EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Arkadiusz Moch UD372/2015
MN194/2015
Against
Tesco Ireland Limited
(Respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr P. Pierce
Ms M. Maher
heard this claim at Dublin on 13th April 2016 and 20th June 2016
Representation:
Claimant: Mr. Alex Ryan B.L. instructed by:
Mr. Marcin Szulc, Rostra Solicitors, 78 Benburb Street, Smithfield, Dublin 7
Respondent: Ms. Roisin Bradley, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2 – 13th April 2016
Mr. Tiernan Doherty, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2 – 20th June 2016
The determination of the Tribunal was as follows:
Summary of Claimant’s case:
The respondent is a large supermarket chain and the claimant was employed as a General Assistant in one of its supermarkets. The claimant commenced employment with the respondent on 11th January 2005 and his final termination date was 30th March 2015. The claim before the Tribunal was one of constructive dismissal and therefore the claimant was required to go into evidence first.
The claimant resigned by letter on 30th March 2015 and told the Tribunal he had done so because following re-engagement with the respondent on 15th February 2015 after a previous dismissal, he did not receive any pay from the date of his return until he handed in his resignation. He was paid on a weekly basis. The claimant informed the respondent within two weeks of his return that he had not received any payment. He told his Line Manger (AM) on three occasions and the shop steward (Mr. P) on one occasion to no avail. The claimant put the matter in writing on 22nd March 2015 and after still having received no pay by 30th March he felt he had no option but to resign.
Under cross-examination, the claimant denied that he was offered a cash advance prior to the meeting of 30th March 2015 and had never heard the term ‘advanced recovery’ (a system the respondent uses to pay cash advances to employees). At the meeting of 30th March the claimant was told the matter would be resolved within two weeks and he was asked to stay on. The claimant declined as he had lost confidence in the company after seven weeks without pay.
The claimant denied that he did not want to rectify matters and denied that he said ‘he wanted Tesco to pay’. Two weeks after non-payment he informed the shop steward who subsequently told the claimant that he had taken up the matter with the respondent. Three days after he told the shop steward, his boss JM acknowledged the matter and he was told it would be dealt with but no explanation was forthcoming as to why this situation occurred.
On re-examination the claimant stated that he would have taken a cash advance had he been offered it.
Summary of Respondent’s case:
The General Manager of the store, (JM) told the Tribunal that he only became aware of the problem on 18th March 2015 when the claimant told him at the clock card machine. JM told the claimant that they would get him an advance recovery so as he would have cash available to him. JM spoke to AM and told him to arrange to get the claimant set up on the system. JM had no notification from the shop steward about the problem. It transpired that there was a system issue in identifying the claimant.
In cross-examination, JM stated that each week they tried to set the claimant up on the system but it would not register him. The claimant declined to take a cash advance on two occasions from AM.
AM told the Tribunal that he became aware of the problem on 18th March 2015 when JM told him that the claimant had not received any payment since 15th February 2015. He said he offered the claimant a cash advance twice. On 23rd March 2015 when the claimant refused a cash advance, AM asked another member of staff to witness his refusal, especially the fact that the claimant said “No I don’t want cash I want (respondent) to be responsible”.
Under cross-examination, AM denied that the claimant approached him on three occasions in relation to the matter.
A former colleague of the claimant (LS) gave evidence. She stated her Manager (AM) requested her to witness a conversation between himself and the claimant. The witness told the Tribunal that on this occasion AM offered the claimant an “advanced recovery” for the wages he had not received. The witness explained this offer was made to staff when their wages were not automatically paid into their bank accounts. AM offered this advanced payment three times to the claimant who refused it saying “(respondent) will be responsible for it”.
On the 7th of April 2015 she met with the General Manager (JM) and gave a detailed account of what had occurred between AM and the claimant on the night in question.
Determination:
This is a case of constructive dismissal and therefore the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is dismissed.
There was a conflict of evidence and the Tribunal has to make findings of fact to resolve this fact. The Tribunal is satisfied that:
The claimant was not paid his wages for several weeks.
This failure to pay his wages was due to a system error in the management of the computer payroll which was outsourced to India.
As soon as the claimant informed the local management of the problem, the local manager offered to pay him in cash, described as “advance recovery”.
The claimant refused to accept the “advance recovery”.
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”.
This definition includes two separate forms of constructive dismissal. One is built around the word “entitled” and the other built around the word “reasonable”. This case is unusual in that the Tribunal gives different answers to the issues raised by those two words.
In our view the claimant was quite unreasonable in refusing to accept the “advanced recovery” cash payment.
Nonetheless the respondent was in breach of its most basic obligation under the employment contract to pay wages. We accept that this was not the fault of the local managers, but the respondent, as a corporate body, must take responsibility for the system failure. The word “entitled” in the definition quoted above refers to a breach of contract the Tribunal finds that the claimant was “entitled” to terminate the contract.
Under the Act compensation is to be “just and equitable having regard to all the circumstances”. As stated above we are satisfied that the claimant was quite unreasonable on the issues, and accordingly, only a modest award would be “just and equitable”.
As this is the case, the Tribunal awards the sum of €1,000 (one thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)