Complainant

Respondent

Anonymised Parties

A Counter Assistant

A Fast Food Takeaway

Representatives

Marius Marosan

Terry Gorry, Solicitor

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-00019333-001

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019333-002

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019333-003

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019333-004

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019333-005

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019333-006

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00019333-007

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019333-008

21/05/2018

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

CA-00019333-009

21/05/2018

These complaints were submitted by the complainant against the respondent on 21st of May 2018. Thus the relevant six month period for the purpose of these complaints dates from 22nd of November 2017.

The complaint relates to alleged breaches of the Terms of Employment (Information) Act, 1994, the Organisation of Working Time Act, 1997, the National Minimum Wage Act, 2000 and the Unfair Dismissals Act, 1977.

The complaints were submitted to the Workplace Relations Commission (WRC) on 21st May 2018. The cognisable period of the complaints is 22nd November 2017 to 21st May 2018. As the complainant resigned on the 22nd ofFebruary 2018, the complaints relate to 22nd November 2017 to 22nd of February 2018.

I proceeded to a hearing of these complaints on 19th of November 2018.  

The complainant commenced employment with the respondent on the 6th of July 2017 and her employment terminated on 22nd of February 2018.   The complainant submits that she never got a contract of employment.

The respondent submits that a copy of her Terms and Conditions of Employment was given to the complainant on her commencement of employment.

The Applicable Law

Section 3 of the Terms of Employment, (Information) Act, 1994 states as follows:

3.(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) the rate or method of calculation of the employee ’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee ’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

S.I. 49 of 1998, Terms of Employment (Additional Information) Order 1998, provides, at Regulation 3(1) as follows: -

3. (1) In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee's employer shall, within two months after the employee's commencement of employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.

Section 7 of the Terms of Employment, (Information) Act, 1994 states as follows:

7(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3 , 4 , 5 or 6 shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under Section 17 of the Unfair Dismissals Act 1977 .

The respondent provided a copy of the complainant’s terms and conditions of employment which was dated 7th of August 2017. The complainant advised the hearing that she had only received a written statement of her terms and conditions of employment after an inspection by a WRC inspector which took place in 2018. The complainant submits that the contract was not signed and there was no place for the employee’s signature.

In addition, the contract was not signed by the complainant and there was no evidence produced that a copy had been given to the complainant at the time or within two months of the commencement of her employment.  As there was no signed letter from the complainant confirming receipt of her terms and conditions of employment, I accept the complainant’s evidence that she did not receive a copy of her contract as required by the legislation.

Having considered the submissions of both parties, I declare that the complaint is well founded. The respondent is directed to pay the complainant €500 in compensation.

The Complainant submits that she worked 11.5 hours every Sunday and got paid the same basic rate for this work and did not receive a Sunday Premium payment.   The complainant submits that she never received a Sunday Premium payment while in the employment of the respondent.

The respondent submits that in accordance with its Terms and Conditions of Employment all staff get paid a Sunday Premium. The respondent submits that the complainant was paid this and that she never worked 11.5 hours on a Sunday as her normal attendance hours on a Sunday was 3pm to l0pm.

The respondent submits that the complainant was paid €9.25 per hour for hours worked Monday to Saturday and €9.35 for hours worked on Sunday.   The respondent submits that employees received a premium payment of 10 cents per hour in respect of working on Sundays.   The respondent submitted a statement of weekly wages signed by the complainant.

The complainant submits that she did not receive a premium for working on a Sunday. The complainant submitted that she worked from 12 to 12 on Sundays and still received the same rate of pay as on other days of the week.

The respondent submits that the complainant was paid 10 cent per hour premium for Sunday work in accordance with paragraph 11 of the written statement of her terms and conditions.

The respondent in its submission states that the complainant worked 3 to 10 on a Sunday and sometimes 5 to 12 which is 7 hours less unpaid breaks. The respondent produced Organisation of Working Time timesheets signed by the complainant to verify this.  

The complainant submits that she never signed the Organisation of Working Time records and that this is the first time she has seen these records.   The complainant then added that the first time she had seen these records was after a WRC inspection was carried out.

Sunday Premium

Section 14(1) of the Organisation of Working Time Act, 1997 provides as follows:

14.(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

The respondent advised the hearing that it is up to the employer to decide on a premium for Sunday work and the employer in this case paid a premium of 10 cent per hour worked.

According to the contract the complainant was paid a rate of €9.25 per hour with a Sunday premium of 10 cent per hour.

In all of the circumstances of this complaint, I find that the respondent provided adequate records that confirmed its position on Sunday work, both in terms of hours worked and premium rates that applied. On that basis, I do not find that the respondent breached the legislation as claimed.

