Examination of the Complainant Under cross examination she said she had a meeting in March with Ms Greene and was only offered catering job and denied she was offered retail options. She did not question the letter as everything was a panic and there were no margins in retail and she had not worked in a catering role. There was no offer made to her and the 15 hours she worked should have been taken from someone else in retail as she was there longer.
Her rate of pay had changed and she should have been offered a new contract. She confirmed she is earning more now than previously as she earns €249.75 and previously earned €199.50 and from September 2024 she had no financial loss and there were no suitable jobs from April till September and she only applied for jobs if there was something suitable and applied for about 18 roles and listed them. She disputed that a redundancy arose as the role is still carried out and she had trained all the others.
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Findings and Conclusions: CA-00065910-001
Preliminary Issue: The respondent submitted that the respondent’s name should be changed and the complainant agreed and as parties were not prejudiced by same I gave agreement to amend the respondent to Mac’s Place Ltd. Substantive Issue: The complainant submits that she was dismissed unfairly and the respondent submits that the complainant was dismissed owing to redundancy and that the dismissal was fair. Unfair dismissal. 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. … (3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either— (a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or (b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal. (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and …. (6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
It was not in dispute that the complainant worked in the cash office and that she was informed in June 2023 that the complainant’s role in the cash office may be phased out and the complainant’s hourly rate was increased followed her raising concerns that she had lost her previously held 0.60c higher hourly rate of pay and backdated to January 2024. It was not disputed that the complainant was informed her position was at risk of redundancy and following a meeting on 11/03/2024 options were discussed with the complainant regarding taking on a role in the Supermac’s or redundancy and it was in dispute between the parties as to whether the complainant was offered a role within retail at those meetings.
I note that the letter of invitation did not afford the complainant the opportunity to have anyone present at the meeting and that the letter issued refers to a retail role and that the complainant was not offered an appeal of the redundancy.
It would appear based on the evidence that the role of cash officer was redundant due to a decline in cash and increased card use by customers not unlike many other similar industries. I note that similar to UDD1726 Students Union Commercial Services Ltd v Alan Traynorthe Respondent did follow a consultation process but that consideration of alternatives to redundancy was somewhat arbitrary. I find in this instant case that the complainant was not afforded the right to representation, with no appeals process and it would appear that there was not appropriate enquiry made into other opportunities including retail opportunities. As determined in UDD 1638 Tolerance Technologies Ltd v Joe Foran, while “finding that the ….position was redundant” …I also find “that the manner of his dismissal as result (sic) was procedurally unfair”.
Redress for unfair dismissal. 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,
I have considered the appropriate redress and in all the circumstances I find compensation the appropriate redress.
The complainant is earning €249.75 since September 2024 and her previous weekly was €199.50 gross. Albeit she is now earning more, she incurred losses from April till September 2024 and albeit she made some efforts to apply for other positions these efforts do not fully meet the standards of “reasonable, adequate and sufficient” as set out in Sheehan v Continental Administration Co Ltd. 858/1999whereby: “A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…The time that a Claimant finds on his hands is not his own, unless he chooses it to be, but rather time to be profitably employed in seeking to mitigate his loss”.
I find that the complainant was procedurally unfairly dismissed and in all the circumstances I award the complainant €800 gross which I find fair and reasonable. |
Summary of Complainant’s Case: CA-00065910-002
Preliminary Issue: The complainant agreed to the submission by the respondent to amend the respondent’s name to Mac’s Place Ltd.
Substantive Issue: The complainant submits that she did not receive a statement in writing of the terms of employment of her position of cash officer which was a different role than that which she was originally employed for and she requested updated terms of employment and did not receive them.
The complainant started work on 01/10/2016 and her employment ended on 07/04/2024. The complainant submits that she was made redundant on the 07/04/2024 following notice received on 11/03/2024 at an at risk of redundancy meeting. Due to less cash and reduced sales. she was asked to a review last April 2023 as all employees were having them. She was told she couldn’t have a pay increase as her job was being phased out so no money was being invested in the cash office and it had actually being discussed the previous August 2022. This meeting was held within store in the staff room with the manager and the area manager. She was informed Charlestown was the last store to hold this position. The meeting was awful and she was talked to like she was nothing. She was asked did she think she was management, because she wasn’t and she had no say or opinion in anything to do with the decisions’ or running of the shop. No information, no follow up and she cried at the meeting and left stressed and worried about her future.
