EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD281/2014
RP115/2014
MN105/2014
WT38/2014
CLAIMS OF:
Stuart Lai (claimant)
Against
Brophy & Co Chartered Accountants (respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. L. Tobin
Mr N. Dowling
heard this claim at Trim on 18th March 2015
Representation:
_______________
Claimant: Ms. Sinead Dullaghan B.L. instructed by MCGM, Solicitors, 86 Clanbrassil Street, Dundalk, Co Louth
Respondent: In person
Summary of Evidence
The claims under the Redundancy Payments Acts 1967 to 2007, the Organisation of Working Time Act 1997 and the Minimum Notice and Terms of Employments Acts 1973 to 2005 were withdrawn during the course of the hearing. The claimant is alleging he was constructively dismissed from his employment with the respondent.
The claimant was employed as a senior Accountant and Auditor from May 2008 to November 2013. He was not supplied with a written Contract of Employment; he earned €45,000 per annum. From March 2012 onwards there were issues with the claimant’s pay; his salary was delayed on an ongoing basis. The claimant had a number of meetings and corresponded regularly with his employer in an effort to resolve these issues but without a satisfactory outcome. Ultimately by way of e-mail to the respondent dated 6 November 2013 the claimant sought payment of back wages totalling €10,905.91 owed to him as of 31 October 2013. He received no reply to this request and the matter was passed on to his legal representative. His employment terminated on 1 November 2013.
The claimant told the Tribunal he felt he had no option but to leave his employment after continued non-payment of wages due. He told the Tribunal that he was not aware of any grievance procedures in place in the company and he believed that he could not have made any further efforts to secure his outstanding wages.
The claimant gave evidence of loss and his extensive efforts to mitigate his loss; detailed correspondence was opened to the Tribunal.
The respondent submitted that the company suffered financially during the recession. Clients not paying the firm coupled with the decrease in business contributed to the lack of cash flow. However the claimant did not receive any pay cuts throughout that period but it was conceded that there was outstanding wages due to the claimant at the time that his employment terminated.
Determination
Section 1 of the Unfair Dismissals Act defines constructive dismissal as:
“the termination by the employee of his contract of employment with this employer whether prior notice of the termination was or was not given to the employer in the 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”.
The Tribunal finds that due to the conduct of the respondent in not paying the wages due, it was reasonable for the claimant to terminate his contract of employment and therefore the claimant’s claim pursuant to the Unfair Dismissals Acts 1977 to 2007 succeeds. Accordingly, the Tribunal awards the claimant compensation in the sum of €36,000.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)