Having considered the submissions of both parties, I declare that this complaint is not well founded.

The complainant submits that she worked up to 12 hours/day without breaks.

The respondent submits that all staff including the complainant get their statutory break entitlements in accordance with their Terms and Conditions of Employment and these are set out in the respondents OWT records.

Section 12 of the Act provides that an employee shall not be required to work more than 4 hours 30 minutes without a break of at least 15 minutes and shall not work more for more than 6 hours without a 30-minute break. This 15-minute break can be included in the 30-minute break but would have to start no later than 4 hours and 30 minutes after the commencement of work.

The complainant advised the hearing that she had received no breaks during her working day especially when it was busy.

The respondent stated that records are kept and referred the hearing to an appendix containing start and finish times for the complainant and which also sets out break entitlements. The respondent referred to the fact that it had undergone a WRC inspection in 2018 and that no reference had been made by the inspector to any breaches of the act in respect of breaks.

The complainant stated that it was for the respondent to prove that breaks had been taken where a claim is made in that regard and no mention of any breaks taken or times of breaks is made in the document produced by the respondent and they have failed to produce any record of breaks taken by the complainant. The respondent at the hearing was unable to produce sign in and sign out sheets for breaks taken by the complainant.

Accordingly, I am satisfied from the evidence adduced that this claim succeeds and I award the complainant €500 for the breach.

I find this complaint to be well founded and I award the complainant €500 for the breach.

The complainant submits that she worked 7 days a week for the duration of her employment and did not get weekly rest periods.

The respondent submits that the complainant only worked 5 days in a week and as such did get her weekly rest periods. The respondent submits that the complainant worked 35 hours per week on average as evidenced by the rosters produced by the respondent.

The Applicable Law

Section 13 of the Act provides an entitlement to weekly rest periods

2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

The complainant advised the hearing that she had for the entire month of December worked 7 days a week apart from Christmas day when the restaurant was closed.    The complainant did not produce any copies of rosters or records of hours worked for the purpose of this claim.

The respondent denied this and advised the hearing that the complainant worked 35 hours per week on average.   The respondent in support of this referred to OWT records of hours worked by the complainant which he provided to the hearing, these records indicate that the complainant was rostered to work 33-35 hours per week on average.

Having reviewed the records submitted by the respondent I am satisfied based on the totality of the evidence adduced that the complainant did receive her weekly rest period of at least 24 hours in each 7-day period.

Having considered the submissions of both parties, I declare that this complaint is not well founded.

The complainant submits that she was not paid for her annual leave/ holiday entitlements

The respondent submits that the complainants only issue with them is in respect of her final weeks' pay and holiday pay and submits that when she left (of her own accord) she left no forwarding address or contact number. The respondent submits that the complainant did call one day to the restaurant after this, but the owner wasn't there. The complainant again left no forwarding address or contact number. The respondent submits that he has since forwarded to the complainant her final weeks' pay, holidays & P45 (copy attached)

The Applicable Law

Section 19(1) of the Organisation of Working Time Act, 1997 provides as follows:

19.(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

I note from the records submitted by the respondent that the complainant worked and was paid for 35 hours per week for the majority of the time.

The respondent advised the hearing that the complainants only valid issue with them was her final weeks' pay and holidays. The respondent advised the hearing that the complainant left of her own accord in February 2018 and that she left no forwarding address or contact number.  The respondent went on to state that the complainant had called to the restaurant one day after this but that he wasn’t there. The respondent stated that the complainant still left no forwarding address or contact number.

The respondent stated that once he had obtained an address for the complainant he forwarded to her final weeks' pay, holiday pay & P45.  

The complainant agreed that she had received holiday pay to the amount of €687.60 after she had left. Both parties agree that the complainant received €687.60 in holiday pay from the respondent on 11th of June 2018.   The complainant stated that she should however have received €1500 in holiday pay as she submits that she had worked 60 hours per week while employed by the respondent.   As I have concluded in a separate complaint that the complainant worked an average of 35 hours a week and not 60 hours and having reviewed the records submitted by the respondent I am satisfied that the complainant was paid her annual leave entitlements.

Having considered the submissions of both parties, I declare that this complaint is not well founded.

The complainant submits that she was never paid or compensated for working on a bank holiday.

The respondent submits that all his staff including the complainant get their public holiday entitlements and these are set out in the Terms and Conditions of Employment.

The Applicable Law

Section 21(1) of the Organisation of Working Time Act, 1997 provides as follows:

21.(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The complainant advised the hearing that she was paid the same rate for public holidays as she was for other days. She stated that she worked four public holidays in the relevant time period. The respondent advised the hearing that the complainant was granted paid time off in lieu of working public holidays. The respondent went on to state that the complainant was paid for Christmas day 2017 and the restaurant was closed on that day. The respondent went on to state that the complainant got paid time off in lieu for all 3 bank holidays in the cognisable period namely Christmas Day, St. Stephens Day and New Year’s Day.   The respondent as proof of this assertion provided rosters which recorded these days off in lieu as being taken on the 14th and 15th of January 2018 and on the 25th of February 2018.

