Complainant

Respondent

Parties

Niall  Finnegan

Tesco Ireland

Representatives

Dermot Murphy James H Murphy & Son

Niamh Ní Cheallaigh Ibec.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00061967-001

04/03/2024

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

CA-00061967-002

04/03/2024

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

CA-00061967-003

04/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00061967-004

04/03/2024

The complainant is employed by the Respondent as a Customer Experience Manager; employment commenced in January 2002 and is ongoing.

This complaint was received by the Workplace Relations Commission on 4th March 2024.

CA-00061967-001

Penalisation Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

Facts.

The Complainant has worked for the Respondent for in excess of 22 years. His latest contract of employment is dated the 3rd of February 2017. He moved to the Dundalk branch on the 19th of May 2019.

He has been subject to historical bullying issues with the store manager Gary Redmond. After an incident in late 2022 when he received an injury, he was further subjected to bullying by another manager of his, Ian Myles, and made a complaint about this bullying to Mr Redmond who met him on the 17th of June 2023. He did not accept that the Complainant was being bullied. He notes that he was supplied with a note of this meeting during the grievance, but it is not an accurate description of what happened at that meeting. Further it has not been signed by the Complainant which should have been noted on same, if it was accurate, as is company policy. He further met Mr Myles on the 26th of June, and it was clear that there was going to be no change in the behaviour he had to suffer. He could take no more of the stress from supressing the effects of this bullying behaviour and disclosed same to his family and GP on the 28th of June. His GP indicated that he was suffering from stress caused by bullying and should not return to that environment.

He contacted Mr Myles on the 30th of June and advised him, as acting store manager in the absence of Mr Redmond, that he was certified unfit for work due to the bullying of him by the said Mr Myles and Mr Redmond. He thus reported a safety issue to the acting store manager. He was asked to bring a certificate in for the 3rd of July which he did –– which discloses contemporaneously the work-related safety issue that had been reported.

Originally, he was paid sick leave but when Mr Redmond returned from holidays on the 8th of June he refused to pay sick pay to the Complainant. This is the penalising decision and the refusal to pay the sick pay is the detriment. Mr Redmond’s letter of that date suggests he had a discretion to refuse it though this is not in the Complainant’s contract. Further he alleges in that letter an investigation was ongoing, though this is disputed as Hub queries are not treated as misconduct issues, and further shows that the application of the discretions was treated as a penalty, even if there was a discretion which is not the case. The Complainant made a complaint about this to the Respondent on the 26th of July 2023 after having made a bullying complaint on the 14th of July 2023. Neither have been upheld to date and he has not received any sick pay since the 29th of June 2023 though he is still certified as such.

His contract and the company policy stipulate a period of 8 weeks sick pay which has been denied the complainant this denial is directly related to the complaint that the Complainant made about Mr Myles to Mr Redmond in June.

The employer alleges that the pay was not paid because the contract reserved the discretion to pay sick pay to the manager and in this case the discretion was refused because of an alleged misconduct complaint. However, the misconduct is a fiction based on a normal Hub request for confirmation that cctv showing the Complainant taking certain produce out to the car park was for the benefit of a customer, which it was. This manipulation of this standard daily request into something representing serious misconduct, which the employer accepts was not mentioned in the June meeting in the finding on sick pay contradicting that allegation, is further, emphatic proof that the intent of the decision to refuse pay was to penalise as a result of the safety issue that was reported. The refusal to pay sick pay is a penalty because the contractual term is 8 weeks’ pay as is the company policy. Refusing to pay the contractual term is a detriment.

Law.

Per section 27 where a safety issue is reported to an employer and an employer acts in respect of any term or condition of the employment to the detriment of an employee as a consequence of that report ( s27(3)(c) ) then the employer will have penalised the employee. As a result, the WRC shall require the employer to pay compensation of such amount as is just and equitable in the circumstances if the detriment is caused by the actions of the employer – there must be a causal link.

In the instant case a complaint is made in June the sick pay period is commenced on the 29th of June and when the store manager returns from holidays on the 8th of July the penalty is imposed. Given the fact that the employee was absent for the intervening period there can be no other cause. Finally, the burden of proof is a shifting one

i.                 Having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant's dismissal

once the employee proves facts from which the penalisation can be assumed the onus is on the employer to establish that the cause of the detriment is not the act of penalisation. In this case the burden to establish the misconduct claim rests with the Respondent if that is the alleged cause of the penalisation.

