Complainant

Respondent

Anonymised Parties

Security Officer

Security Company

Representatives

Simon Donagh BL, Nikaela Rusk Connolly of Finan Fleming Solicitors

Shane Glynn of Mason Hayes & Curran, Alan Crowley, Shea McNeils, Pat Byrne

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00024160-001

14/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00024160-002

14/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00024160-003

14/12/2018

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

CA-00024160-004

14/12/2018

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

CA-00024160-005

14/12/2018

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

CA-00024160-006

14/12/2018

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

CA-00024160-007

14/12/2018

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

CA-00024160-008

14/12/2018

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

CA-00024160-009

14/12/2018

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

CA-00024160-010

14/12/2018

The Complainant was employed as a Security Officer from 1st February 2017 to 1st August 2018. He was paid €1,900.00 gross per month. He has claimed that the Respondent did not give him a contract of employment, they made illegal deductions from his wages, he did not get a Sunday premium, daily rest breaks, he did not get compensated for Public Holidays and he was constructively dismissed. He is seeking compensation.

The Complainant stated that he signed a copy of his contract of employment, but the Respondent did not give him a copy of it.

The Respondent stated that when he started this employment he was brought into the office and he was given a contract of employment. He signed as follows; “I hereby acknowledge that I have received, read and understood this statement of employment and I hereby agree to be bound by the terms and conditions of employment set out therein”.

After he signed it, he was given a copy.

I note the conflict of evidence in this case.

I note that the Complainant signed that he received the contract of employment.

On that basis I find that if he signed that he received it and the matter is in dispute then on the balance of probability I find that he did receive it.

€500 CA 24160-002

He stated that €500 was paid by the company on 17th July 2018, in compensation for breaches of the Working Time Act. This was then deducted in the final payment.

€605 CA 24160-003

He stated that he was underpaid on the hourly rate for 2017, 2018 amounting to €500 based on being given €12.00 instead of €12.50 per hour. He then stated that he was underpaid €105 due to being underpaid the hourly rate which was less than the Employment Regulation Order.

€500 CA 24160-002

They stated that a named member of management gave him a personal loan of €500 as he was experiencing financial difficulties and he needed to pay his rent. This loan was then deducted from his last payment. This was an advance of wages and was recouped so it was not a deduction from his wages.

€605 CA 24160-003

They stated that €500 of the €605 was based on an allegation of being paid the wrong basic rate of pay of €12.00 per hour instead of €12.50 per hour. They stated that the correct rate of pay was €12.00 per hour. They stated that he was claiming for all of 2017 and 2018. This was out of time

€500 CA 24160-002

I note the conflict of evidence in this part of the claim.

I find that the Complainant was unable to advise where the figure of €500 came from, what exactly was it related to.

Whereas the Respondent stated that it was a personal loan from a manager, which I find is also unusual.

On the balance of probability, I conclude that the Complainant has failed to convince me that this was an illegal deduction.

€605 CA 24160-003

I find that this claim is framed to incorporate alleged underpayment as far back as 2017.

Request to extend the time limit

The Complainant stated that he had long discussion with the Respondent about his wages, rate of pay etc. He believed that it would be resolved but it wasn’t and it led to him resigning his position.

The Respondent stated that they disputed that they had protracted discussions about wages. They stated that he gave no notice of leaving. They only found out that he had left when he went to Portugal.

Decision on extension to the time limit

I refer to the Labour Court in the Cementation Skanska V Carroll DWT0342 which stated, “ in considering if reasonable cause exists it is for the complainantto show that there are reasons which both explains the delay and afford an excuse for the delay…In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and the circumstances known to the complainant at the material time”

I find that the Complainant has not put forward any convincing case to convince me extend the time limit. I also note that he consulted his legal adviser on 17th August 2018 and did not submit his claim to the WRC until 14th December 2018.

I have decided not to grant the extension to the time limit. The period that may be investigated is 15th June 2018 to 1st August 2018 when the employment terminated.

Sunday premium CA 24160-001

His hours of work were predominantly over the weekends. His contract of employment states, “the fact that you may be required to work on shifts or over the weekend to include a Sunday has been taken into account when calculating your salary”. His rates of pay were always in excess of the national minimum wage. The revised ERO has no mention of a Sunday premium.

Sec 11, Daily Rest breaks CA 24160-004

The Respondent stated that all the dates referred to a time outside of the six-month time limit.

Sunday premium CA 24160-001

I find that the contract of employment states that the rates of pay reflect the fact of working Sundays.

