Complainant

Respondent

Anonymised Parties

Support Agent

Broadband Provider

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00025255-001

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00025257-001

24/01/2019

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

CA-00025255-002

24/01/2019

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

CA-00025255-003

24/01/2019

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

CA-00025255-004

24/01/2019

The Complainant commenced his employment with the Respondent on 8th October 2018. He resigned his position of 3rd January 2019. He claims that he had to leave his job due to the conduct of the Respondent.

The Complainant submitted two identical complaints under CA-00025255-001 and CA-00025257-001. CA-00025257 is an exact duplicate and thus has been closed and amalgamated into this complaint.

At the outset of the adjudication hearing, it became apparent that there was no appearance by or on behalf of the Respondent. I verified that a letter notifying the Respondent of the time, date and venue of the adjudication hearing was issued on 2nd April 2019. The Respondent was informed by way of a letter dated 28th January 2019 that under Section 36(1) of the Industrial Relations Act 1990, any party has the right to object to an investigation of this dispute by an Adjudication Officer. The Respondent did not do so. The Respondent did not engage with the WRC at any stage prior to the hearing, it did not apply for a postponement and did not indicate any difficulties attending the hearing. I waited some time to accommodate a late arrival. Having taken these steps, I proceeded with the adjudication hearing in the absence of the Respondent.

The Complainant has not included specific complaints in respect of unpaid wages under the Payment of Wages Act, 1991, and unpaid annual leave and Sunday premium entitlements under the Organisation of Working Time Act, 1997. He has addressed these matters in the statement relating to the claim under the Industrial Relations Act, 1969.

In considering the introduction of a new claim I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370. In that case McGovern J. held that while it was permissible to amend a claim set out in form EE.1 this was only permissible where ‘the general nature of the complaint (in this case discrimination on grounds of sexual orientation) remains the same.’ I note that McGovern, J. also stated in this decision that this can only be done so long as the general nature of the complaint remains the same. He went on to say that "what is in issue here is the furnishing of further and better particulars" and "the respondent...must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.".

The WRC Complaint Form is not a statutory form. In the present case, I am satisfied that it was perfectly clear from the information included in the Complaint Form which the Complainant submitted to the WRC on 24th January 2019 that the Complainant’s claims relate also to annual leave, Sunday premium entitlements, and unpaid wages. I am satisfied that this matter was brought to the Respondent’s attention at an early juncture in these proceedings and as a result the Respondent’s defence of the claims has not been prejudiced as it was fully aware of the general nature of the claims well in advance of the oral hearing. I am satisfied, given all of the circumstances of the present case, that the introduction of the new claims does not fundamentally alter the nature of the claim before the hearing. Therefore, I am satisfied that I do have jurisdiction to permit the introduction of the new claims.

The Complainant submits that he had to leave his employment due to the conduct of his employer. He is seeking compensation in that regard. The Complainant submits that he started working for the Respondent on 8th October 2018. He had some difficulties with obtaining his P45 from his previous employer. He eventually managed to obtain same on 24th October 2018. However, as a result of the delay he was put on emergency tax and higher tax was deducted from his salary in October 2018 payroll.

The Complainant submits that he waited for the next payroll believing that the matter would be resolved. However, in November 2018 again emergency tax was deduced.

The Complainant submits that the information included with the payslips provided two email addresses to contact if there are any queries. He claims that on 29th November he sent a query to both these addresses but received no reply.

The Complainant claims that he attempted to raise the matter with a team leader. As his own team leader was on annual leave he was advised to wait until he returns. He claims that on 19th December 2018 he contacted his team leader and provided him with a copy of his tax certificate. However, the team leader refused to accept it quoting GDPR reasons and told the Complainant that he needs “to raise the issue higher”.

The Complainant submits that on 19th December 2018 he received his December payslip which showed that he remains on emergency tax. On 20th December 2018 he spoke with his team leader again and advised him that if the matter is not sorted out he will refuse to work. He was told that if he does not turn up for work he will be dismissed.