Redress Sought

Compensation for 8 weeks’ pay which amounts to the sum of €6,530 and a further sum in compensation  for the harm that was caused to the Complainant for not being able to pay bills during that two month period as the consequential  losses suffered and harm caused are entitled  to be received by the Complainant as it is just and equitable for him to be so compensated.

Further as the applicable legislation is derived from European Law Van Colson principles apply to the award of damages; Van Colson which this court has applied as set out below the award of damages must be a real deterrent.

ii.                In the well-known Von Colson case, referred to by Counsel for the Complainant, the CJEU made it clear that where a right which is derived from the law of the Communities is infringed the sanction for breaches must be effective, proportionate and dissuasive and must provide a real deterrent against future infractions. However, the Court also pointed out that the redress must be proportionate and appropriate

Timing of claim.

It is submitted that the time for this claim is within six months of the date of the appeal against the grievance outcome which occurred on the 24th of January 2024 some six months and 2 weeks or so after the sick pay decision was made. If however the adjudication officer is of the view that the date for the making of the claim is 6 months from each of the weeks in question ( starting  on the 29th of June 2023 ) then the Complainant wishes to make an application for to extend the time for a period up to the date of the making of this complaint ( which is well within the 12 months extended period ) due to a reasonable cause per section 41(8) – in fact there are three such causes;

1. The Complainant was certified sick and unfit to work. He remains certified unfit for work at the Respondent employer as of the date of this application and still undergoes therapy in relation to same

2. The Complainant undertook a grievance in relation to pay in a timely fashion which he believed would result in his contractual terms being honoured within a timely manner. In fact, this delay in the grievance and the appeal took six months and 2 weeks to conclude thereby taking up all the allotted time for incepting a complaint to the WRC even though the Complainant had a legitimate expectation that the appeal may result in his being paid his sick pay.

3. The Complainant was unable to pay for legal advice, at least in part, due to the financial circumstances that constrained him as a result of the failure to be paid his sick pay. He was not even able to pay for medical assistance on occasion in this period

CA-00061967-002

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

Facts.

This is an alternative claim to claim no 1 in the event that penalisation is not proven. However, the facts remain the same- the contract of the Complainant provides for 8 weeks sick pay as does the Respondent employer’s policy for sick leave, both accompanying these submissions. The Respondent accepts that it was not paid but claim that this was due to a term of a contract that predates the current contract. The amount not paid is nonetheless wages not paid which constitutes a deduction from the wages lawfully due to be paid to the Complainant as per section 5(6) of the Payment of Wages Act 1991

 Law

Section 5(1) of the Payment of Wages Act 1991 applies. There is no provision in the contract of employment of the Complainant that permits discretionary deductions from wages. The Complainant can confirm in evidence that he did not consent in writing to this deduction. The company policy reinforces that fact and even the decision to refuse the 3-day statutory pay by the Respondent makes it clear that the scheme is more favourable and as such it is intended that this applies to the contract of the Complainant. This section has therefore being breached.

Timing of claim.

Please see the submissions on the timing of this claim which are equally submitted in relation to this alternative claim.

CA-00061967-003

Terms and Conditions of Employment Complaint seeking adjudication by the Workplace Relation Commission under section 7 of the Terms of Employment (Information) Act, 1994. 

Facts

The contract or terms and conditions of employment that the Complainant has do not relate to his current position of employment

Law – section 5(1) whenever a change occurs in any of the particulars of the statement furnished by the employer the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, , …

Redress Sought – per section 7(2)(d) – 4 weeks wages or €3,265.03

CA – 00061967 – 004 – A complaint submitted under the Sick Leave Act 2022.

The complainant states that he was not paid his statutory sick pay of 3 days because he was told that the Tesco Sick Scheme offered a greater benefit- Tesco then refused to pay him that greater benefit - which he seeks compensation for in the above claims. Without prejudice to those claims in the event that they are not successful the Complainant seeks the payment of the statutory sick pay which was denied to him as it was stated on the Grievance on the issue and the subsequent appeal ( which only resolved on the 29th of January 2024 ) that the scheme offered a greater benefit though they offered no benefit to the employee in this case. Section 9 cannot apply. The Complainant  believes the correct date for the failure is the 29th of January 2024 but if the earlier date is found ( from July 2023 ) to be the applicable date that the claim arose then the Complainant  applies  to extend time on the basis that it is reasonable as he waited for the grievance process and appeal to be exhausted and this only occurred on the 29th of January 2024 and secondly he was on extended sick leave and denied all sick benefits pursuant to the company's sickness policy.

