EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Kevin Kilkerr UD470/2013
WT70/2013
against
Burke Fabrications Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Fahy B.L.
Members: Mr. W. O'Carroll
Mr T. Gill
Heard this claim at Galway on 27 August and 3 November 2014
Representation:
Claimant : In person
Respondent : In person
The determination of the Tribunal was as follows:
Summary of Evidence
The respondent submitted that the claimant left his employment and was not dismissed. The claimant submitted that he was not getting paid over a period of three years and had no option but to leave his employment. As the dismissal was in dispute the Tribunal heard the claimant’s evidence first.
The claimant commenced employment in October 2009. On the 26 February 2010 his pay cheque was returned by the bank. He had regular discussions with SB a director of the respondent about not receiving his pay. The pay issues continued and in response to the claimant’s letters requesting his outstanding pay in September 2012 the respondent wrote to him stating he would receive all monies due.
The claimant took a case to the Rights Commissioners and was compensated. He left his employment due to the conduct of his employer. Over the course of the employment he had no performance issues and worked well. A reference provided by the respondent was opened to the Tribunal by the claimant.
The respondent told the Tribunal that the claimant was paid up to date at the time his employment ended. The claimant was paid €5,000 on the day of the Rights Commissioners hearing. TB another director outlined how the business had experienced difficult years and had now started to improve. During the difficult periods the claimant’s hours varied each week. The respondent witness accepted that there had been issues with PRSI and PAYE in the past in relation to the claimant. However, all the contributions were brought up to date.
Determination
When an employee provides labour and services to an employer it is reasonable for the employee to expect to be paid for its labour and or services. In the present case the Respondent, over a long period of time, made part payment of wages to the Claimant and furthermore requested that the Claimant return to his workplace, on a promise that wages due and owing would be sorted out. The Claimant did not return to work as the mutual trust, which is an essential component of the contract of employment, was breached so many times by the Respondent’s promise to pay his wages and then failing or refusing to do so. False promises, delayed and inconsistent part payments from the employer do not dilute the breach of trust between the employee and employer.
In this case the claimant was justified in resigning his employment from the respondent due to the failure on the part of the Respondent to pay his wages. The Tribunal notes the claimant’s efforts in mitigating his loss.
The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the Tribunal awards the claimant €14,000.00 as compensation under those Acts.
The appeal under the Working Time Act, 1997 is allowed and the appellant is awarded €1212.00 under that Act.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)