ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013995
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00018212-001 | 28/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00018212-002 | 28/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00018212-003 | 28/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00018212-004 | 28/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00018212-005 | 28/03/2018 |
Date of Adjudication Hearing: 29/06/2018
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced working as a Postal Delivery Operative on 22nd September 2016 and resigned on 3rd of January 2018. |
Summary of Complainant’s Case:
CA-00018212-001 The Complainant was advised of certain financial terms applying to his role which were not complied with by the company. His representative has sought records in order to clarify the Complainant’s financial loss which have not been furnished. He is owed unpaid travel time hours estimated at 23 hours, 25 hours unpaid, and 27 hours in respect of his last payslip also unpaid. He claims for 75 hours of pay at 810 euro at the rate of 10.80 per hour due after 1 year’s service.
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Summary of Respondent’s Case:
The Respondent was notified of the hearing but there was no appearance. |
Findings and Conclusions:
Pursuant to S6 of the Payment of Wages Act 1991 as amended and S41 of the Workplace Relations Act 2015, I have considered the evidence of the Complainant in relation to his unpaid wages. The complaint was lodged on 28th March 2018 and the Complainant seeks payment of his financial loss for a period of 6 months. He seeks payment for hours travel hours unpaid on 4th August 2017 which fall outside the statutory 6 month period, so no award can be made in this respect. I find the remainder of his complaint is well founded and direct payment of 19 hours of travel time and 52 hours unpaid wages at 10.80 euro per hour total 766.80, together with 2 weeks unpaid wages of 864 euro compensation for the breach by the Respondent. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find the complaint is well founded and direct payment of 19 hours of travel time and 52 hours unpaid wages at 10.80 euro per hour total 766.80 euro gross, together with 2 weeks unpaid wages of 864 euro compensation for the breach by the Respondent. |
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced working as a Postal Delivery Operative on 22nd September 2016 and resigned on 3rd of January 2018. |
Summary of Complainant’s Case:
CA-00018212-002 The Complainant was advised of certain financial terms applying to his role which were not complied with by the company. His representative has sought records in order to clarify the Complainant’s financial loss which have not been furnished. He is owed around 44 hours unpaid annual leave which is 475.20 at the rate of 10.80 euro. |
Summary of Respondent’s Case:
The Respondent was notified of the hearing but there was no appearance. |
Findings and Conclusions:
Pursuant to S27 of the Organisation of Working Time Act 1997, I have considered the evidence of the Complainant in relation to his unpaid annual leave of 44 hours calculated at 8% of hours worked. I find the complaint is well-founded and direct payment of 44 hours of annual leave of 475.20 euro gross at an hourly rate of 10.80 euro by the Respondent to the Complainant. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find the complaint is well-founded and direct payment of 44 hours of annual leave of 475.20 euro gross at an hourly rate of 10.80 euro by the Respondent to the Complainant. |
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced working as a Postal Delivery Operative on 22nd September 2016 and resigned on 3rd of January 2018. |
Summary of Complainant’s Case:
CA-00018212-003 The Complainant was advised of certain financial terms applying to his role which were not complied with by the company. His representative has sought records in order to clarify the Complainant’s financial loss which have not been furnished. He is owed for one day’s public holiday on 30th October 2017. He was on certified sick-leave at the time but had worked for more than 40 hours in the previous 5 weeks. The claim is for 7.5 hours at a rate of 10.80 which is 81 euro gross. |
Summary of Respondent’s Case:
The Respondent was notified of the hearing but there was no appearance. |
Findings and Conclusions:
Pursuant to S27 of the Organisation of Working Time Act 1997, I have considered the evidence of the Complainant in relation to one unpaid public holiday on 30th October 2017. I find the complaint is well-founded and direct payment of 81 euro gross in respect of 1 public holiday paid at an hourly rate of 10.80 euro by the Respondent to the Complainant. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find the complaint is well-founded and direct payment of 81 euro gross in respect of 1 public holiday paid at an hourly rate of 10.80 euro by the Respondent to the Complainant |