A couple of weeks passed and nothing further was said about the situation and all the staff were given pay increases after their reviews. The part time weekend staff had been made a supervisor and was going into the cash office to train and she trained all the staff in the cash office including the manager. She needed clarification of what was said at that meeting so she contacted the HR manager Jacinta Greene. A meeting was arranged to discuss the matter. At that meeting Ms Greene confirmed the position of cash officer was not being invested in and when employee left the current position held they were not being replaced. She was advised that a decision would be made by the end of the Summer and she could either wait for the decision, look for another job or she could request redundancy. She felt very upset at that meeting, she was currently training someone in the cash office and could not understand how her job could be made redundant. She went back to work and nothing was ever said by her manager or the area manager again even though Ms Greene did go into discuss the meeting with the managers after the meeting with her.
Summer came and went, two members of staff left and were not replaced. She continued working 5 days/ 15 hours a week. Then January 2024 came and the minimum wage increase of € 12.70 came into force and she was on €11.90 which was €0.60 above the old minimum wage and they moved her to €12.70 minimum wage. The complainant was upset as she had started on minimum wage in 2016 and now she was back on minimum wage in 2024. She made enquires and the manager said he had no control over the increases as his wages budget hadn’t been increased even though the minimum wage had and he could not increase her wages. Everyone else received an increase in store and she wrote to Head Office to the MD and outlined that her expectation was that she would retain her 0.60c hourly difference. She was told she would be moving to €13.30 and was told at that informal meeting that things were changing and she would hear in due course.
The first week in March, she received a letter of Risk of Redundancy meeting to her home. Nothing was mentioned by the manager at work and she attended the meeting on 11/03/2024 and was only expecting Ms Greene but the area manager was also there. The complainant felt very overwhelmed, intimidated and outnumbered and was told at that meeting there was no office position in Charlestown anymore. Going forward the cash would be done ‘ad hoc’ when there was time to do it not every day and that is how it was done in every other store across the country. There was no other position in the company.
When she asked about how it would work she was told it was the manager’s job to deal with the running of it and nothing for her to be concerned about. They hadn’t come to offer her a new alternative position and they wanted to know what she was available to do but she had previously discussed this with them so they should have come with a suitable alternative position. She was told that the margins were higher in Supermac’s and there were Catering Assistant roles available in store but the margins in Spar were tighter and the wage budget wouldn’t stretch. She refused a position in Supermac’s as a Catering Assistant as she was the Cash Officer/Administrator she worked for Spar.
Nothing was offered only talk about her skill set and Ms Greene told her no one deserved the redundancy money more than the complainant and they would not hold her to the notice period if she got another job and it was agreed that she would take it as there was nothing else on offer. The complainant had 2 weeks holidays booked and it happened so quickly she felt she had no alternative and was pushed into the decision, was never offered a suitable alternative in the shop where she had worked for almost 7 and a half years.
The Area Manager told the staff she was being made redundant and he didn’t want them to worry about further redundancies as it was only her going. From that day on he didn’t speak with her about anything and she requested a reference from him and he hasn’t even had the courtesy to open the message. She was never told she could have taken 15 hours from someone else and Jacinta Greene HR manager contacted her stating that after consideration she thought it was unfair that as the complainant’s had holidays booked and approved that she’d have to use them as part of her notice period and they would be complimenting the 2 weeks. The complainant continued to feel very upset and Ms Geene checked in with her and gave a reference and she was asked was she interested in any positions that might come up in Galway Head Office. Her position as Cash Officer is still very much active and part of the daily process of the running of the shop and as she only worked 15 hours she does not see how this affected the wage budget. Evidence of Complainant She was promoted to work in the cash office and worked 5 days weekly 09:30 till 12:30 and had 2 performance reviews and asked for a pay rise. She sent an email on 15/06/2023 and it was confirmed that they were phasing out the cash officer and not replacing She did not hear anything after that and on 14/01/2024 she got an pay increase and she had always been 60c above the minimum wage and then she got her 60c above and it was back dated when she queried it. On 01/03/2024 she got a letter that said she was as at risk of redundancy and there was a meeting about it with Mr O’Donnell and Ms Green and she was not expecting Mr O’Donnell at the meeting and felt overwhelmed and was offered a role as catering assistant. She had booked holidays and 2 weeks later she finished up and made redundant. She did not get a pay increase when promoted.
Her employment ended on 07/044/2024 and she took up a new job on 13/09/2024 and did not get an updated job description after she moved to the cash office. Cross Examination of the Complainant Under cross examination she said she had a meeting in March with Ms Greene and was only offered catering job and denied she was offered retail options. She did not question the letter as everything was a panic and there were no margins in retail and she had not worked in a catering role. There was no offer made to her and the 15 hours she worked should have been taken from someone else in retail as she was there longer.
