ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004791
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00006830-002 | 06/09/2016 |
Date of Adjudication Hearing: 10/03/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act , made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
The Complainant herein has referred a matter for dispute resolution under Section 13 Industrial Relations Act 1969 and the referral has been made within six months of the initial circumstances of the relevant dispute/contravention.
By | Complainant | Respondent |
Parties | An Employee | A Construction Company |
Complainant’s Submission and Presentation:
The complainant stated that he was accused of stealing from his employer in circumstances where his employer knew that he had not stolen the goods. In July his employer asked him to do a job in Laois. He called over to his house to collect the tools needed for the job. He took the tools to Laois where he was working on a site with his father and two others. Two weeks later they were called to go to a site in Lucan. The tools were being stored in his father’s van. On Wednesday 10 August when he took the tools from his father van in order to transfer them to another employees van, he noticed that one of them was missing. It was a PPN gun. It turned out that his father had the PPN gun. He told the complainant that he would tell his boss that he had it and would arrange to get it back to him. On the 11th August, he received a text from the respondent stating
Respondent - “ Is your dad still holding on to my PPN gun”
Complainant - “ yes he has it”.
Respondent - “ X you are holding tools belonging to me I warned you. I gave those tools to you and I am holding you responsible”
Complainant – “ I am not holding any tools belonging to you. I thought they were in my car”
Respondent – “ Where is my gun”
Complainant – “ I just told you, dad has it”
Respondent – “ I think you should find some other work for the next few weeks as I won’t be taking on much until my leg is right.”
Complainant – “ Ok Still have to get your PPN gun to you. Have you any idea how long until your leg will be right, also going to need to get money you owe me asap to get by”
The complainant requested a P45 so that he could sign on.
On the 13th August, 2016
Complainant - “ Can you deposit that € 1,200.00 that I am owed into my bank account please.
Respondent – “ I will when I get paid , but I think its € 1080.00
Complainant –” Your right, its € 1080.00 you getting paid isn’t my concern me getting paid is.
The complainant has not been paid for the two weeks work he carried out for the respondent on the Lucan site. He is owed € 1,080.00. He is also owed € 734.00 emergency tax which the respondent stated was deducted from his wages. When the complainant enquired with the revenue commissioners he discovered that it had not been paid to the revenue.
The complainant stated that he didn’t want to work for the respondent anymore particularly in circumstances where he wasn’t getting paid for the work he was doing. He left his employment and is now doing a course with a view to setting up his own business. He hopes to do that this year.
Respondent’s Submission and Presentation:
Decision:
Section 13 Industrial relations Act, 1969 requires that I make a recommendation following the hearing of this matter.
The claim is one of constructive Dismissal as defined in Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the claimant. He must show that his resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.
“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 as discharged from any further performance”
If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test
“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”
When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate his contract of employment.
I find that in circumstances were the complainant was not being paid for the work he contracted to carried out for the respondent that is a breach of his contract going to the root of his contract. Being paid for services rendered is a basic and fundamental requirement of the employee/ employer relationship. To withhold payment from the complainant because of a separate issue between the parties is not acceptable.
I find that he complainant was justified in terminating his employment and therefor his claim succeeds. I recommend that the respondent pay to the complainant the sum of € 2,000.00
Furthermore, I find, based on the text messages submitted during the hearing that the complainant is owed two weeks wages and is owed the emergency tax money that was deducted from his wages by his employer as emergency tax when no emergency tax was paid to the revenue commissioners.
I recommend that the respondent pay to the complainant the sum of € 734.00 being the amount falsely deducted as emergency tax. I further recommend that the sum of € 1080.00 be paid to the complainant, being the two weeks wages due to the complainant.