ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000413

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

Date of Adjudication Hearing: 27/01/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

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

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The complainant commenced employment in 1983, initially as a lorry driver but subsequently, after several accidents, on the farm and doing local deliveries. The respondent purchased a work van for the complainant in 1997 which was upgraded in 2006. The complainant had use of the van doing occasional local deliveries and a coal run on Friday afternoons, and farming duties. The total number of weekly hours worked by the complainant would have been 15 or less. The van was taxed, insured and fuelled by the respondent until 2010. From 2010 the complainant occasionally fuelled the van and payed tax on it as he was using it more for his personal use than for work.

In 2013 the van was scrapped after an accident and was not replaced. All local deliveries had ceased by that time as the respondent had a forklift and lorries doing that work. The complainant had stopped doing the local coal run once he had his hip replaced as he was no longer capable of doing this. When he stopped driving for the company the claimant only looked after the farm. In this regard the arrangement with the respondent had always been that he would choose the hours that suited himself to feed the cattle. When the driving duties ceased in December 2013 there was no immediate adjustment to the weekly rate of pay. However, there was a reduction in working hours.

A conversation took place on 6^th November 2014 between the respondent and the complainant in relation to his level of pay. As the complainant was spending approximately 7 to 10 hours per week looking after the farm, this did not require him to attend every day and he could choose the days he attended. During the course of the conversation it was agreed that he actually only worked about 7 to 8 hours per week and therefore the respondent offered to pay him a rate of €12 per hour as clearly the previous weekly pay arrangement could not be justified because of the reduction in hours. As part of the agreement the respondent asked the complainant to keep an account of his hours worked so he could pay him what was owed and gave him a diary for this purpose. On 27^th January 2015 the complainant returned the diary and stated that he would not complete it and asked for a contract of employment. The respondent contacted his solicitor to draw up a contract based on the details discussed in November. This contract was passed on to the complainant on 26^th February. When the respondent later asked the complainant about the contract he advised that he was not going to sign it but would not specify the reasons why.

In February 2015 the respondent made the complainant aware that 25 animals were being sold out of necessity. The amount of animals remaining on the farm included 30 weanlings, 5 cows, 1 bull and 80 sheep so there was still a requirement to have the complainant employed on the farm.

On 19^th April 2015 the complainant submitted a sick note as he had been absent for about 2 weeks without any notification to the company. His duties had been covered by the respondent who was unaware of the reason for the absence until such time as the sick note was presented. When the complainant submitted the sick certificate he also requested his wages and his P45. The respondent asked him if he was sure he wanted to finish up and did he wish to think about it. The complainant indicated that there had been too many changes around the place and that he wanted to leave. He was allowed time to think about this and once the respondent had satisfied himself that this was what he wished to do he wrote to him on 22 May requesting hat he confirm his resignation in writing. A reminder to this request was subsequently sent and the respondent then received a letter dated 8 June confirming that the complainant had resigned from the company on 30 April to which the respondent replied on 11 June. The next correspondence the respondent received was from the complainant’s solicitor on 18 June indicating that they had been instructed to pursue a claim for constructive dismissal.

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:

The issue for decision is whether the complainant was unfairly dismissed and, if so, the appropriate redress.

Legislation involved and requirements of legislation:

Section 1 of the Unfair Dismissals Acts 1977 defines a dismissal as including:

‘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,’

Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee.

In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The contract test was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 as follows:

“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”.

Not every breach of contract will give rise to such repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether 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, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

Conclusions:

The complainant contends that he was constructively discriminatorily dismissed. It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and secondly, whether the conduct of the respondent was so unreasonable that the Complainant had no alternative but to tender his resignation.

A noteworthy feature of this case is that from 1983 when he was first employed, until the termination of the relationship in 2015 the complainant did not have written terms and conditions of employment. Nevertheless it is not contested that he was an employee of the respondent. In the absence of written terms it is necessary to look at what can be determined from the normal practice of their employment relationship. In this regard two aspects are relevant; firstly, the complainant did not have fixed hours. He was paid to exercise a responsibility on behalf of the respondent and to determine himself when this responsibility would be carried out and over what period of time. The exception to this was the coal run which took place every Friday. Secondly, the respondent paid a fixed sum for this responsibility i.e. a weekly rate not directly related to the number of hours worked.

