Case Number: ADJ-00030672. Workplace Relations Commission

• Judgment Date: 17 August 2022
• Year: 2022
• Hearing Date: 20 August 2021
• Docket Number: ADJ-00030672
• Court: Workplace Relations Commission
• Respondent: Nestle (Ireland) Ltd

Procedure:

On the 11th November 2020 and the 31st May 2021, the complainant referred complaints to the Workplace Relations Commission. The complaints were scheduled for adjudication on the 20th August 2021, and this was held remotely.

The complainant represented herself. The respondent was represented by Michael Doyle and Tara Smyth of A&L Goodbody Solicitors. Two witnesses attended for the respondent: Patricia Malone and Andrew Burke Hannon.

In accordance with section 41 of the Workplace Relations Act, 2015 and section 79 of the Employment Equality Acts, 1998 - 2021following the referral of the complaints 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.

Background:

The complainant worked for the respondent from May 2011 to the 4th August 2020. She was paid €2,800 per month. The complainant asserts that she was not informed of changes to her contract and that she had been discriminated on grounds of gender and family status. The respondent denies the claims.

Summary of Complainant’s Case:

The complainant outlined that her contract of employment was terminated on the 4th August 2020. The complainant was not disputing the termination. She was paid six weeks of notice pay and 24 weeks of sick pay, but she was entitled to six months of notice pay and 42 weeks of sick pay. This was stated in the contract of employment she signed in May 2011. The complainant outlined that her maternity leave commenced on the 10th December 2018, and she had been due to return to work on the 10th June 2019. She was not fit to work at this stage so went on sick leave. The complainant had been in touch with HR and occupational health about whether she could return. She did not avail of additional maternity leave. The complainant’s first maternity leave ended in December 2014. On the 28th April 2016, her then manager, Nuala Barry approached the complainant to say that she had not signed a new contract of employment. The complainant was told to sign a new contract, which she was told provided increased annual leave and increased daily working time. The complainant said that she signed a one-page document, which stated that she would receive a letter setting out all the changes. The complainant said that she never received this letter and only saw the correspondence on foot of her GDPR request after her dismissal. The complainant confirmed that she did not receive the letter dated the 28th April 2016 and had only seen the single page in the 2016 contract. The complainant outlined that she went on a second maternity leave in 2017, returning in January 2018. The complainant outlined that in September 2019, Patricia Malone, HR Business Partner mentioned that termination was on the cards. The complainant was still receiving treatment at this stage. In February 2020, occupational health had asked for her GP file, and she agreed to this. In June 2020, Ms Malone said that she had given it a year and that the respondent wanted to hold a medical hearing. The complainant appreciated that the respondent had given someone else a rolling contract to cover her absence. The complainant said that in September 2019, she received a letter from Andrew Burke Hannon, line manager to say that her sick pay entitlement was ending. She rang HR and emailed an ‘askHR’ email address to challenge this. She received an automated response. The complainant supplied a copy of this email, dated the 3rd September 2019. She stated in the email that she was entitled to 42 weeks of sick pay. She later said that she did not have access to the work system as she was on sick leave. She sent this first email on the 3rd September and emailed on the 12th September to say that she did not have access to the work system. The complainant said that her sick pay ceased on the 24th September 2019, and she went onto Illness Benefit. The complainant outlined that the termination letter said that she must respond within 5 days. She emailed the respondent on the 8th July 2020 to raise the notice and sick pay issues and relied on her contract of employment. The complainant said that Andrew Burke Hannon sent her the contract they had on file for her, which was the 2016 contract, and which referred to 2014 as her start date. She had not seen the full document before. In cross-examination, the complainant confirmed that she had seen a solicitor in September 2020 but completed the complaint form herself. She confirmed that she had lodged a complaint pursuant to the Terms of Employment (Information) Act but said that she was also claiming notice pay and sick pay. It was put to the complainant that the only initial complaint she had made had been pursuant to the Terms of Employment (Information) Act. It was put to the complainant that she had cited the following in the complaint form: ‘Therefore my complaint falls under the title of the terms and conditions of employment. I was not notified in writing of a change to my terms of employment under the terms of information act 1994.’ The complainant accepted that this was a claim but that she was also claiming notice pay and sick pay. The complainant accepted that she had not referred to either a Payment of Wages claim or a Minimum Notice & Terms of Employment claim. It was put to the complainant that in correspondence she had said that the date she signed the document was the 24th April, but she was now saying that it was now the 28th April, and this showed that her recollection was not 100%. She replied that she was 100% sure. It was put to the complainant that she had met Patricia Malone rather than Nuala Barry on signing the document; she replied that she clearly remembered signing the document and that she could not remember meeting Ms Malone at the signing of the document. Commenting on the internal HR emails, the complainant said that they were not evidence of Ms Malone contacting her. It was put to the complainant that the emails were corroborative evidence of Ms Malone dealing with the new contract; the complainant replied that the emails did not disprove her recollection. The complainant said that she was made feel that it was her fault that she had not signed the document and she was anxious to sign it. She signed the document at Nuala Barry’s desk. It was put to the complainant that the entire contract was sent to the UK; she replied that it was on receiving the personnel file that she received the full contract. It was put to the complainant that it was clear from the signature block that this was part of a wider contract, and it was put to the complainant that there was no reference in the last page to annual leave, so why could she think that it was all about annual leave. The complainant accepted that annual leave was not mentioned on the page that she signed, and she had trusted the respondent that this was all about annual leave. The complainant said that she did not read the document before she signed it and was told that this was aligning with the UK and increasing her annual leave to 25 days. It was put to the complainant that it was not credible that she had not read the document, especially as it was not all about annual leave, for example the reference to intellectual property rights. It was put to the complainant that her entitlement to sick pay exhausted on the 24th September 2019. The complainant said that she had challenged this at the time. The complainant accepted that she had made no allegation against the line manager that he had discriminated and harassed her during the capability process in 2020. She said that her allegations related to 2018. In closing, the complainant outlined that both pay issues arose from her contract of employment and this was why she pursued a complaint pursuant to her contract and the Terms of Employment (Information) Act. She said that the letter should have addressed changes to the contract. She had wanted the respondent to accept that her 2011 contract still stood. She said that all her encounters with HR occurred in a meeting room and not at a desk. She said that she would have accrued annual leave entitlements during a notice period and kept private health insurance cover.

Summary of Respondent’s Case:

In submissions, the respondent denied that there had been a contravention of the Terms of Employment (Information) Act. It outlined that the complainant was provided written particulars of her employment on the 9th May 2011. The respondent later introduced a level framework whereby employees were assigned a job grade within the framework and corresponding terms and conditions. This required changes to numerous employment contracts, including the complainant’s, aligning terms and conditions of employment. The revised document was supplied to the complainant on the 28th April 2016. The respondent submitted that the complaint pursuant to the Terms of Employment (Information) Act was out of time as it was not made...