ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012590
| Complainant | Respondent |
Anonymised Parties | Warehouse Operative | I.T. Service Provider |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00016659-001 | 05/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00016659-002 | 05/01/2018 |
Date of Adjudication Hearing: 18/04/2018
Workplace Relations Commission Adjudication Officer: Gerard McMahon
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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:
The complainant had been employed as a warehouse operative with the respondent since Feb. 2015. His complaints are that he was not properly remunerated for overtime work and that his grievances were not given due consideration, necessitating his leaving the employment in August 2017 and claiming constructive dismissal. |
Summary of Complainant’s Case:
CA-00016659-001: The claimant asserts that he was left €80 short in respect of his overtime payments. On request, the claimant was asked to itemise the sum. Accordingly, a breakdown of the dates on which the claimant undertook overtime work, the sums paid to him in respect of same and a calculation of how much he should have been paid if he had received the (contracted ratio of) time and a half was submitted. A revised sum of €70.40 was claimed. CA-00016659-002: The claimant started work with the respondent on Feb. 16th, 2015. He claims that he was not furnished with a contract (despite requests). Over time, it is alleged, his workload increased significantly, but he was assured that he would be receiving a pay rise. The claimant didn’t receive this rise, though his workload continued to increase – an issue that he brought to the attention of his local managers. He also advised local management that he was feeling intimidated and stressed. This progressed to the point where the claimant was ‘signed off’ on stress leave (and was referred to counselling by his G.P.). On May 28th, 2017 he lodged a grievance in respect of the aforementioned matters and on June 8th, 2017 a grievance hearing was conducted. Arising therefrom, the claimant’s grievances were dismissed. In the claimant’s opinion, this hearing failed to give due weight to all relevant evidence (incl. the extent of his workload). On June 28th, 2017 (within the requisite 5 working days for the lodgement of an appeal) the claimant wrote to the respondent looking for ‘their witness statements, notes and evidence in relation to their investigation and a copy of my full personnel file’. This information was not provided. On Aug. 24th, 2017 the claimant resigned. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. The case file confirms that due notification of the hearing was issued and that no excuse\reason for absence was proffered by the respondent. CA-00016659-001: A review of the claim reveals that the employment contract provides for overtime at the rate of 1.5 (Mon.-Sat.). According to an email issued by the respondent (on Nov. 10th, 2017) to the claimant: ‘this is actually a misprint’. CA-00016659-002: See above. |
Findings and Conclusions:
CA-00016659-001: The claimant’s contract clearly provides for the relevant overtime claimed to be paid at the rate of 1.5. The respondent’s excuse in respect of a ‘misprint’ surfaced subsequent to the issuance of the aforementioned contract and the overtime work having been completed. CA-00016659-002: The term ‘constructive dismissal’ relates to those cases where the employee terminates their contract on account of the employer’s conduct. For example, an employee would be entitled to terminate the contract where the employer’s conduct constitutes a significant breach of the contract or in the event of the employer indicating that he/she no longer intends to be bound by one or more of its essential terms. The onus of proof that there was an act or omission on the employer’s part, constituting a breach of contract, resides with the employee. Whilst each case turns on its own facts, it is apparent that a hasty decision to resign on the employee’s part, without attempting in some way to resolve the problem (via, for example, the organisation’s grievance procedure), can make it difficult to discharge the onus of proof that is upon them. In this instance the relevant procedure was deployed and the (notably uncontested – see above) onus of proof has been discharged by the employee. Notably, the claimant advised that he has not been in gainful employment since the dismissal\resignation and furnished some evidence that he had actively sought alternate employment up to Jan. 2018. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00016659-001: The claim is well founded and the sum of €70.40 is awarded to the claimant. CA-00016659-002: The claim is well founded and the sum of €8,360 is awarded to the claimant |
Dated: 06/09/2018
Workplace Relations Commission Adjudication Officer: Gerard McMahon
Key Words:
Constructive dismissal |