Complainant

Respondent

Anonymised Parties

A Delicatessen Manager

A Delicatessen

Representatives

In person

General Manager

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-00019925-001

20/06/2018

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

CA-00019925-002

20/06/2018

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

CA-00019925-003

20/06/2018

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

CA-00019925-004

20/06/2018

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

CA-00019925-005

20/06/2018

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

CA-00019925-006

20/06/2018

The complainant was employed from 7th October 2016 to 19th April 2018. The complaints relate to breaches of the Organisation of Working Time Act, 1997 in respect of Annual Leave and Public Holiday entitlements and an alleged Unfair (Constructive) Dismissal referred in accordance with the provisions of the Unfair Dismissals Act, 1977.

The complaints were lodged to the Workplace Relations Commission (WRC) on 20th June 2018. The cognisable period of the complaint is 21st December 2017 to 20th June 2018.

CA-00019925-001 – Organisation of Working Time Act, 1997 – Annual Leave entitlements

The complainant stated that she is owed 5 days annual leave from the 2017 leave year as well as annual leave entitlements from January 2018 until her resignation in April 2018.

CA-00019925-002 – Organisation of Working Time Act, 1997 – Public Holiday Entitlements

The complainant stated that she did not receive any Public Holiday entitlement for 2017 or from 1st January 2018 until she left her employment on 19th April 2018.

CA-00019925-003– Organisation of Working Time Act, 1997 – Notification of additional hours

The complainant did not pursue this issue at the adjudication hearing.

CA-00019925-004– Organisation of Working Time Act, 1997 – Annual leave on leaving work

The complainant stated that there was an outstanding annual leave entitlement when her employment ended in April 2018. The complainant contends that she approached the respondent in relation to this issue, but the respondent refused to discharge payment to her.

CA-00019925-005– Organisation of Working Time Act, 1997 – Public Holidays on leaving work

The complainant stated there was outstanding Public Holiday entitlements due to her when her employment ended in April 2018.

CA-00019925-001 – Organisation of Working Time Act, 1997 – Annual Leave entitlements

The respondent contends that the complainant availed of all annual leave entitlements in the 2017-2018 Leave Year. The respondent stated that the respondent was on annual leave for 10 days in July 2017 and 4 days in October 2017. The respondent submits that the complainant also took the remaining six days of holidays although there were no records available and payslips did not record payments relating to periods of annual leave.

CA-00019925-002 – Organisation of Working Time Act, 1997 – Public Holiday Entitlements

The respondent contends that the complainant received all Public Holiday entitlements while in its employment. The respondent stated that the Delicatessen was not open on Public Holidays and the complainant was provided with a paid day off on each Public Holiday in line with the provisions of the legislation

CA-00019925-003 – Organisation of Working Time Act, 1997 – Notification of additional hours

As this issue was not pursued at the adjudication hearing, the respondent was not required to comment on this complaint.

CA-00019925-004 – Organisation of Working Time Act, 1997 – Annual leave on leaving work

The respondent stated that there was no outstanding annual leave due to the complainant when she resigned in April 2018.

CA-00019925-005 – Organisation of Working Time Act, 1997 – Public Holidays on leaving work

The respondent stated that there was no outstanding Public Holiday entitlement due to the complainant when she resigned in April 2018.

CA-00019925-001 – Organisation of Working Time Act, 1997 – Annual Leave entitlements

This issue has been adjudicated on under CA-00019925-004 below. Accordingly, this complaint is dismissed.

CA-00019925-002 – Organisation of Working Time Act, 1997 – Public Holiday Entitlements

Within the cognisable period of this complaint (21st December 2017 – 20th June 2018) there were five Public Holidays. It is not disputed that the complainant was not in work on 25th December 2017, 26th December 2017 and 1st January 2018 and was paid for those days. The other two Public Holidays are 17th March 2018 and 2nd April 2018. The complainant stated that she worked on these days but did not receive any additional pay. The respondent stated that the complainant did not work on the 17th March 2018 and 2nd April 2018 as the Delicatessen was not open on Public Holidays.

In relation to this issue, the respondent did not retain records and was unable to prove its contention that the complainant received Public Holiday entitlements for the remaining two days. Accordingly, I find that the complainant is entitled to two days Public Holiday entitlement in respect of 17th March 2018 and 2nd April 2018.