Background to the Claim

·        On 9 June 2023 there was an allegation of theft made against the Complainant. It was alleged that the Complainant had selected items from the shop floor, placed them into a blue crate and left the store without paying for them. Due to the serious nature of the allegation against the Complainant he was met with twice in June 2023 by way of a preliminary investigation.

·        The Complainant went out on sick leave on 3 July 2023 while this investigation process was still ongoing citing work related stress.

·        On 8 July 2023 Mr Gary Redmond, Store Manager, on his return from annual leave contacted the Complainant in relation to his sick pay to advise that as the Complainant was involved in an active investigation where serious misconduct was alleged, he wasn’t entitled to receive sick pay.

·        On 14 July the Complainant emailed Mr Redmond querying why he wasn’t receiving sick pay and requesting a copy of the company’s sick pay policy.

·        On the same day the Complainant raised an official grievance to Ms Sharon Wallace, Colleague Relations Partner. In his grievance he raised a number of allegations including an allegation that he had been bullied over the past 14 months by two of the Respondent’s senior colleagues; Mr. Redmond and Mr. Myles Deputy Manager.

·        On 18 July, Ms Wallace wrote to the Complainant whereby it was noted that he was still on sick leave. Ms Wallace advised that if his doctor confirmed that he was fit to engage with the Grievance process while absent that she would organise a meeting with him.

·        On 20 July Mr Redmond sent an email to the Complainant (in response to his email from the 14th), he referred to his letter from the 13th and reiterated why the Complainant’s sick leave was being classified as unpaid.

·        On 26 July the Complainant raised another grievance in relation to the cessation of his sick pay.

·        On 28 July, Ms Wallace wrote to the Complainant, and she again noted that he was still on sick leave and requested that he get his doctor to confirm that he was fit to engage with this process.

·        The Complainant informed the Respondent that his doctor had confirmed that he was fit to engage in the grievance process on 8 August 2023.

·        On 11 August Ms Wallace emailed the Complainant inviting him to a grievance meeting on 15 August. Attached with this invite was a copy of the Respondent’s grievance procedure and their bullying and harassment policy.

·        On 13 August the Complainant emailed Ms Wallace requesting that each of the grievances be dealt with separately. The Respondent after consideration agreed to do so

·        The grievance investigation meetings were held on the 15 and 16 August. After the meeting the Complainant sent Ms Wallace additional documents and on 20 August the Complainant again sent additional statements in relation to his allegations.

·        Ms Wallace proceeded to interview the 17 witnesses as well as the two senior members of staff who were named by the Complainant.

·        The Complainant himself was also invited to an additional grievance meeting that was meant to take place on 12 September but was rescheduled (due to the Complainants availability) to 13 September.

·        On 25 September Ms Wallace sent the meeting notes and relevant policies to the Complainant along with an invitation to a follow up call. The Complainant sent a photo to Ms Wallace on 26 September with what he alleged was his updated contract of employment.

·        On 12 October the Complainant attended another grievance investigation meeting at the Complainant’s request and on 26 October he requested an outcome in relation to the sick pay grievance that he had raised.

·        At the grievance outcome meeting on 3 November 2023 the Complainant was informed that the grievance in relation to the sick pay had not been upheld.

·        The Complainant appealed this decision on 14 November alleging that the grievance report didn’t include a comprehensive review of his case and overlooked the key provisions related to sick pay that were included within his contract.

·        On 26 November Ms Wallace invited the Complainant to another grievance investigation meeting in relation to his bullying complaint.

·        The Complainant submitted his resignation on 27 November to which the Respondent replied setting out that they wouldn’t be accepting it and asked the Complainant to engage with the ongoing processes that were being conducted in order to resolve his concerns.

·        On 15 December 2023, the grievance appeal meeting was held in relation to the sick pay grievance. Mr Gerald Lynch Store Manager Longford was appointed as the appeals officer.

·        Separately, in relation to his grievance regarding the bullying allegations, it should be noted that due to the sheer number of witnesses and their availability that interviews spanned from August to November. Following the completion of the interviews additional investigation meetings were held with the Complainant on 4, 12 and 19 December.

·        The Complainant received Mr. Lynch’s grievance appeal outcome at a meeting on 26 January. Mr Lynch did not uphold the appeal, stating that the decision to not pay sick pay due to the active investigation was in line with the Respondent’s practice and therefore just.