The complainant at the hearing stated that without proper payslips it is very hard to show that pay for a certain day was in fact for a particular bank holiday. The respondent stated that it is being asked to reply to general assertions which are being made by the complainant and which are being made without a scintilla of evidence being put to them.

Having reviewed the records submitted by the respondent, I am satisfied that the complainant received her entitlements with respect to the Public Holidays that occurred within the cognisable period of the complaint.

Having considered the submissions of both parties, I declare that the complaint is not well founded.

The complainant submits that she was paid 5 Euro/hour for the entire duration of her employment. She submits that she requested a statement of her average rate of pay, but the respondent refused to provide one.

The respondent submits that the complainant was paid the National Minimum Rate when she started and that same was increased on 0l/01/2018 and that this is verified in the attached Terms and Conditions of Employment and in the weekly statement of wages signed by the complainant.

Section 24 of the Act deals with disputes about entitlement to minimum hourly rate of pay. It stipulates:

“(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the [adjudication officer] may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be”

Section 24 of the National Minimum Wage Act makes it mandatory for an employee to request of their employer a statement of their average hourly rate of pay in respect of the relevant pay reference period.

The respondent at the hearing submitted that the complainant had failed to request a statement of her hourly rate in accordance with Section 23 within four weeks before lodging a claim in relation to this matter on the 21st of May 2018. The complainant advised the hearing that she had sent the respondent a text message on the 10th of April 2018 asking for her average hourly rate.   The complainant produced this at the hearing.   The complainant went on to state that she received no reply to this text message.

The complainant submits that the respondent did not provide the statement of her hourly rate when requested which she submits is proof that these records were only created after the complainant lodged her complaint with the WRC. The complainant added that the respondent should not have had any problem providing her with a statement of her average hourly rate of pay if everything was above board. The respondent in reply to this stated that he did not reply as he wanted to talk to her in person to discuss matters but the complainant told him that she could not do that as she was now working in Bray.

The respondent produced records showing that the complainant was paid €289.69 per week every week from the commencement of her employment to the end of December 2017, this was for a 35-hour week before breaks which equates to €9.66 per hour. These records show that the respondent paid the complainant €299.06 from the 5th of January 2018 to the 23rd of February 2018 for which the respondent states the complainant worked a 35-hour week less unpaid breaks which it submits amounts to working time of 28 hours per week. This equates to €10.68 per hour

The respondent has produced records to show that the complainant received €299 per week and signed for same. The records do not provide any details of tax prsi or other deductions and it is clear from the evidence of the parties that the €300 was the net amount paid to the complainant.  The time period under consideration dates from 22nd of November 2017 to the end of the complainant’s employment with the respondent which was on 23rd   of February 2018.

On the balance of probabilities and having reviewed the totality of the evidence presented, I accept the respondents position that the number of hours worked as per the time sheets and the rate of pay that applied was in compliance with the provisions of the National Minimum Wage Act, 2000.

Having considered the submissions of both parties, I declare that the complaint is not well founded.

The complainant submits that she worked an average of more than 60 hours every week and that she had never previously seen or signed the timesheets purporting to state her hours of work.

The respondent submits that the complainant’s normal attendance hours were 7 hours a day less breaks for 5 days.   The respondent submits that in 2018 the complainants average working week was 28 hours or less after breaks and in 2017 was 30 hours or less after breaks.

Section 15 of the Act provides that

.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or  

(b) 6 months—

The complainant submits that she worked more than 48 hours in a seven-day period during the relevant period.   The complainant submits that she worked 10 hours a day 6 day a week   but for December 2017 she worked 7 days a week. The complainant did not produce any copies of rosters or records of hours worked for the purpose of this claim.

The respondent disputes this and advised the hearing that the complainant worked 33-35 hours on average per week.   The respondent in support of this referred to its OWT records which he provided to the hearing, these records indicate that the complainant was rostered to work 33-35 hours per week on average.

Having reviewed the records submitted by the respondent I am satisfied on the balance of probabilities that the complainant did not work in excess of the weekly maximum number of hours permitted by the legislation.

Having considered the submissions of both parties, I declare that the complaint is not well founded.

The complainant submits that she was forced to leave her job as she was getting almost nothing for hard work and felt like a slave. She submits that she requested a decent wage but was refused. The complainant asserts that she requested a statement of her hourly rate of pay in line with the provisions of the National Minimum Wage Act, 2000 but that the respondent failed to comply with this request. The complainant stated that she was treated very badly by the respondent and resigned from her employment on 22nd of February 2018 as a result.