I find that the ERO introduced in 2017 is silent on a premium for working Sundays.

I find that the Complainant has not established an entitlement to a premium for working Sundays.

He stated that he had been having problems with his rate of pay and not getting proper breaks. He was promised changes but nothing happened, so he decided to leave. He had disagreements with his direct manager MP over breaks as he was not being replaced on sites for breaks. By 4th June 2018 he had become angry and tired he told MP that he was quitting the job. He didn’t work for about a week PB tried to contact him and to get him back to work. He met with PB and he agreed with him to accept €500 for the loss of pay on the hours that he worked. He told PB that he would not work with MP again. He met with PB again the following week and they agreed a rate of €12.50 per hour. He got €12.50 per hour for one month. He had to work with MP once again at a large festival. He again decided to leave because of loss of breaks, working again with MP. He told PB that he was leaving on 1st August 2018. PB asked him to stay. He went to Portugal from 2nd August to 1st October 2018. He worked for October to March he found work and on 11th March 2019 he found work in IT which was his chosen filed. He constantly raised his grievances with his managers about the hours of work, no breaks and not being paid the correct rate of pay. The Respondent knew that he was contemplating leaving as a result of his treatment. He was persuaded to return to work, but nothing changed so he had to leave because of the way that he was treated by MP, not getting paid correctly and not getting breaks. There were no formal procedures in the company. He felt that the employer had no respect for him, treated him with contempt and they had no desire to resolve his grievances. He was constructively dismissed and he has sought compensation.

They stated that there is a trail of emails that show that any query that he raised were addressed, including the issues that he had with MP. They stated that as far as possible they made sure that the two did not work together. They cited an email that the Complainant sent on 22nd July 2018 which stated as follows: -“I’d like to ask if is it possible to work until 4th August. I got my permission to work in Portugal last week so I’m moving to Portugal in 3 weeks that is why I didn’t renew my visa here. Let me know if it is possible because I was booked to work in XXX”. This clearly shows that he decided not to renew his visa in Ireland and to go to live in Portugal. Management spoke to him about his differences with MP and the Complainant was asked if he wanted to raise a grievance, but he declined. All he asked was not to work with MP again. After the 5th June he requested as many hours of work as possible. The records show that his hours of work increased in July. His resignation was because he wanted to relocate to Portugal and he wanted to work again in IT. His contract of employment clearly references a grievance procedure. He failed to raise a grievance under the procedure. Therefore, he did not exhaust the internal procedures before taking a step to resign from the company. The burden of proof rests with the Complainant. They cited case law in support of their position. This claim is rejected.

Definition of Constructive Dismissal

Sec 1(b) “the termination by the employee of his/her contract of employment with his/her 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”.

I find that in a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition, there must have to be something wrong with the employer’s conduct.

In Dr Mary Redmond in “Dismissal Law in Ireland P340 it states, “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 to an employee should invoke the employer’s grievance procedure 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 Ltd In Conway the EAT considered that the claimant did not act reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaint.”

In UD 1146/2011 the EAT held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

In Murray v Rockavill Shellfish Ltd [2002] 23 ELR 331 the EAT stated, “It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.

In the EAT case UD142/1987 Beatty v Bayside Supermarkets “The Tribunal considers that it is reasonable to expect that procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster bank Ltd 474/1981. In this case the Tribunal considers that procedure was not followed by the Claimant and that it was unreasonable for him not to do so. Accordingly, we consider that applying the test of reasonableness to the Claimant’s resignation he was not constructively dismissed”.

So, from the above it is clear that the Complainant must establish that the conduct/behaviour of the Respondent was such that he had no option but to resign his position.

I find that he did raise issues regarding breaks and rates of pay.

I find that the Respondent met with him and endeavoured to address his concerns.

I find that the Complainant has not shown evidence of having utilised and exhausted the internal procedures which is a clear requirement in such cases.

I find that the Complainant has not established an entitlement to claim constructive dismissal and he has not established that he acted reasonably in resigning his position based on his actions and interactions with his employer.

I find in particular the email of 22nd July referenced above clearly shows that the Complainant had decided not to renew his visa to work in Ireland, had decided to leave Ireland and to go to work in Portugal and had succeeded in getting a visa to work there.

Therefore, his reasons for resigning his position was not about the conduct or behaviour of the Respondent, rather it was his desire to work in Portugal.

I find that the Complainant has not established a case of constructive dismissal.

Owed wages, not getting breaks and constructive dismissal