ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009542
Parties:
| Complainant | Respondent |
Anonymised Parties | A Paver | A Paving Company |
Representatives | Dundon Callanan Solicitors | Penninsula Group Limited |
Complaint(s):
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-00012472-001 | 13/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00012472-002 | 13/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00012472-003 | 13/07/2017 |
Date of Adjudication Hearing: 27/02/2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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 submitted claims relating to unfair dismissal, unpaid overtime, wages and holiday and that he had not received his terms and conditions of employment in accordance with the Act. |
Summary of Complainant’s Case:
Constructive dismissal claim The Complainant commenced work for the employer as a paver in May 2016. The agreed terms of employment were as follows: €500 per week net. 5 days per week, Monday- Friday. Hours: 8am to 5pm. No work outside Limerick or the surrounding area. This was an important point for the Complainant, which he raised right at the outset and which the employer agreed to. The Complainant raised the possibility of getting his own transport to site, but employer insisted on the Complainant being picked up each morning in the company van. The Complainant found the Respondent extremely disagreeable to work with. The Respondent would often roar and shout. In September 2016, The Complainant had to have time off work due to palpitations brought on by the stress created at work by The Respondent’s behaviour. In June 2017, the Complainant heard from other employees that the employer had taken on work in Dublin and that the employees were expected to travel to Dublin for work for a whole week. Given the express agreement that he not work outside the Limerick area, the Complainant raised the issue with The Respondent. The Complainant was prepared to be very reasonable and even suggested that he could take a week unpaid. But the Respondent responded angrily, insisting the Complainant travel to Dublin. Given the breach of the agreement that the Complainant not have to work outside the Limerick area and the nature of The Respondent’s response, the Complainant had no choice but to resign his employment. The Complainant made a note of this discussion. The position was exacerbated by the failure of the employer to provide any written employment contract setting out the agreed terms of employment (including details of place of work and grievance procedure), by the Respondent’s aggressive reaction – and by his history of such behaviour towards employees. Terms of Employment claimThis claim is admitted by the employer. There appears to have been no attempt at all to provide any employment contract whatsoever. Given the serious consequences of the breach in this case, it is unclear why the employer has offered such low compensation for this breach. This is a case where the whole issue giving rise to the constructive dismissal was an issue about the place of work and where, instead of responding by offering a grievance procedure in accordance with contract, the Respondent responded with angry threats. This is a case of very real disadvantage and consequences arising from the lack of a contract setting out terms and conditions of employment. Payment of wages claimThere are three elements to this claim: Holiday pay: The Complainant calculates 12 days unpaid. The employer calculates 10 days unpaid. (It is unclear why, if the employer admits substantial non-payment, that has not been remedied long before now.) There is also a discrepancy in the pay rate applied. The employer is using a net daily rate of €87.71. The Complainant alleges a net daily rate of €100.00. The pay records, however, appear to show a net daily rate of €102.61. Unpaid days: The Complainant calculates 3 days unpaid. This relates to his final days at work prior to constructive dismissal. The employer calculates 2 days. (Once again, it is unclear why the employer has not remedied the wrongful non-payment of wages which it admits, long before now.) The same daily rate issue arises. Overtime: The Complainant says that he was supposed to start at 8:00am, but that he was generally picked up at home for work (an arrangement which the employer insisted upon), usually at 7:15am. They were almost always at site by 7:45am and often earlier. The Complainant was never paid for this overtime and calculates the unpaid time at €1,087.50 in accordance with Complaint Form.
