Complainant

Respondent

Anonymised Parties

Senior Manager

School Publications

Representatives

Andrew Nugent BL, Peter   Nugent & Company,    Solicitors, Emily-Jane Homan

James McManus

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00011244-001

10/05/2017

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00011266-001

11/05/2017

Complaint    seeking adjudication by the Workplace Relations Commission under section 6    of the Payment of Wages Act, 1991

CA-00011266-002

11/05/2017

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00011266-003

11/05/2017

Complaint    seeking adjudication by the Workplace Relations Commission under section 7    of the Terms of Employment (Information) Act, 1994

CA-00009760-001

17/02/2017

Complaint    seeking adjudication by the Workplace Relations Commission under Regulation    18 of the European Communities (Road Transport)(Organisation of Working Time    of Persons Performing Mobile Road Transport Activities) Regulations 2012 -    S.I. No. 36/2012

CA-00009760-002

17/02/2017

The Complainant was employed as a Senior Manager from 1^st   January 2014 to 1^st January 2017. He was paid €35,000 per annum.   He has claimed that he did not get a written contract of employment, worked   excessive hours, did not get a Sunday premium, is owed wages and was   constructively dismissed.

No contract of employment was issued. There was a transfer   of employment from a named trader to the Respondent in 2013/2014. The   obligation transferred to the Respondent to produce a contract of employment.   The Respondent t has breached Sec 3 of this Act and he is seeking four weeks   wages in compensation.

I find that the   Respondent did not issue a written statement of the terms and conditions of   employment as per the requirements of Sec 3 of this Act.

Sec 3 (1) of this Act states, “ An employer shall, not later than 2   months after the commencement of an employee’s employment with the employer,   give or cause to be given to the employee a statement in writing containing   the following particulars of the terms of the employee’s employment”

Sec 7 (2) (d) of the Act states, “compensation of such an amount (if   any) as is just and equitable having regard to all the circumstances but not   exceeding 4 weeks remuneration”.

I find that the   Respondent has breached Sec 3 of this Act.

The Complainant accepted at the hearing that he was not   covered by this legislation

This evidence was accepted.

I find that this complaint was misconceived.

1)Excessive hours - CA 11266-001

1)Excessive hours - CA 11266-001

The Respondent stated that the Complainant scheduled about   35 to 40 % of all his work. He had a lot of autonomy. He was a senior manager   in the company. He refused to stay over at any of the locations and insisted   upon returning to his home in Dublin irrespective of the distance from home.   He was requested to stay over but he regularly declined to do so. He never   raised a query during his employment. Based on the subsistence claims he may   have worked 50 hours per week on average during 2015 bit it was 48 hours per   week for the other years.

1)Excessive hours - CA 11266-001

I note the conflict of evidence in this matter.

I note that the Complainant accepted that he drove home   every night irrespective of where he had been working that day.

I note that the Respondent did not maintain any working   hours’ records.

I note that they accepted that he worked in excess of 48   hours per week in 2015.

Nevertheless I find that the Complainant has exaggerated   his complaint.

I find that he has to accept blame for much of the hours   that he worked due to his decision to return home each evening.

I find that while the Complainant had a degree of autonomy   the responsibility rests with the Respondent to ensure that their employees   adhere to the law concerning hours of work.

On the balance of probability I find that the Complainant   worked in excess of 48 hours per week.

I find that the Respondent has breached Sec 15.

The Complainant has claimed unpaid wages as follows:

In 2014 he was paid €17,501 but his P60 stated that he was   paid 35,000 gross less 2,050.01 PAYE, 1,400 PRSI, USC 1,768.80 netting   29,781.1, leaving a short fall of €12,280.

2015: he was paid 17,242 the P60 stated 35,000 gross,   2,050.01 PAYEE, 1,400 PRSI, 1594 USC netting 29,955.39 leaving a shortfall of   €12,713.39.

2016: There was no claim in respect of 2016 made on the   day.

His representative stated that this was a rolling debt and   cited the Employment Appeals Tribunal PW/16/1997 in support.

Expenses were claimed but it was accepted that they are   not covered by this Act.

The Respondent stated in a written submission subsequent   to the hearing that no wages are owing for 2014. He didn’t believe that   anything was owed for 2015 but maybe €2,500 is owed. He agreed to check this   out and revert to the Commission. In 2016 there was an overpayment.

I note that this complaint was presented to the Commission   on 17^th February 2017. Therefore the period that may be investigated   is 18^th August 2016 to 1^st January 2017(date of   termination).

I note from the information provided by the Respondent   listed as page 9 there was a payment of €2,496.29 made on 4^th   January 2016 relating to 2015. While 2015 is outside the scope of investigation   it shows that this amount has been paid. This matter had been signalled by   the Respondent.

I note that the Respondent was to advise if €2,500   approximately was owing in 2015.He made no response to this, despite agreeing   to do so.

Therefore I find that in the year 2016 the Complainant was   paid €35,072.46 less €2,496.29 paid in respect of 2015 thus leaving a   shortfall of €2,496.29 for 2016.

Therefore I find that the Complainant is owed €2,496.29   gross.

Sec   6(2) “the commissioner shall order the employer to pay to the employee   compensation of such an amount … not exceeding (a) the net amount of   wages”

I find that any claim in respect of expenses may not be   considered.

As per Sec 1 (1) (b) of this Act expenses are not part of   wages “ the following payments shall not be regarded as wages for the   purpose of this definition (1) any payment in respect of expenses   incurred by the employee in carrying out this employment.”.