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced working as a Postal Delivery Operative on 22nd September 2016 and resigned on 3rd of January 2018. |
Summary of Complainant’s Case:
CA-00018212-004 The Complainant was advised of certain financial terms applying to his role which were not complied with by the company. His representative has sought records in order to clarify the Complainant’s financial loss which have not been furnished. He complains that he did not receive the National Minimum Rate of Pay. The Complainant withdraws his complaint. |
Summary of Respondent’s Case:
The Respondent was notified of the hearing but there was no appearance. |
Findings and Conclusions:
The complaint is withdrawn. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is withdrawn. |
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts 1977-2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced working as a Postal Delivery Operative on 22nd September 2016 and resigned on 3rd of January 2018. |
Summary of Complainant’s Case:
CA-00018212-005 The Complainant took up a role which was advertised as a “walking role”. The role then changed to a driving role as he was given addressed letters. He was driving on average 50km per day. He was not reimbursed for his travel expenses. Then his travel time was not paid on a number of occasions from August 2017 onwards. He was not given a wage increase due, and in October 2017 he was not paid all wages due. When he was paid in November he realised he was not paid all he was due. He tried to resolve these sending emails and telephoning the office, sent emails to payroll, Hr and the Operations Manager. He found he was being paid less than minimum wage as he was not receiving payment for his petrol. He could no longer continue to work in the role and all of his efforts to resolve the issue with the company were never addressed. On 3rd January 2018 he sent a request for his P45 as he said he could not work for a company who was cheating him. He received a contract of employment but there was no grievance procedure. He did not receive a copy of the Employee Handbook. He has been looking for work for the past few months without success and is seeking 2 years financial loss. |
Summary of Respondent’s Case:
The Respondent was notified of the hearing but there was no appearance. |
Findings and Conclusions:
The Complainant’s claims unfair dismissal under S 6 of the Unfair Dismissals Act 1977-2015 and that he has been constructively dismissed under Section 1 of the Act. The Act defines “dismissal” in relation to an employee as: “ 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”.
In a claim of constructive dismissal, the burden of proof is on the employee to prove on the balance of probabilities that firstly the employer has breached his contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.
The Complainant in this case has provided documentary evidence of breach of the terms and conditions of his contract in that the Respondent failed to discharge travel expenses and travel pay, in addition to failure to discharge wages, annual leave and public holidays. He is a non-national and is not familiar with his legal rights and the applicable processes and was left in a very precarious and difficult situation.
He made repeated attempts to resolve his complaints with payroll, HR and the Operations Manager without success over a period of 6 months prior to his resignation. The Respondent failed to comply with his contractual term and to act reasonably in addressing the issues in compliance with the Code of Practice S.I.146/2000- Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 under S42 of the Industrial Relations Act 1990. The breach of contract 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 “ Western Excavating (ECC ) Ltd -v- Sharp [1978] IRLR 27. I find the Complainant was justified in resigning his role under the Unfair Dismissals Acts 1977-2015 given the actions of the employer. Compensation is the appropriate redress. It is just and equitable that the Complainant be paid his financial loss to the date of hearing of 11,232 euro gross together with 6 months future financial loss of 11,232 euro gross, total 22,464 euro gross given his difficulty in finding alternative work. |
Decision:
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.
I find the Complainant was justified in resigning his role under the Unfair Dismissals Acts 1977-2015 given the actions of the employer. Compensation is the appropriate redress. It is just and equitable that the Complainant be paid his financial loss to the date of hearing of 11,232 euro gross together with 6 months future financial loss of 11,232 euro gross, total 22,464 euro gross given his difficulty in finding alternative work. |
Dated: 04/02/19
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
Resignation justified, breach of contract to root of the contract, compensation and future financial loss |