On 21st December 2018 the Complainant rang the Respondent to advise that he will not come to work. At 5pm on that day the team leader contacted him. He advised that he contacted the payroll department and was told that the issue was on the Revenue side. The Complainant decided to give the Respondent the benefit of the doubt and decided to come back to work on 24th December 2018. However, he started getting sick on 22nd December 2018. He rang the Respondent on 24th December and advised that he was sick. He visited the doctor on 28th December and obtained a sick note for the period from 28th December 2018 to 2nd January 2019. On 28th December 2018 he went also to the Revenue Commissioners office and was provided with two phone numbers to pass on to the Respondent to contact them with a view to resolving the matter.

On 2nd January 2019 the Complainant went to the Department of Employment Affairs and Social Protection to “sign on” as he believed he was going to be dismissed.

On 3rd January 2019 the Complainant sent his resignation letter to the Respondent. He argued that due to health reasons and because of the financial issues he could not wait any longer.

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

This is a claim lodged as an unfair dismissal claim under the Industrial Relations Act 1969, as the Complainant did not have the duration of service or special circumstances to justify a claim under the Unfair Dismissals Acts 1977-2015.

The Complainant submits that he had to resign from his employment due to the conduct of the Respondent.

I note that the Complainant’s contract of employment outlines the grievance procedure in place. It states as follows:

“If the Employee has any grievance in relation to his/her employment, he/she should raise it with Reporting Manager first in writing. If the matter is not resolved, Employee should take raise the matter in writing with the concerned HR Manager who will arrange for a formal review with responsible officials of the Company.”

I also note that on the Complainant raised the matter of his tax affairs with his team leader who advised him to raise the issue “higher”.

The Complainant did have opportunities open to him to adequately and sufficiently raise the issues through the Respondent’s procedures but he did not do so and did not properly invoke the procedure which was in place.

Having examined the facts as presented, I find, on balance, that the Complainant did not exhaust the internal procedures available to him to process his complaints before taking the step to resign, thereby not providing the Respondent with an opportunity to address his grievance in a proper manner.

I am therefore, satisfied that the Complainant was not constructively dismissed.

I do not recommend in favour of the Complainant.

The Complainant submits that he is making a complaint in respect of unpaid wages.

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

In relation to the Complainant’s claim that he was owed wages, the Complainant did not provide any details in respect of the alleged underpayments to allow me to investigate the matter. Rather, he claimed that his payslips were not clear.

I declare this complaint to be not well-founded.

The Complainant submits that he did not receive a Sunday premium under the Act.

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

In respect of the Sunday premium element of his claim, the Complainant submitted that during his employment he worked on Sunday on two occasions, on 25th November 2018 and 9th December 2018 and he was not compensated.

Section 14 of the Organsiation of Working Time Act, 1997 stipulates as follows: “Sunday work: supplemental provisions

(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.”

I note that the requirement to work on Sunday is provided for in the Complainant’s written contract of employment. The Complainant was contracted to work a seven-day roster and his contract states his work schedule as “08:00 hrs to 00:00 Monday to Sunday”.

The Labour Court in the determination DWT192 Urbanity Ltd T/A Urbanity Coffee v Zuzana Milcochova held that

“The Complainant was regularly required to work on Sundays. This was agreed by the Parties at the outset of the Complainant’s employment and is provided for in her written contract of employment. The Court accepts the Respondent’s submission that the Complainant’s hourly rate of pay at all times exceeded the prevailing national minimum wage rate and that fact – having regard to the express provisions of the Complainant’s written contract quoted above – has to be taken to mean that the Complainant’s hourly rate of pay included an element of compensation for the requirement that she work on Sundays.”

In line with the above determination, I find that the Complainant’s hourly rate of pay exceeded the prevailing national minimum wage rate and his written contract, as quoted above provided for work on Sunday. Therefore, the Complainant’s hourly rate of pay included an element of compensation for the requirement that he work on Sundays.

I declare this complaint to be not well-founded.

The Complainant submits that he is making a complaint in respect of unpaid annual leave entitlement.

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

In relation to the Complainant’s claim that there was unpaid annual leave owed to him, the Complainant did not provide any details in respect of the alleged underpayments to allow me to investigate the matter. Rather, he claimed that his payslips were not clear. I find that the final payslip issued to the Complainant shows “Leave Encashme” heading which the Complainant conceded could be accrued annual leave.

I declare this complaint to be not well-founded.

Annual leave-unpaid wages-Sunday premium-constructive dismissal