ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001405

Complaint for Resolution:

Date of Adjudication Hearing: 07/09/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

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:

The complainant resigned from his job in December 2015. He had worked for the respondent for almost eleven years but over recent years he felt that his working conditions were being adversely affected by the behaviour of his employer and that contributed to his decision to leave. He said he was being obliged to work on constructions sites without having had the legally required safety training, (Safe Pass). There were repeated deductions and delays in payment of wages. It would sometimes take a period of months to receive his proper entitlement. A number of cases were referred to the Rights Commissioner service in order to get paid. Despite this, even at the time of leaving he, was still owed for a substantial number of hours pay.

He fully utilised the internal grievance procedures but problems were either not resolved or continued.

This resulted in his having sleeping problems and work related stress leading to sick leave absences. He was not offered any support or advice to help him manage these problems and the respondent stated to him that it did not recognise workplace stress and had no policy to deal with it. He says that the company disciplinary procedures were used against him unfairly and one such case was referred to a Rights Commissioner in order to have a written warning removed. Despite a decision in his favour it was not removed and was subsequently referred to in a submission prepared by them for an unrelated case.

At the time of leaving, there was another investigation in progress in relation to his refusal to work on construction sites without a Safe Pass. This investigation was kept open for months without any progress despite his being on notice that it could result in disciplinary action up to and including dismissal. In recent months his roster was repeatedly changed or shifts were cancelled without regard to agreements with his trade union, which caused him distress. Finally, in the lead up to the end of his employment, the respondent had begun sending him o retail and construction sites for which he did not feel qualified as, prior to this, he had normally worked on corporate sites (offices). He says he did everything to try to resolve his work related problems with his employer over a long period of time without success before finally resigning. By way of legal submission the union relied on the established criteria of breach of contract as represented by the non-payment of wages and unreasonable behaviour by the employer as outlined by the various examples above.

Respondent’s Submission and Presentation:

The respondent did not attend the hearing.

Findings and Conclusions 

I am satisfied that the respondent was properly on notice of the hearing and no explanation was offered for failing to attend. Accordingly, I proceeded to hear, and adjudicate on the complaint. I considered all relevant evidence that was laid before me both prior to and in the course of the hearing.

The breach of a contract of employment is, like any other breach of contract a very serious matter. Most cases involve an examination of whether an employer acted fairly in doing so and the test is a demanding one involving a mix of both procedural and substantive criteria. The onus falls on the employer in such cases to justify any termination.

So when ‘the shoe is on the other foot’, and when an employee breaks the contract, and then seeks to pursue the employer for constructive unfair dismissal the bar is set just as high. Likewise, the burden of proof, which now passes to the employee is set at a high level.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment by the employer.

The Supreme Court has said that;

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

Put simply, the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour. The complainant’s case was based on some seven incidents or episodes.

These included the obligation to work without the Safepass qualification in settings where it was a legal requirement, deductions from and delays in the payment of wages, the failure to apply effective internal procedures to resolve issues, the lack of support for the complainant in respect of stress-related conditions such as sleep loss, unwarranted disciplinary action against the complainant, changes to his roster, and the allocation to unfamiliar work environments.

All of these (with perhaps the exception of being assigned to sites with which he was not familiar), and taken together they represent a formidable challenge to what the complainant might expect under the terms of his contract of employment.

The complainant has been to the LRC on three previous occasions and availed of the internal grievance machinery on a regular basis. This is one of the key considerations in determining a constructive dismissal case; failure to avail of, and exhaust such procedures will normally be fatal to a constructive dismissal case. This is one of those areas referred to above where the employee’s behaviour will have a negative bearing on the outcome, should they not have done so.

The complainant also relied heavily on the failure to address the underpayment of wages. There were seven examples given.

The sector has a provision for payment of ‘Make Up’ Time, (MUT) On one occasion, in September 2013 the complainant was promised a payment of seven and a half hours pay which was never paid.

On another in October 2013 there were various issues relating to the MUT which were not properly addressed.

In March 2014 the complainant was left short twenty four hours pay and had to refer the matter to a Rights Commissioner and waited a further seven months before eventually getting the payment.

In November 2014 he was denied payment for sick leave and again after much effort he was paid in July 2015.