Her rate of pay had changed and she should have been offered a new contract. She confirmed she is earning more now than previously as she earns €249.75 and previously earned €199.50 and from September 2024 she had no financial loss and there were no suitable jobs from April till September and she only applied for jobs if there was something suitable and applied for about 18 roles and listed them. She disputed that a redundancy arose as the role is still carried out and she had trained all the others.
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Summary of Respondent’s Case: CA-00065910-002
Preliminary Issue: The respondent submitted that the correct name for the respondents was Mac’s Place Ltd and gave consent to change.
Substantive Issue: The Complainant commenced employment on 3rd November 2016 and received a contract of employment which was signed on 7th November 2016.. Although the Complainant’s duties changed after the commencement of her employment, her terms and conditions remained as outlined in the contract of employment issued to her on 7th November 2024.
There is a clear distinction between a contract of employment and a job description and the Terms of Employment Act relates to employer obligations regarding the contract of employment.
Mac’s Place Ltd operates a Spar Convenience shop and Fuel Forecourt in Charlestown, Co Mayo and Supermac’s also operate within the Service Station. The Complainant was employed from November 2016 until termination of her employment in April 2024 by way of redundancy due to the decline in cash payments and therefore the reduced requirement for a dedicated resource in the cash office. The Complainant was originally hired as a Team Member to work in the Respondent’s Spar shop and her contract identified her as a Team Member, which was quite general and not specific and her duties were originally as a general assistant, but in a short time she became the main cash office person.
The Complainant worked from 9.30 – 12.30pm – 5 days per week and in the early days the levels of cash counted and balanced warranted a dedicated role, albeit on a part time basis, 5 days per week and over the years the amount of cash tendered had greatly reduced across the business. Some general office duties remained across other sites, but the Respondent’s structure has moved away from having a dedicated office admin role in each location and in locations of a similar size, there are no dedicated office admin roles. The duties are covered by other employees carrying out general retail assistant duties or by the manager or supervisors on those sites.
On 15/06/2023 the Respondent’s HR Manager received an email from the Complainant regarding pay. A pay increase request was refused on the basis that the specific role in the cash office would be eventually phased out. The Respondent HR Manager met with the Complainant on 22/06/2023 and discussed the Complainant’s concerns and advised her this role would most likely continue to be phased out. The HR Manager followed up with the Complainant by email on 23/06/2023 advising that no final decision was made and that the matter would be discussed after the summer.
On 14/01/2024 the Complainant wrote a letter of complaint to the Managing Director and a Retail Area Manager. The Complainant had received an increase from €11.90 to the new minimum wage of €12.70 the previous week, and she was upset by this. She was unsure of her position and was of the belief that she should have had a new contract given her office role. In the coming days, the Area Manager for the Store where the Complainant was based, met with the Complainant and explained he had received her complaint from the Managing Director and did acknowledge the office role was under review. However, in an effort to reassure the Complainant that she was a valued member of the team he increased her rate by 60c, to bring her 60c above minimum wage as she had been previously. This was backdated to 1st January 2024 also.
On 01/03/2024 the HR Manager wrote to the Complainant outlining they would be reengaging with her in relation to her role, noted that her position was now at risk, and inviting her to a meeting scheduled for 11/03/2024 attended by the Area Manager and the HR Manager who met with the Complainant. It was noted to the Complainant that in the event that her role was made redundant, there would be alternative options available to her to allow her to remain in the Respondent’s employment. These options included a retail assistant role and a catering assistant role. The Complainant was adamant that she did not want to work in catering side of the business and stated that she did not think she would be able for the retail assistant role as she would have to carry stock up and down the stairs and that she didn’t think she could. The Complainant also noted that she would not be available to work evening shifts in any proposed alternative role. At this meeting, the Complainant stated that she would take a redundancy payment as opposed to any alternative role on offer. It was noted that the Complainant did not want to consider alternatives and as the Respondent did not have any other options to put to her, the redundancy of her role was confirmed.
On 12/03/2024, the HR Manager wrote to the Complainant setting out her redundancy calculation of €3260.34 and her outstanding annual leave balance. This letter also confirmed the notice period applicable to her and confirmation that her last date of employment would be 07/04/2024. As the Complainant had already planned to take annual leave from 25th March to 7th April (Two weeks – 30 hours), the Respondent added on a further two weeks’ pay to her holidays (30 hours) so that her holiday was not part of her notice. All holidays were paid. The Complainant acknowledged this email on 15/03/2024 confirmed that payments had been made and asked for a reference, which was provided. On 17/04/2024 the HR Manager contacted the Complainant with details of FETCH courses and enquired if she was interested in being considered for office roles in Head Office in Galway. The Respondent received no response to this email.
