DWT1468

Background
The Claimant was employed by the Respondent in his capacity as a waiter. His employment commenced on or about 16^thApril 2013 and ended on or about 10^thAugust 2013. The Claimant brought claims before a Rights Commissioner alleging contraventions of various provisions of the Act by the Respondent in relation to his employment. They included a claim that he was penalised by the Respondent contrary to s.26 of the Act. The Rights Commissioner found that the claims were well founded in part. In so far as is material for present purposes the Rights Commissioner found that the Claimant’s claim of penalisation contrary to s.26 of the Act was not well- founded. It is against that aspect of the Rights Commissioner’s decision that the Claimant appealed to this Court.

The Appeal
The Respondent did not appear and was not represented at the hearing of the appeal. The Court is satisfied that the Respondent was informed of the date time and place at which the appeal would be determined.

Sworn evidence was tendered by the Claimant, the substance of which was as follows.

According to the Claimant he commenced work at or about 11am on Saturday 10^thAugust 2014. He expected to finish at 11pm that night. The Claimant worked alone in the restaurant area of the Respondent’s premises on the night in question and he was so overworked that he was unable to take a break of any kind. He was not offered the opportunity to take a break and no assistance was made available to him. At or about 3pm on the day in question the proprietor of the Respondent entered the restaurant and spoke to the Claimant in demeaning and insulting language. The Claimant responded by informing the proprietor that he was working alone and did not receive a break at work. He informed the proprietor that he was entitled to receive a break.

According to the Claimant he was followed by the proprietor who then head-butted him without warning. He left the premises and did not return.

The Claimant reported the assault to the Gardai. He later confirmed his report in writing (a copy of which was put in evidence).

On these facts the Claimant contends that he was constructively dismissed by the Respondent for having opposed by lawful means an act which is unlawful under the Act, namely a requirement that he work for more than 4 hours and 30 minutes without a break.

Conclusions of the Court
Section 26 of the Act provides: -

• 
  26.—(1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act.
  • 
    (2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to [2007], relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

Section 1 of the Unfair Dismissals Acts 1977 -2007 defines dismissal as: -

• (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

  (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

  (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

• “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”.

Paragraph (c) of the definition deals with a situation in which the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving there and then.

In this case the conduct of the proprietor of the Respondent in perpetrating a serious and unprovoked assault on the Claimant had the effect of undermining the duty of mutual trust and confidence which lies at the root of every contract of employment. It was also conduct that was so unreasonable that no employee could be expected to tolerate it any further. Consequently, whether by reference to paragraph (b) or paragraph (c) of the statutory definition the conduct of the Respondent constituted a dismissal of the Claimant.

The Court is fully satisfied on evidence that the Respondent’s conduct a direct result of the Claimant’s complaint at being required to work without being afforded the breaks to which he was lawfully entitled. Consequently, it amounted to penalisation within the statutory meaning of that term.

Determination
For the reasons set out above the Claimant is entitled to succeed in his appeal. The appropriate form of redress is an award of compensation. The Court measures the quantum of compensation that is fair and equitable in the circumstances at €10,000. The Respondent is directed to pay the Claimant compensation in that amount.

The decision of the Rights Commissioner is varied in terms of this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
18th July 2014______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.