Act

Complaint 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-00014183-005

24/09/2017

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

CA-00014183-006

24/09/2017

The complainant began work with the respondent on August 15th 2016.

The employment terminated on September 18th 2017 when the complainant quit the employment.

He was paid €500 per week.

The complainant provided detailed evidence of occasions when he had not been paid his wages in full, or not paid on the due date.

This began in October 2016 when payment was delayed, and then over succeeding weeks he was left short. By Christmas he was owed €500 which was paid in early January.

However, detailed evidence was submitted of non-payments. By mid-February he was owed €1,000, by mid-April this had risen to €3,000, rising further to €6,000 in July until eventually in September, when he decided he could take no more it had reached €5,000.

He then resigned and says he was constructively dismissed

There were two hearings in the case.

At the first the respondent was in the WRC building but was not directed to the hearing room.

The hearing was re-scheduled.

The respondent indicated that he wished to apply for a postponement of the re-scheduled hearing as he would be on holiday. However, he failed to respond to a request for verification of the application until very late on the day before the hearing.

This was not communicated in sufficient time to allow consideration of the request and the hearing proceeded in his absence.

He did submit a written response on October 25th, 2017 which raised a number of issues but which did not address the complaints.

The complainant claims constructive dismissal.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination by an employer of a contract of employment.

It is, after all, a breach of a legally binding contract.

In the case of the employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings. Most complaints under the Act do arise when an employer has terminated the employment and these then will be the tests as to whether the dismissal has been a fair one.

In general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in ireland’ the late Dr Mary Redmond has said (at p340

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employers grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

In respect of a failure to pay wages there could hardly be a more fundamental breach of the contract of employment. It goes to the heart of that contract.

The complainant could not be said to have acted peremptorily.

He continued to work for nearly a year after the respondent began the patter of non-payment. By the time he left he was owed nearly three months’ wages.

The response received from the respondent failed entirely to address any of the issues raised in the complaints; preferring to make a number of unrelated criticisms of the complainant’s performance which are not relevant to the complaints.

The quality of the evidence submitted by the complainant’s representative was excellent and highly credible.

By reference to the Berber test the complainant could not have been expected to endure this treatment for a moment longer than he did and he easily meets the test in the authorities cited above for a constructive unfair dismissal.

He puts his losses attributable to the dismissal at €2,000 as he gained employment reasonably soon.

I also accept that the respondent failed to provide him with a statutory statement of his terms of employment under section 7 of the Terms of Employment (Information) Act. I award him four weeks’ wages for the breach.

For the reasons set out above I uphold both complaints. In respect of complaint CA-00014183-005 under the Terms of Employment (Information) Act, 1994 I award him four weeks’ wages in the amount of €2,000 and in respect of complaint CA-00014183-006 under the Unfair Dismissals Act I award him €2,000.