The Complainant stated that his wages were not paid on   time. He was regularly left short. He had to work excessive hours. He had had   an agreement with the Respondent that the School App that they had developed   would be shared between them. In April 2016 he received a letter from the   Respondent regarding the shared ownership of the School App Product. These   discussions never happened. The Respondent stonewalled the project. In   November 2016 the Respondent sought €150,000 investment for a 20 %   partnership of the App. Another   individual was offered 10 % for €20,000.Because of all this stress he became   unwell and took one week off. He resigned his position around 1^st   January 2017. He found work on 20^th February 2017 at €37,000 per   annum. He has claimed that he had no option but to resign his position. The   Respondent’s failure to pay wages over a three year period or to refund   expenses is of itself sufficient grounds to justify a constructive dismissal.   This together with the Respondent’s refusal to honour the agreement to share   the App left him with no option but to resign his position. He has claimed   constructive dismissal. He has sought compensation.

The Complainant was an employee of the Respondent. There   was never any agreement about any share of the business. He stated that when   he asked where he Complainant got the idea that he would get half of the   business he replied that he had assumed that he would get it. So it was in   his head and nowhere else. The Complainant was very naive about the business.   This business had about €700,000 invested in it. Why would he think that a   business would go through what it had and then to give half of it away. The   Respondent asked the question why did the Complainant not stake his claim   earlier? Two investors joined the business and he never queried the   implications of this on his value. He had no value in this business. He was   never offered to invest money in this business. The School App lost about   €15,000 in 2016 under his stewardship. They had discussed ownership but he   was naive enough to think that he would get ownership for nothing. He left the business when it was nearing   closure. He was upset that the Respondent was not giving him half the   business for nothing. They had discussions and a value of €100,000 was placed   on the buy-in. Around November 2016 they discussed and shook hands on   acceptance of a buy-in of 20 % for €100,000. The Complainant then returned to   advise that he didn’t have the money to invest. At the end of November one   Sunday night he cleared out his office. The Respondent received a letter from   the Complainant’s solicitor in November 2016. However he never returned and   never formally resigned his position. It was April before the P45 was issued.   The Complainant did not give the Respondent an opportunity to address any of   his problems. The Complainant e-mailed the Respondent in April seeking a   meeting just to chat, not a business meeting. They did meet and no   substantive issues were discussed. There was no dismissal, he cleared out his   desk and never returned.

Definition

Sec 1(b) “the termination by the employee of   his/her contract of employment with his/her 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”.

In a constructive dismissal claim the burden of proof shifts to the   person making the claim. They also have to demonstrate that they were   justified in their decision and it was reasonable for them to resign. The   claimant needs to demonstrate that they have no option but to resign. In   addition there must have to be something wrong with the employer’s conduct.

In UD 1146/2011 the Employment Appeals Tribunal held “in such cases a high level of proof is   needed to justify the Complainant’s involuntary resignation from their   employment, i.e. he must persuade the Tribunal that his resignation was not   voluntary”.

It is well   established that the Complainant is required to exhaust the company’s   internal grievance procedures in an effort to resolve her grievance prior to   resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the   EAT stated; “It is incumbent on any   employee to utilise and exhaust all internal remedies made available to him   or her unless he can show that the said remedies are unfair”

Tierney v DER Ireland Ltd UD866/1999 “central to this is that she   shows that she has pursued to a reasonable extent all internal avenues of   appeal without a satisfactory or reasonable outcome having been achieved”.

I note in   the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We   find that the claimant did not exhaustthe grievance procedure made   available to him by the respondent and this proves fatal to the claimant’s   case…In constructive dismissal cases it is incumbent for a claimant to   utilise all internal remedies made available to him unless good cause can be   shown that the remedy or appeal process is unfair”.

The EAT in Donnegan Vs Co Limerick VEC UD828/2011 stated,”In   particular, the claimant must show that the respondent acted in such a way   that no ordinary person, could or would continue in the workplace”. Also   the respondent’s conduct was “not so unfair or so damaging to the   claimant’s rights and entitlements that she hid no option but to resign her   position”

Murray v Rockavill Shellfish Ltd [2002] 23   ELR 331 the EAT stated, “It has been well established that a question of   constructive dismissal must be considered under two headings, Entitlement and   Reasonableness. An employee must act reasonably in terminating his contract   of employment. Resignation must not be the first option taken by the employee   and all other reasonable options including following the grievance procedure   must be explored. An employee must pursue his grievance through the procedure   laid down before taking the drastic step of resigning”.

The Labour Court UDD 1635 Mary Kirrane v Barncarroll Area Development   Co Ltd stated, “Where constructive   dismissal is contended for it is for the person making the claim to establish   that the behaviour of the employer was such as to leave the appellant no   alternative but to terminate the employment or that the employer’s behaviour   has fundamentally undermined the employment relationship. The person claiming   constructive dismissal has an obligation to access available grievance   procedures in a course of attempting to deal with whatever situation has led   to consideration of termination of the employment”.

McCormack v Dunnes Stores : EAT UD 1421/2008

“The notion places   a high burden of proof on an employee to demonstrate that he or she acted reasonably   and had exhausted all internal procedures formal or otherwise in an attempt   to resolve her grievance with his/her employers. The employee would need to   demonstrate that the employer’s conduct was so unreasonable as to make the   continuation of employment with the particular employer intolerable”.