Section 6 of the Unfair Dismissals Act 1977 provides the legal framework for complaints of unfair dismissal and lists the grounds where dismissal of an employee shall not be deemed to be unfair including the redundancy of the employee. In the instant case, the work that the Complainant carried out had significantly diminished to the point where a standalone role for these tasks was no longer viable. These tasks are carried out as part of the duties on the management team or where required, by retail assistants.
Case law cited included Smith v Leddy UDD 74/2019 . The complainant was not unfairly dismissed and the role ceased to exist due as a result of a significant decline in cash payments and the complainant was offered alternative roles within the business but decided to consider these. The Complainant was issued notice of redundancy and was paid for this period and received her statutory redundancy payment on termination of her employment.
Evidence of Mr Damian O’Donnell Money was tight and the role of a cash officer was gone and they did not need the role. He had spoken to other managers and with less cash on the premises and others had machines to count what cash there was and it was more a day to day role and there was no formal notice given to her just an explanation. A letter was sent and he clarified to her that she is a valuable member and works well and he had looked at ways of smarter labour and was trying to figure it out and they increased her wage to above minimum wage. The following March 2024 they told her the role was done away with as they had gone from 70% cash to 30% cash and her role was not going to be sustainable in the long terms. When she was off or on holidays the general assistants did the role and it is now part of their role. Other areas were discussed that she could move to and she did not want to work for Supermac’s and did not want a retail role and there had been an offer of a retail role in the Spar. She may be asked him about working in head office.
Cross Examination of Mr Damian O’Donnell There was a meeting with her and an email sent 27/01/2024 and he had told her they were phasing out the role. The role involved daily reports and counting cash and banking of cash and balancing of safe and it might take 2 hours or 2 hours 15 minutes. There were locations that do not have a cash person. His role is area manager supporting managers and he joined in 2018. There was a performance review in 2023 and she was valuable and some stores were not using a cash person and to reassure her and for her loyalty she got the increase and a meeting was set up to inform her. Ms Green took the lead at the meeting and Ms Greene talked about other roles and he knew the complainant had experience and they asked her about the Supermac’s role and the retail. If someone moves to salaried they get an updated contract but this was not the case and she did not recall the complainant getting a new job description. Evidence of Ms Jacinta Greene She met her the complainant on 22/06/2023 and she emailed after as she felt undervalued and met her off site and discussed her concerns and the role and they were not investing in the cash office. The manager had fought hard to keep the complainant’s role. She felt that the decision made was very personal to the complainant and they tried to maintain a balance between phasing out the roles and her role and they made it clear that when they knew more they would be in touch. She had originally started in retail and it evolved as she was honest, trust worthy and reliable and they hoped she would stay. A review of labour costs showed it was not sustainable to keep her and they hoped that she would stay with them and that was why she got an increase and she had restrictions working 09:30-12:30 and she was also a carer and she was offered a role in Supermac’s or in the Retail and she said redundancy was the preferred option. |
Findings and Conclusions: CA-00065910-002
Preliminary Issue: The respondent submitted that the respondent’s name should be changed and the complainant agreed and as parties were not prejudiced by same I gave agreement to amend the respondent to Mac’s Place Ltd. Substantive Issue: The complainant submits that she received a contract of employment when she commenced employment but did not receive details of amended terms when she took up position in the cash office. The respondent submits that the she received a contract of employment on commencement.
3.—(1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say— (a) … (b) … (c) … (d) … (e) … (f) … (fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,] (g) … (ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,] (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, (i) … (j) any terms or conditions relating to paid leave (other than paid sick leave), (k) any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave, and (ii) pensions and pension schemes, (l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, (m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they F9[were made,] (n) the training entitlement, if any, provided by the employer, (o) in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 20085 on temporary agency work), when and as soon as known, and (p) if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of — (i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours, (ii) the reference hours and days within which the employee may be required to work, and (iii) the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and (q) where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.
I note that the complainant did receive a contract of employment and I also note that the complainant’s duties changed as did her job title from that of Team Member to that of Office Co-ordinator as set out in their letter of “risk of redundancy” dated 01/03/2024. I further note that the complainant requested updated terms of employment and did not receive them. I find in all the circumstances that the complaint is well founded and I award the complainant €450. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00065910-001 I find that the complainant was procedurally unfairly dismissed and in all the circumstances I award the complainant €800 gross which I find fair and reasonable. CA-00065910-002 I find in all the circumstances that the complaint is well founded and I award the complainant €450. |
Dated: 13-04-26
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Statement of terms, redundancy, unfair dismissal, procedure |