·        The Complainant received the outcome to the bullying grievance on 29 January 2024. The allegation of bullying against Mr Redmond was not upheld. The Investigator of this grievance recommended that all parties should attend mediation in addition to further recommendations put forward.

·        In response to this grievance outcome on 12 February the Complainant rescinded his resignation and asked for an extension of the appeals window in order to review the documents, which the Respondent agreed to.

·        The Complainant lodged his appeal on 19 February citing 13 grounds of appeal.

·        The appeal hearing was assigned to a senior manager within the Respondent Company. This process yet to come to a conclusion.

·        The Complainant lodged his complaint to the WRC on 3 March 2024.

Respondent’s Position

CA- 0061967-001 Claim under the Safety, Health & and Welfare at Work Act 2005:

·        Section 27(3) of the Safety, Health & and Welfare at Work Act 2005 sets out that “An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert,  leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.”

·        The Complainant alleges that he has been penalised under this Act because he made a bullying complaint against Mr Redmond. It should be noted, Mr Redmond confirmed to the Complainant that he would not be paid sick pay on 8 July 2023. The Complainant did not lodge his bullying complaint against Mr Redmond until 14 July 2023 therefore it is clear that penalisation simply didn’t take place.

·        Furthermore, Section 27(2) describes penalisation as:

“a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

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

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

(e) coercion or intimidation.”

·        The Complainant has not had any of the above happen to him and therefore even if he had made his complaint against Mr Redmond before the decision to not pay him sick pay had been made, it is the Respondent’s position that penalisation still hasn’t occurred.

CA- 0061967-002 Claim under the Payment of Wages Act 1991:

·        The Respondent refutes the claim under the Payment of Wages Act in its entirety as no unlawful deduction of wages has occurred in line with the renumeration stated in the Complainant’s contract. At no point has the Complainant received a salary below his contractual salary. In making this statement the Respondent is taking into account not only the Complainant’s clear written contract of employment, but also the operation of this contract in reality and the established norms of the Respondent more generally.

·        The Complainant is arguing that there was a deficiency in payment of his wages on the period in question. The Payment of Wages Act, 1991, under section 5(6) states:

“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, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

·        Thus, the important element to establish is what were the wages “properly payable” to the employee on “that occasion”. The Respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment. No deduction as defined in Section 5 of the Act has been made. Accordingly, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to be heard.

·        The Respondent operates a sick pay scheme which is a benefit to colleagues that runs from 1 January to 31 December and entitles eligible employees to a maximum of 8 weeks. However, this is discretionary as confirmed in the Complainant’s contract of employment where is states “In the event of verified absence through illness, sick pay will normally be paid to you for a period not exceeding 8 weeks per annum……Such payments are at the discretion of your Manager.”

·        The Complainant was advised on 8 July 2023, that in line with the discretionary element of the policy his absence would be treated as unpaid.

·        The decision not to pay the Complainant sick pay was reasonable and expected in the circumstances and is in line with the Labour Court’s stance on such matters. In the case PW/20/48 (Appendix 26) the Court found that “the Respondent did not inform the Complainant at any stage that it had taken a decision to exclude him from its Sick Pay Scheme” and therefore determined that he was entitled to benefit from the scheme. In the instant case the Complainant was advised on 8 July 2023 that he would not be entitled to benefit from the sick pay scheme.

CA- 0061967-003 Claim under the Terms of Employment (Information) Act 1994:

·        The Complainant’s contract of employment is at Appendix 2 and is dated 2014. It is accepted that he has since moved store, and this change was not confirmed in writing to the Complainant

·        It is not accepted that the Complainant was issued with the contract dated 2017 as the Respondent contends that all management contracts are standard and issued to include the clause “Such payments are at the discretion of your Manager.”

CA- 0061967-004 Claim under the Sick Leave Act 2022:

·        Section 9 (1) of the Sick Leave Act 2022 outlines the following:

The obligations under this Act shall not apply to an employer who provides his or her employees a sick leave scheme where the terms of the scheme confer, over the course of a reference period set out in the scheme, benefits that are, as a whole, more favourable to the employee than statutory sick leave.

(2) In determining, for the purposes of subsection (1), whether a sick leave scheme confers benefits that are, as a whole, more favourable than statutory sick leave, the following matters shall be taken into consideration:

(a) the period of service of an employee that is required before sick leave is payable;

(b) the number of days that an employee is absent before sick leave is payable;

(c) the period for which sick leave is payable;

(d) the amount of sick leave that is payable;

(e) the reference period of the sick leave scheme.