The respondent strongly repudiates this claim.  The respondent submits that prior to the weekend of 11/02/2018 the complainant resided in Co. Kildare (next door to the respondent and in accommodation provided by the respondent). When she moved into Dublin city centre she asked if her finishing time and hours could be changed to accommodate her getting a bus back into city. The respondent agreed to this and this is reflected in the rosters for that time period presented in evidence.

On 22nd of February the complainant muted to other staff members that the commute from Dublin city centre to work in Kildare was too inconvenient and she never returned to work. Other than texting a member of staff saying she wouldn’t be coming back the respondent didn’t receive any notification of her resignation.  

The respondent also submits that the complainant resigned without raising any grievances and in those circumstances, her complaint of alleged Constructive Unfair Dismissal cannot succeed.

The respondent at the hearing referred to the fact that the complainant does not have the required 1 years’ service for the purpose of making a complaint under the unfair Dismissals Act. The respondent also stated that the complainant left of her own accord in February 2018 and without raising any issues with him. The complainant advised the hearing that she was forced to leave her employment with the respondent due to the fact that she was getting almost nothing for hard work and that she had requested a decent wage but was refused.   The complainant in citing the basis for her complaint submits that it is based on exercising her rights under the National Minimum Wage Act, 2000.

The complainant advised the hearing that she had sent the respondent a text message on the 10th of April 2018 asking for her average hourly rate.     The complainant produced this text message at the hearing. The complainant went on to state that she received no reply to this text message.  

The complainant advised the hearing that she and her husband had moved to Dublin city centre in February 2018 and that she intended to continue to work in Kildare and to commute to work in Kildare from Dublin but that she was earning so little that she could not afford to continue to commute from Dublin to Kildare. The complainant told the hearing that she asked her manager Mr.C if she could get more money due to the cost of the commute but stated that she was told that she would not be able to get any extra money.

The respondent advised the hearing that the complainant moved to a Dublin 4 location in February 2018 as she stated that she and her husband are young and wanted to enjoy life. The respondent stated that she added that there was nothing to do in Kildare at night.     The respondent advised the hearing that the complainant had continued to work for him for a short while after she had moved to Dublin but he stated that after a few weeks she left without raising any issues with him.  The respondent stated that the complainant following her move to Dublin city centre had requested an earlier start and finish time to facilitate her getting a bus back into city after work. The respondent agreed to this and this is reflected in the rosters presented in evidence.   The respondent went on to state that the complainant had never asked him for a raise and had never raised any issue or grievance in respect of any difficulty in relation to her pay or the cost of commuting to work from Dublin.

The complainant does not have the required 12 months service but is asserting that that she was forced to leave due to the fact that she was being underpaid by the respondent and that she had requested a raise and was refused.   She also submits that she had requested a statement of her hourly rate of pay in line with the provisions of the National Minimum Wage Act, 2000 but that the respondent failed to comply with his request.   There was no evidence presented to suggest that the complainant raised a grievance prior to resigning.

Constructive Dismissal

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which because of the conduct of the employer, the employee was or would have been entitled, or 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”.

The burden of proof rests with the Complainant in this case.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated,

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

Both parties agree that the complainant moved to Dublin in February 2018 and that this was the complainant’s choice to move to Dublin city centre. The complainant in her evidence stated that following her move to Dublin she could not afford to commute to work in Kildare.   She further states that she asked her manager if she could get a raise but that she was told she would not get anything extra.   Witness for the respondent and owner Mr. M advised the hearing that the complainant never raised an issue with him in respect of pay or in respect of the affordability of the commute following her move to Dublin.       

I note however that the complainant in this case left the respondent’s employment on the 22nd of February 2018. I also note the complainant’s evidence that she submitted a request for a statement of her average hourly rate of pay on 10th of April 2018, almost 2 months after leaving the respondents employment.       In addition, the complainant has submitted that prior to her leaving she sought a pay rise and that the respondent’s failure to pay her the minimum wage forced her to leave.     I am satisfied from the evidence adduced that the complainant’s reason for leaving the respondents employment was first and foremost due to the fact that she and her husband had moved to Dublin city centre at the start of February and the respondent business was based in Kildare and that it was not due to her exercising her rights under the National Minimum Wage Act.

In all of the circumstances of this complaint, I find that the complainant did not act reasonably in resigning prior to raising a grievance and affording the respondent an opportunity to respond to her complaints. Accordingly, I conclude that the complainant has failed to discharge the burden of proof.

Having considered the submissions of both parties, I declare that the complaint is not well founded.