In 2014 the respondent reduced the amount of complainant’s responsibilities and work. This occurred for two reasons; firstly, due to the complainant having a hip replacement the respondent unilaterally determined that he would not be fit to carry out the coal delivery and; secondly, for financial reasons the respondent had to sell a herd of cows. As a result of this reduction in work the respondent sought to reduce the money he was paying the complainant. In addition, he sought to change the existing arrangement in relation to the determination of pay by requiring the complainant to keep a diary of the hours actually worked and the tasks carried out and to make this diary available to the respondent. The respondent proposed to pay him on an hourly basis thereafter. It is clear from the evidence given that this proposed change was unacceptable to the complainant. His interaction with Mr J O’M, a week after being presented with the diary, further exacerbated the situation. In that interaction Mr J O’ M made it clear to the complainant that if he did not maintain the diary he would not get paid.

In response to the issue of the diary, the complainant requested a written copy of his contract. The respondent presented him with a contract which proposed to pay the complainant based on the hours each week for which he was required by the respondent. This contract did not represent the existing terms and conditions of the complainant but purported to change an essential term i.e. a move away from the fixed weekly payment to a lesser payment based on hours determined by the respondent.

If the work required to be done had reduced to such an extent the respondent could have made the complainant redundant but does not appear to have considered this option. The course of action he pursued was to offer the complainant an alternative contract with the method of payment changed and the amount to be paid reduced to such an extent that the complainant was justified in the belief that an essential term of his existing contract had been repudiated.

The second test for constructive dismissal, the ‘reasonableness test’ asks  whether 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. The conduct to which the complainant referred to was as follows;

The coal run was discontinued while he was ill due to a hip replacement;

The stock was sold off;

He was asked to record what hours he worked in a, “black book”;

He was offered a, “zero hours contract”;

The key to the tractor was removed;

The stock was sold in the mart by the Mart Manager when this was always the complainant’s job;

An outside contractor was brought in to spread fertilizer; and

Other parties fed the stock.

He was not paid any wages from 1st January 2015.

Resulting from these changes, on the 30th April 2015 the complainant told the Respondent that he felt like a trespasser as too many changes had been made.

At the hearing evidence was presented offering reasonable explanation in respect of some of the conduct complained of. The respondent stated that;

The complainant was aware of the reason for the discontinuation of the coal run and had himself informed customers that this would be happening;

The complainant was aware of the stock being sold off and the reasons behind the decision;

The key to the tractor was removed to a safe place because of the insurance company’s requirements.

However, the respondent had no procedure in place whereby the complainant could raise the grievances he had and no explanation was given to him for the changes. It is clear from the evidence given that the respondent wished to reduce considerably his outlay in relation to the complainant and, based on the complainant’s interaction with Mr J O’M, and in the absence of adequate explanation for the changes, the complainant could reasonably conclude that he was not wanted.

In Karolina Jabczuga v Ryanair Ltd – UD 66/2013 the Tribunal noted;

“An employer is, of course, entitled to lay down a procedure whereby a grievance is brought to its attention... However, this structure should not be entirely inflexible. If a complaint is made and it is clearly employment related, it ought to be treated as a grievance. At the very least, inquiry ought to be made as to whether the complaining employee wishes the complaint to be treated as a grievance.”

No such opportunity was given to the complainant to pursue his grievances.

Accordingly, I am satisfied that the respondent conducted itself in relation to the complainant in a manner which was destructive of a relationship of mutual trust and confidence and that the respondent’s conduct was so unreasonable as to justify the complainant leaving.

Decision:

I have investigated the above complainant and make the following decision in accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:

• the Complainant was unfairly dismissed

In accordance with s.7 of the Act, I order the Respondent pay the Complainant:

The sum of € 34,000 (the equivalent of 104 weeks’ pay) in compensation

The total award is redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.

Dated: 2^nd June 2016