Complainant

Respondent

Anonymised Parties

A Take Away Manager

A Restaurant

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00009408-005

30/01/2017

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

CA-00009408-006

30/01/2017

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

CA-00011596-001

13/04/2017

The respondent employed the complainant from 25th of October 2015 until the 15th of January 2017 as a take away manager. He was paid €400 net per week. The parties made written and oral submission to the hearing. The complainant gave oral evidence at the hearing. The respondent did not give evidence.

CA-00009408-005: The complainant submits that he did not receive written terms and conditions of employment in breach of s. 3 of the Act.

CA-00009408-006: The complainant submits that he was not formally informed of changes to his terms and conditions of employment in breach of s. 5 of the Act.

CA-00011596-001: The complainant submits that he was constructively dismissed for various reasons as follows. He was initially engaged to work in Ballygar and he worked 7 days per week and 12 hours per day other than Friday and Saturday on which he worked an additional 3 hours per day (total of 90 hours per week. He was not provided with rest breaks or appropriate time off. He sought clarification concerning his terms and conditions but nothing was forthcoming. He requested an increase for his responsibilities and the onerous time commitment without success although he was informed that it would be addressed when the take away in Tuam was up and running. His son arrived from Italy in December 2015 and worked part-time at the Tuam premises. When his son’s relationship with the respondent broke down in March 2016 he offered to go there until a suitable alternative could be arranged. This involved a two-hour round trip for him. When he sought to return to Ballygar he was informed that Tuam was now his base despite the temporary nature of the arrangement. He was told that if that was unsuitable that he could resign. A handwritten resignation letter by the respondent was handed to him at that time and he refused to sign it. On the 9th of January the complainant fell outside the premises in Tuam and sustained an injury. The respondent refused to sign a letter to social welfare in this regard despite assurances to the contrary. He was left with no alternative thereafter but to resign his position. The bond of mutual trust had been broken, there were numerous breaches of the complainant’s contractual and statutory rights perpetrated by the respondent.

CA-00009408-005: The respondent accepts that no written terms and conditions were provided.

CA-00009408-006: The respondent submits that any changes were discussed and agreed.

CA-00011596-001: The respondent submits that the complainant was not dismissed rather he resigned his position. He had been working at the premises in Tuam prior to resignation of his son from Ballygar. He was informed that there was no position for him at Ballygar. There was an incident at around the same time where the respondent expressed some dissatisfaction with the employees workto which he responded that he had too much work to do. He went to the back of the premises for a cigarette where he appeared to cut himself and said that he was not feeling well. He went home and subsequently met the respondent to explain that he was suffering from stress and had been prescribed medication which he was obliged to take for two/three weeks. He returned four days later requesting an injury at work form for social welfare to claim injury at work benefit as he was unfit for work arising from an injury at work. The respondent refused to comply as he had not sustained an injury at work. She was approached again later with a request to sign the form which she again refused. He returned a few days later requesting a letter of dismissal. The respondent explained that this was not the case and that the position remained open at Tuam. The issue of resignation arose and she proffered to write a letter of resignation if he wished to resign. He subsequently left. He worked for another take away three months later and opened a restaurant recently.

CA-00009408-005: Noting that the respondent does not demur and that the breach has contributed to a less than satisfactory I find that a breach of s. 3 has occurred and consider compensation at the higher end of redress appropriate.

CA-00009408-006: s. 5 of the Act provides for mandatory written notification of changes arising to “any of the particulars of the statement furnished by the employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than – (a) 1 month after the change takes effect, or …………… (irrelevant)”.

CA-00011596-001: The complainant in evidence stated that he worked hours far greater than the statutory limits provide although I am not dealing with that matter as no complaints have been made to me in accordance with those provisions. In any event it has been referred to the inspectorate. I am however obliged to take his evidence into account. It had no material impact in my view as it was not complained of in advance nor was it raised externally.                                           It appears that the nature of the employment relationship was fraught in its latter days which was probably reflective of the deteriorating personal relationship at the same stage.

In his evidence the complainant stated that on completion of the sick leave period he refused to go to Tuam and that he saw the respondent each day and requested that she pay him his back week (week in hand). He said that he signed the letter of resignation which the respondent wrote on the 15th of January 2017.

Furthermore, it emerged in his evidence that he had been less than forthcoming in respect of his attempts to mitigate his loss and it was submitted by the respondent that in those circumstances he was able to account for any loss.

Complaints of constructive dismissal are notoriously difficult to sustain as the bar is set at such a high level. Not alone has the level of unreasonableness on the part of the employer to be oppressive but it must be adequately proven. The employee must demonstrate that their own behaviour was at an acceptable standard of reasonableness (mirror image concept).                  

In the instant case I am satisfied that the behaviour of the employer has been unreasonable to the extent that it did not set out or discuss in clear and unambiguous terms the nature of its own and the employee’s obligations under the implicit contract and if it had done so the level of complication and ambiguity for all parties would have been removed. This unreasonable behaviour is manifest in its blank refusal to countenance any move back to Ballygar without explanation. The offer to write the resignation was wholly inappropriate and extremely unreasonable in my view. It was submitted that there were other avenues open to the complainant even after the cessation. I take the point but isn’t that true in relation to all conflicts arising in all relationships. I’m required to consider the behaviour of the parties up to the point at which the employment relationship became irrevocably broken.

I am satisfied that the level of unreasonableness on the respondent’s part was oppressive to the extent that it justified the complainant’s resignation in circumstances where he had taken reasonable steps to preserve the employment relationship up to that point.                                             I find that the constructive dismissal standard has been met in this case. The appropriate remedy is one of compensation and in assessing the quantum I will have regard to the comments made by the solicitor for the respondent as it relates to quantum.

CA-00009408-005: The complaint is well founded. I hereby require that the respondent pay the complainant €1,500 (say one thousand five hundred euro) in compensation for breach of s. 3 of the Act.

CA-00009408-006: The complaint is not well founded.

CA-00011596-001: The complaint is well founded. I hereby require that the respondent pay the complainant €3,000 (say three thousand euro) in compensation.