Complainant

Respondent

Anonymised Parties

HGV driver

Haulage company

Representatives

Self

Self

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00009315-001

26/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00009315-002

26/01/2017

This recommendation needs to be read in conjunction with decision issued under ADJ-00006476.

The situation the Complainant found himself in was that on the 23rd of December 2016 the day before Christmas Eve he was advised that his pay for the days worked 14th, 15th and 16th of December were being processed. The Complainant asked the Respondent for cash to keep him going over the Christmas period.

The Complainant disputed that he was drunk on the 23rd of December 2016.

He stated that he had given his bank account to the Respondent in plenty of time. He relied on the texts that were submitted that went between the parties from the 23rd of December 2016. The Complainant’s position was that at close of business on the 23rd of December he had still not received any payment and he found this completely unacceptable. Texts were sent from the Complainant to the Respondent at 02.14am in the morning. Further texts were sent by the Complainant to the Respondent on the 27th of December 2016 at 00.42am and 01.03am.

The Complaint advised that there was a particularly odious email he received but this was not furnished to me.

The complainant resigned from his position due to the actions of the Respondent.

The Complainant failed to submit tax documents to allow him to be set up as an employee of the Respondent with Revenue.

The Complainant was eventually registered on an emergency tax basis.

The Complainant was paid as agreed for the days worked.

The Complainant engaged in harassing texts.

From my position, there appears to be fault on both sides however more so on the Complainant’s part in relation to how the situation escalated. I have set out the failure on the part of the Respondent under ADJ-00006476.

As regards the reaction of the Complainant, I don’t accept that his behaviour was reasonable in the circumstances. The complaint of the Complainant is that of constructive dismissal. The statutory definition set out in Section 1 of the Unfair Dismissals Act 1977 (as amended) contains two tests. The contract test where the employee claims an entitlement to resign on the basis there has been a significant breach of contract by the employer which goes to the root of the contract or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The other test is that 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 claim was lodged on the 26th of January 2017 citing the 23rd of December 2016 as the date the employment ended.

The evidence from the Respondent was that the payment for the first week was made on the 23rd of December 2016. The printout from banking online shows that the payment was processed on the 23rd of December 2016.

The Respondent should have made the payment earlier than that particular day especially taking into account the practice of Banks to advise customers of the cut-off date for payments over the Christmas period for payments to be made.

That being so, however the Complainant did not submit tax documents to the Respondent to allow him to be set up as an employee and the texts sent by him which have been submitted to me reflect behaviour on his part which could not be described as reasonable. It is unfortunate that this all took place over the Christmas period.

I make no recommendation in this case and dismiss same.

Constructive dismissal + delay in paying wages + Christmas banking