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Summary of Respondent’s Case:
INTRODUCTION The Respondent is a Groundwork and Paving Contractor. The Complainant was engaged by the Respondent as a paver by the Respondent on 9th May 2016. The Complainant makes the following claims: That he did not receive a statement in writing of his terms and conditions of employment; That he had not been paid the amount due to him. Specifically, he claims that he was owed 3 days wages, that he was due 12 days holiday pay and that he was due an amount in overtime payment. That he was constructively dismissed. The Respondent admits liability in relation to the claims outlined with regard to the non provision of a contract and holidays as above, however it disputes the amount of pay that is due to the Complainant. From its company records the Respondent asserts that the Complainant is owed 2 days wages and 10 days of holiday pay. It denies that any overtime was worked or that, if it was worked, that the Complainant had any entitlement to payment in respect of overtime. The Respondent denies that the Complainant was constructively dismissed. The Respondent has made an offer of settlement in relation to the claims as follows; Terms of Employment (Information) Act Claim: €500 Payment of Wages Act Claim: €1052.52 10 days holidays @ €87.71 (net) = €877.10 2 days’ pay €175.42 Total: €1,052.52 Total in respect of both offers: €1,552.52
The Complainant’s solicitor made the following counter offer: Terms of Employment (Information) Act: €2,000.00 Payment of Wages Act €2,587.50 Total: €4587.50
The Respondent made the following counter offer to which (at the time of writing) there has been no response: Terms of Employment (Information) Act: €1,000.00 Payment of Wages Act €1,052.52 TOTAL €2052.52 The Complainant was engaged by the Respondent on the 9th May 2016 as a paver. The Respondent denies the Complainant’s assertion that there was, at any time, any indication from the Complainant that he was not prepared to work away from the Limerick area. In the interview for the role it was made clear to the Complainant that he would require his own transport for the job. The Complainant stated that, while he didn’t have his own transport at the time of the interview, he would have access to transport in the next few weeks. In order to facilitate the Complainant, another member of staff arranged to pick up the Complainant and drive him to and from work each day until he arranged his own transport. The Complainant never provided his own transport and therefore the transport arrangement discussed continued. This driving time was to facilitate the Complainant getting to work. It was not work time and it was not overtime. In May or June 2017 the Complainant worked overnight in Dublin without complaint. When he heard that there was another week of work scheduled in Dublin he called the Respondent and stated that he would not work away from his family (in or around the 26th June 2017). This was the first time the Complainant had ever raised any issue about working outside of the Limerick area. The work was due to start the following Thursday, 3rd July 2017. The Complainant also claims that after the week’s work in Dublin, a further week was scheduled in Kinsale – this is not true, the Respondent did not carry out any work in Kinsale in 2017. The Complainant offered to take the week off unpaid but this was impossible as a full complement of staff were required for the job. The Complainant requested his P45. The Respondent denies that the Respondent became angry and threatening at any point during this conversation, or at all. The Complainant did not turn up for work the next day or any day after that. The Complainant made requests for his P45 from the Respondent by text after his resignation however the Respondent was not prepared to provide a P45 without receiving a written notice of the Complainant’s resignation, which was never provided. Terms and Conditions of Employment The Respondent accepts that the Complainant did not receive a statement in writing of his terms and conditions of employment. The Respondent has made an offer of €500 in respect of this claim however this has been rejected. Payment of Wages Act The Respondent, having considered its company records, accepts that the following sums are due to the Complainant:
Payment of Wages Act Claim: €1052.52 10 days holidays @ €87.71 (net) = €877.10 2 days’ pay €175.42 Total: €1,052.52
The Respondent denies that any overtime was worked or, if worked, that any entitlement in respect of an overtime payment accrued. The Complainant claims for overtime for 45 minutes each day between 7.15am and 8am. The Complainant was picked up in the van because he did not have his own transport. This arrangement was to facilitate the Complainant. It was not working time. Even if the 45 minutes each day which is claimed by the Complainant was working time (which is denied), the Respondent asserts that the Complainant did not have any contractual entitlement to overtime, nor was it the Respondent’s custom and practice to pay overtime to its workers. Constructive Dismissal The fact of dismissal is disputed. The Complainant relies on the following facts to ground his claim for constructive dismissal: That he was asked to work outside of the Limerick area for a period of between one and two weeks despite there being a purported agreement that he would not be required to so work. The Respondent denies that there was any such agreement. The Respondent was not aware that the Complainant had an aversion to working outside the Limerick area as this had never been raised as an issue, not even when the Complainant had previously worked in Dublin/Navan a month previously. In addition, the Complainant has not behaved reasonably as he did not attempt to engage with the Respondent with a view to resolving his complaint. His own claim form states:
‘In June 2017 I heard that we were all expected to go working for a week in Dublin and that would be followed by work in Kinsale, Co. Cork. This was highly unacceptable to me in circumstances where we had an express agreement that I would not be required to work away from home. On 26 June I raised the issue with the Respondent and I offered to take the week off unpaid. However, he insisted I had to travel for this work. I said, “Well (name) , where does that leave us, I guess I’m finished so…’
Again it is noted that there was never any work scheduled in Kinsale. That is, as soon as the issue was raised, and before any solution to the Complainant’s problem could be discussed, he immediately resigned his employment. While it is accepted that there were no formal grievance procedures in place at the relevant time, it was nonetheless incumbent on the Complainant to present the complaint in a reasonable fashion and reasonably engage with any attempts to resolve the complaint presented. Therefore it is submitted that there are no facts upon which the Complainant can rely to ground his claim that either the Respondent breached a fundamental term of the contract thus entitling the Complainant to terminate his contract or that the Respondent conducted itself in such a way as to make it reasonable for the Complainant to so terminate. The Respondent accepts liability in relation to the claims under the Terms of Employment (Information) Act 197 and the Payment of Wages Act 1991 and remains happy to settle these claims in the terms outlined above. The Respondent submits that the Complainant has failed to make out his claim for unfair dismissal. |
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.
