ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004685

Parties:

Complaint(s):

Date of Adjudication Hearing: 24/01/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Location of Hearing: The Ardboyne Hotel

Procedure:

In accordance with Section 41 of the Workplace Relations Act; Section 7 of the Terms of Employment (Information) Act, 1994; and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and 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).

Background:

This case refers to a Croatian national who was employed as a van driver with the respondent.

The Complainant commenced his employment on 2^nd July 2015 on a wage of €500 per week.

The complaint refers to the alleged failure of the Respondent to provide the Complainant with a written statement on his terms of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994, and that contrary to the Unfair Dismissals Act, 1977 the Complainant was unfairly dismissed by way of constructive dismissal due to the alleged treatment of him by the Respondent.

Summary of Complainant’s Case:

The complainant maintained that when he took up employment he was offered a rate of pay of €500 per week on the basis he started work at 6am and where he was required to unload a lorry, load his van, and deliver parcels throughout the day until approximately 7:00pm.

The complainant commenced employment on 2^nd July 2015, although he had worked a few days for the Respondent before the end of June 2015.

Complaint CA-0000 6678-001- Terms of Employment Information

The Complainant maintained that he never received a statement in writing of its terms of employment in accordance with the Terms of Employment (Information) Act, 1994.

Complaint CA-0000 6678-007- Unfair Dismissal

The Complainant maintained that he was redeployed to a different run from October 2015 at which time his work load increased and where he would have been delivering between a hundred to two hundred persons per day. Due to this change on many occasions he did not finish work until between 9:30pm and 11pm. He continued working under these arrangements where did not receive payslips until he asked for same as he wished to apply for a medical card.

Throughout his employment the complainant received €500 per week which was paid into his wife’s account, and where he would have received payslips which indicated that the deductions for PSI and USC. The complainant provided evidence of weekly payments to his bank account, and evidence of some of payslips he received during the course of employment.

On 10^th August 2016 the Complainant left on two weeks’ annual leave where he noted that he did not receive his full holiday pay for those weeks (he only received €420 per week, leaving him €70 short per week), and where he was also left short one full week’s pay (€500). The Complainant contacted the Respondent a number of times by text seeking his full pay but he received no response from these requests. In addition, and throughout his employment the claimant maintained that he was very unhappy at the amount of hours he was required to work and he would have approached the Respondent on at least five occasions between October 2015 and August 2016 seeking a reduction of his work hours so that they would be in accordance with working time regulations. The Complainant maintained that the hours were not reduced and he was told by the respondent to like it or lump it.

The Complainant was not aware of any grievance procedures under which he could progress his complaints. All he believed he could do was to raise his concerns with the Respondent, which he did, in the hope the matter would be addressed.

As a consequence of not receiving his holiday pay, and in light of his frequent requests to have his working hours regularised the Complainant felt that he had no option but to leave his employment particularly as the Respondent had failed to address any of his concerns.

When the Complainant left his employment he became aware that his employer had failed to pay any income tax to the office of the revenue Commissioner. This complaint is subject to investigation under the workplace relations commission.

Summary of Respondent’s Case:

The respondent failed to attend the hearing of the any submission in response to complaints to the workplace relations commission.

Findings and Conclusions:

Having satisfied myself that the respondent was informed of the hearing but provided no reason for his non-attendance I progressed to make my findings and decision in relation to the complaints.

Findings in relation to complaint CA-0000 6678-001

In the absence of any contrary evidence I am satisfied that the claimant was not provided with a written statement on his terms of employment within two months of his commencement of employment which is contrary to section 3 of The Terms of Employment (Information) Act, 1994.

I therefore find that the complaint is well-founded and in accordance with section 7 (2) (d) of the Act I order that the employer is to pay to the employee compensation of 4 weeks’ remuneration in respect of the employee’s employment to be calculated at €500 per week.

Findings in relation to complaint CA-0000 6678-007- Unfair Dismissal

The breach of a contract of employment is a very serious matter and which in cases of unfair dismissal, requires an examination of whether an employer acted fairly. This test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination. In cases where an employee breaks the contract, and then seeks to pursue the employer for constructive unfair dismissal, as in this case, 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. In this regard 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.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61).

In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour. In this case the Complainant has claimed that he was constructively dismissed as a consequence of his repeated attempts without success to have was working hours regularised; the failure of his employer to pay him the correct amount of pay when on annual leave; and the failure of the employer to pay him one week’s wage.

I find that the hours of required to be worked by the Complainant (which typically amounted to a 6:30am start, and a finish any time from 7:30 pm to 10pm), which was uncontested from the Respondent, amounts to breaches of the Organisation Of Working Time Act; although no complaint has been raised under this Act by the Complainant.

Of significance in this case is that the Complainant’s uncontested evidence suggests he had approached the Respondent on at least five occasions to have his excessive working hours adjusted, but his complaints and concerns were unaddressed and appear to have been rejected in an offhand way by the Respondent. In addition the uncontested evidence presented suggests the Complainant experienced a shortfall in his pay of €70 per week during two weeks of his annual leave in August 2016, and a failure of the Respondent to pay the Complainant a week’s wage for the week he worked prior to taking his annual leave. This amounts to breaches of the complainant’s entitlements. Furthermore despite a number of attempts by the complainant to seek his proper pay during his annual leave I find the Respondent failed to address these concerns.

Based on the combined lack of response to addressing the Complainant’s working hours, despite numerous attempts made by the Complainant, and the failure of the Respondent to pay the Complainant his proper amount pay before and during his annual leave, I find it was reasonable under these circumstances for the Complainant to conclude that his employment relationship was untenable. As such I find that it was reasonable for the Complainant to believe he had no option but to leave his employment in light of the repeated failure by the Respondent to address what where reasonable and legitimate concerns.

I note the complainant did not raise a formal grievance, however he maintained that he was never informed of the existence of the grievance procedure within the organisation, and as a foreign national he was not aware of the Respondent’s obligations to have such procedures in place.

Having considered the evidence provide I find that the complainant was unfairly dismissed on the basis of constructive dismissal due to the conduct of his employer.

The complainant advised that he initially sought new employment but as his employer had not registered in him he had no P45, and as his wife had subsequently gained employment he took on childminding responsibilities for the family from September 2015 and as such has not actively applied for further work.

Decision:

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

Decision in relation to complaint CA-0000 6678-001- Terms of Employment Information

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the failure of the Respondent to provide written notices of the conditions of employment.

I find that this complaint is well founded and order the Respondent to pay the Complainant three weeks remuneration, amounting to €1,500. This payment is to be made by way of compensation.

Decision in relation to complaint CA-0000 6678-007- Unfair Dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

Therefore in accordance with section 7(1)(c) of the Unfair Dismissals Act, 1977 I award compensation for the loss of earnings due to the unfair dismissal of the complainant. With reference to 7(2) (c) of the Act, as the complainant has not actively sought employment to mitigate his loss since early September 2016, I award the complainant compensation of four weeks wages at €500 per week.

Dated:   9^th August 2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words:

Terms of Employment Information, Unfair Dismissal, Constructive Dismissal.