ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001335

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 01/06/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The complainant was advised some weeks beforehand that because of a decline in business it might be necessary to reduce the number of days that he worked. This had happened on a previous occasion. He was also advised that full time working would resume as soon as was possible.

The complainant was paid by cheque every Friday for hours worked that week. The respondent is unaware of any unpaid wages to date.

The accident involving the complainant occurred in a neighbouring business property and is being dealt with through insurance companies.

The complainant was paid for a number of weeks after the accident.

The respondent attempted to arrange a meeting with the complainant following receipt of his letter of resignation but he would not meet with management.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Issues for Decision:

Whether the complainant’s contractual working hours were changed and if so did he receive proper notice in this regard as per the provisions of the Terms of Employment (Information) Act, 1994.

Whether the respondent failed to pay the complainant all payments due to him under the Payment of Wages Act, 1991.

Whether the conduct of the respondent was such as to leave the complainant with no reasonable option but to resign resulting in an unfair dismissal under the provisions of the Unfair Dismissals Act, 1977.

Legislation involved and requirements of legislation:

Section 5 of the Terms of Employment (Information) Act, 1994, states:

(1)    Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3,4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

(a)   I month after the change takes place……

Section 5(6) of the Payment of Wages Act, 1991, states:

Where –

(a)   the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deduction therefrom that fall to made and are in accordance with this Act), or

(b)   none of the wages that are properly payable to an employee by an employer on any occasion (after making such deductions as aforesaid) are paid to the employee,

Then, except in so far as the deficiency or non-payment is attributable to an error in computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Unfair Dismissals Act, 1977, incudes the following definition of dismissal:

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

Decision:

The complainant was employed as a motor mechanic by the respondent company which ran a motor repair business. His employment commenced in May 2005 and terminated by way of resignation on December 23, 2015. The basic pay was €500.00 gross per week. For many years there was a good working relationship between the parties. In 2011 the working hours of employees were reduced because of the recession. The complainant stated that he felt that he had no other choice but to accept this situation. Full time working was later resumed. In December 2013 the complainant injured himself while visiting a scrap yard in connection with his employment. The injury required surgery and the complainant was absent from work on sick leave for ten months. The respondent stated that they did not operate a sick pay scheme but had paid the complainant for a few weeks at the beginning of the absence. The complainant in evidence stated that he had been given to understand that he would be paid the difference between his wages and what money he received from Social Welfare. The complainant instituted proceedings in relation to the accident and this was being dealt with by two insurance companies as the accident occurred on another premises.

The complainant said in evidence that when he returned to work in October 2014 he felt a there was a change in management’s attitude to him. He was ignored by them and they were looking for faults. He received unwarranted warnings. The respondent’s manager said that the claimant believed that he should have been paid while out due to the accident and that attempts by them to explain insurance issues were dismissed. In August 2015 business again deteriorated and the respondent stated that they advised the staff involved that they would have to go on reduced hours and that they would be provided with letters for Social Welfare which would allow them to claim for the days that they were not working. The reduced working commenced at the beginning of October 2015 with 3 days being worked some weeks and 4 days on other weeks. On October 21 2015 the complainant wrote to the respondent informing them that he needed to take leave from November 25 until December 3 and would return to work on the following day. On November 12 the complainant went absent on sick leave and furnished a medical certificate relating to stress, valid until November 24. A further medical certificate was issued on December 3 to cover the period until December 23.

On December 23 2015 the complainant decided to resign. In a letter he gave the reasons for the decision. Amongst the reasons cited were extreme stressful working conditions, a disrespectful attitude from management, complaints about his work, not being paid on time and not being informed of days of work. The complainant also stated in the letter that he intended to take a case against the respondent to the Workplace Relations Commission as he felt he was being pushed out of his job. He did not engage with management as he felt that it would have been pointless. The complainant stated that he had received a phone call from the respondent’s manager in the New Year asking that he return but he refused.  

With respect to non-payment or late payment the complainant gave as an example the fact that he had received a wage cheque which when presented to the bank was returned with “refer to drawer” marked on it. He accepted that he had eventually been paid and that he was not now owed any money in respect of his employment.

The respondent admitted that they had not issued a written contract to the claimant.

Having carefully considered all of the submissions, both written and oral, I have decided the following:

Complaint No. CA-00001779-001:

I accept that the respondent in all probability informed the complainant that working hours were going to be reduced. It is, however, accepted that the complainant was not issued with a written statement of employment. This is not the complaint before me. No evidence was produced that the complainant was issued with a direct written notification that there was a change in his working hours. A letter produced for the purposes of facilitating a Social Welfare claim does not suffice. In these circumstances I find that this claim is well founded and require the respondent to pay the complainant € 1,000.00 as compensation for this breach.

Complaint No. CA-00001779-002:

I accept that there were occasions when wages were not received when they were due or delayed because of the wage cheque being returned by the bank. It is accepted, however, that all sums due were received and that the complainant is not owed any money in this regard. I therefore find that the complaint is well founded but do not believe any compensation is warranted in the circumstances.

Complaint No. CA-00001779-003:

It is accepted that the complainant resigned on December 23 2015 and confirmed this in writing. There is no doubt that the working relationship changed following the respondent’s return to work after his accident while the reasons for this are disputed. The question is, however, was the behaviour of the respondent such as to justify the action of the complainant in resigning from his employment. Evidence was given that hours had been reduced on a previous occasion and restored when business picked up. There was no reason to believe that what occurred in October 2015 would be different. It did not amount to a repudiation of the contract such as to justify the complainant’s resignation. With regard to the other matters cited in the complainant’s letter following his resignation this was the first occasion when the respondent was notified of same. The Employment Appeals Tribunal has stated that “except in very limited situations an employee must exhaust all avenues for dealing with his / her grievances before resigning” (UD1775 / 2010). It is clear that the complainant took the decision to resign without ensuring that the respondent was aware of his grievances and was given an opportunity to address them. I note also that the complainant declined an offer to engage with the respondent after his resignation. For these reasons the claim under the Unfair Dismissals Act 1977 fails.

Dated:   26^th July 2016