Case Number: UD992/2015. Employment Appeals Tribunal

• Judgment Date: 01 December 2017
• Docket Number: UD992/2015
• Court: Employment Appeal Tribunal (Ireland)

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF: CASE NO.

Siobhan O’Driscoll - Claimant UD992/2015

Against

Nugent Foods Limited - Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Ms. M. Levey B.L.

Members: Mr. J. O'Neill

Mr M. O'Reilly

heard this claim at Dublin on 24th Aug 2016, 10th Nov 2016 and 11th Nov 2016

Representation:

Claimant: Sharon Dillon Lyons B.L instructed by Cogan-Daly & Co, Solicitors,

Brighton House, 50 Terenure Road East, Rathgar, Dublin 6

Respondent: Kevin Callen B.L. instructed by Mr Shane O'Brien, Anthony Joyce, Solicitors, Oliver Bond Street, Dublin 8

This claim was heard with UD 995/2015 and UD 996/2015 and should be read in conjunction with same.

Respondent’s Case:

Background

The respondent took over the business in March 2015.

On or around the date of transfer, the respondent received all existing contracts of employment (the “file contract”) for all employees of the company. These contracts of employment were those issued to the employees by Company 1 and those which transferred to the respondent under Regulation 4 of S.I. 131 of 2003.

LRC Complaints

On the 19th June 2016, the Respondent received complaint forms from the LRC. These complaints were lodged by the MN and SO’D under the Terms of Employment (Information) Act 1994. The complaints forms issued to the Respondent by the LRC also contained the Claimants’ purported contracts of employment (the “LRC contracts”) and purported letters of offer of employment (the “LRC offer letters”).

The LRC complaints alleged that “changes were made to [the Claimants’] written statement[s] without notification”. The LRC complaints further detailed as follows:

• “As per my letter of employment, I am not required to work Sundays or bank holidays, but have been threatened with reduction of my contracted hours if I do not cooperate with their demands”.
• “When I approached MN2 on the Sunday work issue, she informed me that my future hours and employment would be affected by my inability to work on Sundays. The roster this week shows this very clearly and she completely ignored the conversation regarding my Sunday work, as these are part of my make up of hours.”
• “The workplace is being flooded by new staff with no experience or training despite cutting my entitled hours and I am at the loss hours that they are getting in my place and in turn loss of income”.

Initial Investigation Process and Suspension

On 12 July 2015, it was identified by the Respondent (i.e. MN2) that the contracts of employment and the letters of offer that were submitted to the LRC were not the same as those that the company had on record for the two claimants’. As the matter was to be investigated by the LRC, MN2 felt it was necessary to meet with the complainants on 13 July 2015 to clarify this matter so that there was no conflicting documentation at the LRC.

On 13 July 2015, MN2 met with SO’D and MN. Given that the meeting concerned a future LRC hearing, the Respondent ensured that both SO’D and MN were given the option to be accompanied at this meeting. Karen Nugent took minutes of these meetings. Both claimants outlined that the LRC contracts and LRC letters of employment had been issued to them by MN1 around the time they had commenced employment with Rustic Kitchen.

Later on 13 July 2015, MN2 met with MN1. MN1 was the Operations Manager and it was anticipated that she could shed light on the matter. Karen Nugent took minutes of this meeting. MN1 verified that the LRC contracts were issued by her to MN and SO’D. MN1 asserted that all employees received the LRC contract and that those employees could verify same.

MN1’s assertion that all employees received the LRC contract did not correspond with the contracts of employment that the Respondent had on file following the TUPE transfer process. Accordingly, MN2 met with six other staff members (Alison Keogh, Anna Tully, Imelda Griffin, Des Harford, Thomas Geoghegan, and Andrea Pina) on 13 July 2015 to clarify the matter. All six of these employees stated that they had never seen the LRC contract before. Karen Nugent took minutes of these meetings.

It was at this point that MN2 became concerned as two employees had submitted claims to the LRC on the basis that The respondent had breached their terms and conditions of employment (i.e. as per the LRC contract and letters of offer). There were notable difference between the file contracts and LRC contracts, notably the signature detail and dates of issue, in addition to considerable differences in respect of the terms and conditions of employment. In light of this, and in view of the fact that all three Claimants acknowledged that MN1 had issued the LRC contracts to MN and SO’D, MN2 deemed it necessary to suspend all three Claimants pending further investigation into the legitimacy of the LRC contract and the letters of employment. The concern to be investigated was whether or not these LRC documents were legitimate as opposed to fabricated for the purposes of taking a claim against The respondent on foot of an illegitimate document.

A letter confirming suspension was sent to each Claimant by email on Tuesday 14 July.

Formal Investigation:

(a) File Contract and LRC Contract - Document Comparison

The Respondent has carried out a review of the file contract as compared to the LRC contract and the following distinctions are evident:

• Signature: The LRC contract is neither signed by SO’D nor by the company. The LRC contract is signed by MN but it is not signed by the company. Conversely, the file contracts are signed by both Claimants, and also MN1 on behalf of the company.
• Employer Name: Both the LRC contract and the file contract contain the full name of the employer. However, the file contract goes on to specify the Company Registered Number, the Company VAT Number, and the names of the Company’s directors, none of which is detailed on the LRC contract.
• Employer Address: The LRC contract does not contain the full address of the employer, as required by the Terms of Employment (Information) Act. Conversely, the file contract contains the full address of the employer beneath the signatory section.
• Contractual Information: The file contract contains an opening paragraph entitled “contractual information”. This section specifies that staff are required to fill out a “brief introduction file form and a medical questionnaire. On completing these forms you will be issued with your contract which you must read, understand and sign off on.” The file contract goes on to specify above the signatory section as follows: “I have completed my medical and staff file form.” This requirement and these details are not specified on the LRC contract, notwithstanding the fact that the completion of the staff file form and medical questionnaire was a standard practice in the business.
• Salary/Wages: The LRC contract refers to “all full time and set hour part time staff are paid salary rather than hourly pay, to make the working week more effective for all. Part time and flexi staff are paid by the hour”. Conversely, the file contract states “all employees are required to work a back week. Wages are paid directly into your bank account each Friday.”
• Working Hours: The LRC contract states that opening hours are from “6am to 8pm Monday to Friday and from 6am to 2pm on Saturday… We do not open on Sundays or Bank Holidays. We do not open Christmas Eve, Christmas Day or St. Stephen’s Day”. Conversely, the file contract states that “the core hours of business are 5am to 8pm Monday to Saturday. We are closed on Sundays. The weekly roster is displayed in the staff canteen and in the office… Hour worked outside of rostered hours must be verified by David. Staff are required to arrive on time to commence work at the rostered time.” It is specifically noted that the file contract made no reference to the company being closed on public holidays.
• Breaks: The details of break entitlements are the same in both contracts, albeit written in reverse order. Both contracts refer to smoking breaks being permitted only during normal break times but in differing levels of detail.
• Sign-In System: The LRC contract specifies that there is a sign-in system in operation and that staff will only be paid in accordance with sign-in records. The file contract does not specify any requirements in respect of signing-in. It is noted that there was no sign-in...