CA-00019925-003 – Organisation of Working Time Act, 1997 – Notification of additional hours

As this issue was not pursued at the adjudication hearing, the complaint is dismissed.

CA-00019925-004 – Organisation of Working Time Act, 1997 – Annual leave on leaving work

Section 23 of the Organisation of Working Time Act, 1997 provides as follows in relation to Holiday entitlements when the employee ceases to be employed. Section 23 states as follows:

23(1) (a) Where —

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b) In this subsection —

‘relevant period’ means —

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year —

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.

Having considered the submissions and evidence of both parties to this complaint, and in the absence of any records from the respondent, I find that the complainant availed of 10 days of annual leave in July 2017 and four days annual leave in October 2017. This was not disputed by the complainant. While the respondent stated that the complainant also took the remaining six days of annual leave, there were no available records and the respondent was unable to prove its contention in that regard. Accordingly, I conclude that the complainant had an entitlement to six days of annual leave when her employment ended in April 2018.

CA-00019925-005 – Organisation of Working Time Act, 1997 – Public Holidays on leaving work

This complaint has been adjudicated on under CA-00019925-002 above. Accordingly, this complaint is dismissed.

CA-00019925-001 – Organisation of Working Time Act, 1997 – Annual Leave entitlements

This complaint is dismissed as a decision has been made in respect of this issue under Complaint Application CA-00019925-004 below.

CA-00019925-002 – Organisation of Working Time Act, 1997 – Public Holiday Entitlements

This complaint is well founded. The respondent is directed to pay the complainant €250 in compensation in relation to the infringement of the complainant’s rights under the legislation.

CA-00019925-003 – Organisation of Working Time Act, 1997 – Notification of additional hours

As this issue was not pursued at the adjudication hearing, the complaint is dismissed.

CA-00019925-004 – Organisation of Working Time Act, 1997 – Annual leave on leaving work

This complaint is well founded. The respondent is directed to pay the complainant €750 in compensation in relation to the infringement of the complainant’s rights under the legislation.

CA-00019925-005 – Organisation of Working Time Act, 1997 – Public Holidays on leaving work

This complaint is dismissed as a decision has been made in respect of this issue under Complaint Application CA-00019925-002 above.

The complainant stated that she left her employment on the basis that she had not received the appropriate Annual Leave and Public Holiday entitlements and due to the respondent’s refusal to pay agreed travel expenses on occasions when she worked in excess of 60 hours per week. The complainant stated she had not been given a copy of the staff handbook and there were no grievance procedures that she could invoke. The complainant stated that she had no other option but to resign from her employment as a result. The complainant stated that she began working for a new employer almost immediately and was paid a higher rate of pay. The complainant also outlined that there was a better atmosphere in the new employment and there were no issues with receiving her statutory entitlements.

The respondent refutes the complaint. The respondent’s position is that the complainant received all entitlements while in its employment. The respondent stated that there were no outstanding Annual Leave or Public Holidays due to the worker when she resigned from her employment. In relation to agreed travel expenses, the respondent stated that the complainant would be paid travel expenses for working in excess of 60 hours per week but that in practice she did not work that number of hours.

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.

Two tests in relation to proving that a Constructive Dismissal has occurred 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.”

The issues that led to this complaint appear to have occurred when the respondent did not provide outstanding Annual Leave and Public Holiday entitlements to the complainant at the time of her resignation. Accordingly, I conclude that it was not the issue of Annual Leave and Public Holidays that prompted the complainant’s resignation. In relation to the non-payment of travel expenses, the payslips submitted show that, in the six months prior to her resignation, there were no occasions where the complainant worked in excess of 60 hours per week. In addition, I am not satisfied that the complainant formally raised this as an issue with the respondent prior to her resignation.

In all of the circumstances of this complaint, I do not find that an Unfair (Constructive) Dismissal occurred in respect of the complainant’s employment.

Having considered the submissions of both parties and for the reasons stated above, I find that the complaint of alleged Constructive Unfair Dismissal is not well founded.

Annual Leave entitlements, Public Holiday entitlements, Constructive Unfair Dismissal