·        It is the Respondent’s position that the obligations under the Sick Leave Act 2022 do not apply as the Complainant had access to a sick pay scheme that as a whole, is more favourable than what is provided for under the Act.

·        The Respondent’s sick pay scheme (Appendix 25) provides the following benefits to employees:

•                 8 weeks’ pay.

•                 Paid full pay.

•                 Payment after day 3 of absence.

•                 Sick pay scheme runs from 01 January – 31 December.

•                 Eligible to employees who have completed probation (currently 6 months).

·        The Respondent cites the decision of Karolina Leszczynska v Musgrave Operating Partners Ireland ADJ-00044889 (Appendix 27). In their decision, the Adjudication Officer found that:

‘There can be no arguing that eight weeks’ paid sick leave is more beneficial than three days and pay at 100% of wages is more beneficial than 70%. With the respondent’s scheme, the policy of not paying sick pay for the first three days of absence is a disadvantage for an employee who is absent for a maximum of three days once in 12 months. It is my view that this is outweighed by the policy of waiting until the fourth day, and paying sick pay to employees who are absent for up to eight weeks in 12 months. I find also that the eight weeks’ sick pay outweighs the requirement to have six months’ continuous service, compared to the 13 weeks required under the Act’.

‘I have considered the employer’s scheme, and I have compared its benefits with those of the Sick Leave Act. It is my view that the duration of paid sick leave in the employer’s scheme, the amount of sick pay, the 26 weeks’ service requirement and the three-day waiting period combine to provide benefits that, on the whole, are more favourable to employees than the benefits provided in the Act. In summary, while the complainant’s case is not unreasonable, and her claim raises an important legal point, I find that the respondent’s scheme is encompassed by section 9(1) of the Act and that its benefits are, as a whole, more favourable to the employee than statutory sick leave’.

·        In addition, the Respondents' sick pay scheme has been proven to be more favourable in a recent case ADJ-00047574 (Appendix 28) whereby the Adjudicator found that “...there can be no doubt that the sickness pay scheme in this workplace is vastly better than that provided for by Statute.”

Conclusion

Based on the detailed arguments set out above the Respondent respectfully requests the Adjudication Officer finds that the claims taken are without merit and therefore must fail, and to find in favour of the Respondent.

Time Limits.

As in any form of legal proceedings, time limits apply to the initiation of claims before the Workplace Relations Commission and there is time for the initiation of an appeal to the Labour Court. In the case of complaints under employment and equality legislation the time limits are much shorter than those applicable to proceedings that come before the ordinary courts. The purpose of these time limits is to ensure that complaints are initiated within a reasonable period after the events giving rise to them occur and that employers are not expected to defend claims or complaints long after those events have occurred.

The standard time limit for the initiation of complaints across all employment and equality enactments is now six months from the date on which the event or omission giving rise to the claim occurred. This can be extended by an Adjudication Officer, or by the Labour Court on appeal, by a further six months where reasonable cause for the delay is shown.

The six-month period includes the date on which the event giving rise to the claim occurred and the six months is counted including that date.

Extending Time.

An application for an extension of time can be made to the Director General of the Workplace Relations Commission or, on appeal, to the Labour Court. The maximum extension that can be obtained is a further six months – giving a total maximum time limit of 12 months.

The standard which must be met in order to obtain an extension, that of reasonable cause, is not particularly high. It should never be assumed that an extension will be granted, and there are many cases in which an extension was refused where an insufficient reason was relied upon for the delay.

The onus is on the applicant for an extension of time to show that there are reasons which both explain the delay and which afford a justifiable excuse for the delay. The excuse offered must be reasonable and it must be shown that the reason relied upon was the actual cause of the delay. Regards will also be had to the question of whether the Respondent suffered any prejudice in consequence of the delay.

In the instant case the complaint was received by the Workplace Relations Commission on 4th March 2024. The cognisable period is therefore from 5th September 2023 to 4th March 2024, if an extension of time is granted the maximum period of time goes back to 4th March 2023.

As per complaint form submitted by the Complainant, he clearly states the following in relation to CA-00061967-001.

Copy letter dated 14th July 2023

Dear Sharon,

After unsuccessfully informally trying to address ongoing poor behaviours and practices that I have been experiencing on an ongoing basis over the past fourteen months, from and by the two named colleagues below, I find myself unfortunately left with no alternative options, but to make a formal complaint to yourself, in the form of an official grievance.