In June 2015 following his removal from a site where Safepass was needed he was underpaid by twenty three hours and was only paid six months later A further twelve hours underpaid was never received.

He says he was underpaid on two other occasions in April 2015 and May 2015 and although it was eventually agreed in August 2015 that he would be paid an outstanding twenty eight hours he did not receive the payment until after he left.

Finally as a result of frequent roster changes in 2015 he was left short of wages as a result of a cancelled shift and was only paid a month later.

Both the scale and frequency of these incidents is inexcusable. One of the items above was an underpayment and of course isolated errors can happen. However, there is a clear pattern which was too frequent to be either accidental or acceptable. In December 2015 the complainant had four outstanding payments due to him totalling fifty five hours’ pay. It was at the end of a meeting on December 22^nd that he tendered his resignation.

Of the other issues his assignment to sites without the required Safepass is a serious matter, less so the assignment to sites for which he did not have the required experience.

Other issues were the application of an unwarranted disciplinary sanction which was eventually rescinded by decision of a Rights Commissioner.

But there is sufficient here to provide grounds to an employee to conclude that his employer was indifferent to the obligations contained in the contract of employment to the point where the repudiation referred to above can be discerned. The payment of an employee’s wages is a fundamental aspect of the legal basis of the contract.

Indeed, the cumulative impact of the catalogue of actions visited on the health of the complainant by the company can only be guessed at.

Judged by the Berber test, and the general principles applicable to a constructive dismissal this complaint meets them with very considerable room to spare.

The complainant’s loss is stated to be €9351 per annum having secured alternative employment but at a lower pay rate than he enjoyed with the respondent. He has sought compensation to reflect his losses to date and future losses

The complainant made an extensive submission on the appropriate redress in the case.

The Unfair Dismissal Act states, at section 7(c) as follows;

If the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding 104 weeks remuneration) in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act as is just and equitable having regard to all the circumstances.

Section 7(3) refers to ‘any actual loss or prospective loss of income attributable to the dismissal’

This grounds his claim for some acknowledgement and redress for his continuing losses.

The termination of employment in this case occurred on December 15^th 2015. It was referred to the WRC on January 17^th 2016. In the past it was not uncommon that a case such as this might come on for hearing and that actual losses incurred by a complainant might be up to or exceed the maximum permitted by the Act.

Accordingly the actual loss could often be a considerable sum (subject to the established criteria) and result in significant awards, and the same requirement that they be ‘just and equitable’ also applied. However, it arose less frequently than it is likely to these days that the EAT, for example had to consider the matter of future losses as in many cases they were already at the 104 weeks limit.

The complainant has submitted that loss does not end with the securing of new employment and has relied on O’Kelly v WYG Engineering (Ireland) Ltd UD 301/2011 (Reported at [2013] E.L.R 279) and Gough v Ulster Bank UD 1436/2011. Any award must remain, of course within the parameters of compensation for loss, as was made clear in Stephens v Archaeological Development Services Ltd [IEHC0 540] and must not stray into tort based considerations. per MacMenamin J.

The Unfair Dismissals Act lists a number of mitigating factors which must be taken into account; the conduct of the employer and that of the employee under various headings, in the case of the employer his acts, omissions or conduct, failure to comply with section 14 and similar obligations falling on the employee.

I find that there is nothing in the employee’s conduct to mitigate any award I may consider making; he demonstrated considerable fortitude and resilience while still in employment and a commitment to resolving the catalogue of difficulties he was exposed to for which he deserves credit. On the contrary the conduct of the employer has been of a very poor standard, to put it no more strongly, culminating in failure to attend the hearing without explanation.

I find that the complainant has been the subject of a constructive unfair dismissal and accordingly, I consider that it is just and equitable having regard to all the circumstances and the facts and findings herein to make an award approximately equivalent to eighteen months of his losses in the amount of €14,000.

I take into account actual losses of approximately nine months up to the date of the hearing and factor in the probability that the complainant is unlikely to find new employment in the near future at such a level that would see him recover his earnings position and make good the losses he incurred as a result of the 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.

I uphold complaint CA—00001994-001 and find that the complainant was constructively unfairly dismissed. I award him €14,000.00 as compensation for the losses directly attributable to the unfair dismissal.

Dated:   18^th November 2016