There were three claims made.
Under Claim reference number CA-00012472-003 the parties agreed though the sharing of information to the following;
The Complainant is entitled to 12 days unpaid leave. I award the Complainant 12 days pay under this section of the Claim reference number CA-00012472-003
The Complainant is entitled to 2.5 days unpaid pay . I award the Complainant 2.5 days pay under this section of the Claim reference number CA-00012472-003.
The Complainant also made a claim to be paid overtime for the time he travelled to and from work. However, the offer of a lift from his employer was freely taken up by him during this time and he performed no work or was not available for work during that time. The Complainant would have had to find his own way to/from the places of work each day other than he taking up the offer of transport to the work location, at no cost to the Complainant. This Complainant has not established that any work was done during this alleged overtime nor was he available for work during this time and was free to do as he pleased while in the Respondents transport. This section of claim refence number CA-00012472-003 fails accordingly as the Complainant has not established any legal or legitimate right to be paid for these times.
Under claim reference number CA-00012472-002 the Respondent accepted that no contract of employment was provided to the Complainant within two months of his commencement of employment in breach of Section 3.(1) of the 1994 Terms and Conditions of Employment (Information) Act and I award the Complainant 2,000 Euros for this breach of the 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.
With regard to the claim for constructive dismissal, Claim Reference Number, CA-00012472-001, the core issue was a conversation between the owner of the Company and the Complainant where the Complainant says he specifically sought and got an assurance that he would not have to work outside the Mid West area for any period due to personal issues. The Respondent denied that this assurance was given to the Complainant. It was impossible for the Adjudicator to determine which version of events was the most accurate. In this case the fact that the Complainant had not been given any written contract stating his location of work does not help the Respondent as he had the legal obligation to state the location of work clearly and in writing to the Complainant. The other important issue is that the Complainant was not given any written grievance procedure to follow prior to him executing his decision to leave the employment after he was informed he must spend four days in Dublin and away from home.
The mitigating factors for the Respondent in this case were that he did seek to meet the Complainant after the disagreement about travelling to Dublin to discuss the matter and also that from the evidence of the Complainant he did not have any major personal issues that week he was requested to travel to Dublin but was relying on the overarching assurance in general terms that he says he was given in the job interview.
As the Respondent failed to define the location of work in writing, the Complainant thought he had an assurance that he would not be asked to travel outside the Mid west area. He left the employment of the Respondent when he felt he was being forced to travel and stay away for four nights.
On balance, the Respondent failed to define the place of work and therefore the request to stay in Dublin for four nights may not have been part of the Complainants verbal contract of employment and he was entitled to decline this order to work in Dublin. However, the Complainant also did not give sufficient concrete reasons for declining this request in the specific week he was asked to travel and contributed to his own dismissal, to a degree. Therefore, I find that the Complainant was unfairly dismissed but that he contributed to his dismissal by refusing what many would see as a reasonable request, given the ambiguity of the assurances he says he was given regarding the non working outside the Mid West. The Respondent, if his evidence was accurate, offered the Complainant the opportunity to travel up and down to Dublin daily. This would also be a mitigating factor. Overall, considering all the issues I find that the Complainant was unfairly dismissed but that the Complainant also contributed to his dismissal and therefore the quantum of compensation should be reduced accordingly. I award the Complainant 4,000 Euros compensation.
Dated: 15 August 2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Unfair dismissal and pay and terms of employment issues |