I am writing this letter to formally lodge a grievance regarding workplace bullying that I have been subjected to at Tesco Dundalk. I believe that it is essential to bring this matter to your attention as it has significantly impacted my wellbeing and ability to perform my duties effectively, to the point, where I have now been medically declared unfit for work due to the above, by a general practitioner.

I have been a dedicated employee at Tesco Ireland for twenty-two years, and until recently, I have always felt valued and respected in the workplace. However, over the past fourteen months, I have experienced persistent and targeted bullying behaviours from two senior colleagues, named Gary Redmond and Ian Myles. The incidents of bullying that I have encountered include, but are not limited to:

1. Verbal abuse

2. Blatant breaches of my GDPR

3. Isolation

4. Unfair workload

5. Lack of training and upskilling

6. Health, Safety and Wellbeing negligence

I believe that this behaviour is not only detrimental to my wellbeing, but it has also undermined my overall productivity, reputation and job performance. I kindly request that a thorough investigation be conducted into these allegations of workplace bullying.

I am willing and able to provide necessary evidence, witnesses and statements to support my claims.

Additionally, I would appreciate your guidance and support in resolving this matter promptly and effectively. As an employee, I have a right to work in an environment free from harassment and bullying. I trust that Tesco Ireland will take appropriate action to address this issue and ensure such behaviour is not tolerated within the organisation. Thank you for your attention to this matter. I look forward to a prompt resolution and a workplace environment that promotes respect, professionalism and inclusivity.

On the 14th of July 2023, though still certified as sick, I incepted a complaint in relation to bullying by Mr Myles and Mr Redmond • After this date Mr Redmond then decided that I was not to be paid sick leave – either the 3 sick days pursuant to the Sick Leave Act 2022 or the companies sickness policy which gives a period of 8 weeks sick pay or extended leave which is an option pursuant to the Respondent’s sick policy • This refusal to pay is clearly related to the complaint I made against Mr Redmond and is contrary to my terms and conditions of employment and company policy as set out above and obviously Law in respect of the first three days.

The Respondent submission on this point reads as follows:

·        The Complainant alleges that he has been penalised under this Act because he made a bullying complaint against Mr Redmond. It should be noted, Mr Redmond confirmed to the Complainant that he would not be paid sick pay on 8 July 2023. The Complainant did not lodge his bullying complaint against Mr Redmond until 14 July 2023 therefore it is clear that penalisation simply didn’t take place.

The decision not to pay sick pay was made before the lodgement of the complaint by the Complainant. The respondent is correct in stating that this is not penalisation. This complaint is not well founded.

CA-00061967-002

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

This complaint relates to the non-payment of sick pay to the complainant.

The Respondent submitted a comprehensive written submission. Page 112 of this submission relates to Sickness Policy – Republic of Ireland 2022 and reads as follows:

Retail and Customer Engagement Centre.

For senior team and line managers (retail) and colleagues, team leaders and managers in the Customer Engagement Centre who have completed their probationary period, sick pay will be paid up to a maximum of 8 weeks in any sick leave year. This is conditional upon the provision of medical certificates and compliance with procedures for notification. For other colleagues please refer to the sick pay arrangement available from your line manager in your store.

I note that this document clearly states that sick pay ‘will be paid’ and it does not state ‘may be paid’.

I find that this complaint is well founded and now order the Respondent to pay sick pay to the complainant for the remainder of the eight weeks which I believe to be 7 weeks sick pay. Such payment should be made within 42 days from the date of this decision.

CA-00061967-003

Terms and Conditions of Employment Complaint seeking adjudication by the Workplace Relation Commission under section 7 of the Terms of Employment (Information) Act, 1994. 

Law – section 5(1) whenever a change occurs in any of the particulars of the statement furnished by the employer the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, , …

In reply to this complaint the Respondent has stated the following:

·        The Complainant’s contract of employment is dated 2014. It is accepted that he has since moved store, and this change was not confirmed in writing to the Complainant.

I find this complaint well founded and order the respondent to pay to the complainant compensation in the amount of €1,632.52 (two weeks’ pay). Such payment should be made within 42 days from the date of this submission.

CA – 00061967 – 004 – A complaint submitted under the Sick Leave Act 2022.

 The decision on CA – 00061967 – 002 in favour of the complainant closes this complaint.

Please see above