Act

Complaint Reference No.

Date of Receipt

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

CA-00020069-001

28/06/2018

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

CA-00020069-002

28/06/2018

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

CA-00020069-003

28/06/2018

The Complainant started his employment with the Respondent on 4th July 2017 as a Financial Controller. His employment was terminated on 28th May 2018.   The Complainant was paid €1,270 gross a week and worked approximately 50 hours a week.

The first hearing was scheduled on 4th October 2018. The Complainant attended the hearing with his solicitor. There was no appearance by or on behalf of the Respondent. At the hearing it became apparent that the address of the Respondent, as submitted by the Complainant was incorrect. I was therefore, not satisfied that the Respondent was on notice of the hearing. Another hearing was scheduled on the 29th January 2019. Both parties were in attendance.  

The Complainant submits that he is owed his salary for April 2018 and for the period from 1st May 2018 to 19th May 2018 totalling €9,350.56 gross. In addition, the Complainant claims that he is owed 7.92 days annual leave equating to €2,178.31.

The Respondent concedes that the Complainant is due €9,350.56 gross in outstanding salary and €2,178.32 in respect of annual leave.

Based on the evidence adduced, I find that the Complainant is due €9,350.56 gross in respect of outstanding salary and €2,178.32 gross in respect of annual leave.

I declare this complaint well founded. I require the Respondent to pay the Complainant €9,350.56 in respect of outstanding salary and €2,178.32 in respect of annual leave.

The Complainant submits that he did not receive a statement in writing of his terms of employment.

The Respondent concedes that the Complainant was not issued with a copy of his terms and conditions of employment during his employment with the Respondent.

This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3 of the Act.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides:

“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 …”

Based on the totality of the evidence adduced, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

I direct the Respondent to pay to the Complainant compensation in the amount of €2,500.

The Complainant submits that he worked for the Respondent as a Financial Controller commencing in or around 4th July 2016. The Complainant submits that he had to assume the role of Contracts Manager in or around September 2017. The Complainant claims that he expressed his concern to Mr F, the Managing Director (MD) of the Respondent in relation to acting outside his area of expertise and that he found that the extension of his role into the area which he had no experience and training led to adverse effect on his health, welfare and family life.

The Complainant stated that when he made his concerns known to the MD he immediately dismissed same and in or around 10th April 2018 the MD attempted to misconstrue the Complainant’s concerns as his resignation, advising the Complainant that he was an exceptional accountant but that property development was not for him. The Complainant submits that he was greatly taken aback and advised the MD that he was not resigning but he wanted the terms and conditions which he agreed on commencement of his employment respected in full. The Complainant argues that at this stage the Respondent had removed access to banking facilities from the Complainant and without such access, the Complainant was effectively unable to carry out his role. The Complainant felt that it was a deliberate effort to side-line him in order to persuade him to resign his position.

The Complainant submits that he sought legal advice and his solicitor wrote to the Respondent on 3rd May 2018. A follow up letter was sent on 14th May 2018. The Complainant submits that the Respondent replied on 21st May 2018 ignoring the content of his previous correspondence and only sought the return of the company property. The Complainant’s solicitor replied on 23rd May 2018 requesting, inter alia, response to previous correspondence. A further email was sent to the Respondent on 28th May 2018 advising that the Complainant viewed the failure to deal with his grievances and to discharge outstanding wages as termination of his employment and requested his P45. The Complainant submits that the Respondent indicated in its email on the same day that its solicitor was “engaged” in the matter. Further enquiries were made on behalf of the Complainant on 5th June 2018. The MD advised that he was meeting his solicitor on the next day and he would ensure contact was made.

The Complainant submits that to date no contact was made from the Respondent or its representatives.

The Complainant submits that an employee may claim unfair dismissal where they have resigned because they could no longer endure their treatment at work.

The Complainant submits that he was entitled to resign for the following reasons:

1.       The Respondent had refused to discharge his pay.

2.       The Respondent refused to deal with the Complainant’s grievance as to his roles and duties.

3.       The Complainant had no alternative but to resign in circumstances where he had made his concerns known to the Respondent who, in turn, sought to imply that the Complainant was resigning his position.

4.       There was no grievance policy for the Complainant to utilise.

5.       There was no appointed person to deal with the Complainant’s grievance other than the MD who proved unsympathetic and was the subject matter of the grievance.

6.       The Complainant’s role as a Financial Controller was effectively removed from him by the failure to allow him access to the banking facilities which were central to his role.

7.       Effectively, the Complainant was used as a buffer between the MD and subcontractors and this caused the Complainant much stress and anxiety as there were constant demands made which he was unqualified to deal with without the requisite support and training.

8.       The Respondent attempted to give the impression that the matter was to be dealt with by his appointed solicitor but no contact has been made since 5th June 2018 which clearly underlines the dismissive attitude adopted by the Respondent.

The Complainant submits that the absence of an investigation into his grievance, the failure to provide the necessary financial information to allow him to carry out his role, together with the failure to discharge his pay, meant that the Complainant was effectively denied his contractual rights and that trust and confidence had been broken thus severing the employment relationship.

The Complainant submits that looking at the totality of his experience prior and since raising his grievance and the failure to have his complaints dealt with in a fair and reasonable manner it can be only concluded that he had no option but to resign his position.

The Complainant submits that it is settled law that every contract of employment contains implied terms that the parties will maintain of mutual trust and confidence in their relations and it is clear that the Respondent has conducted itself in a manner that was destructive of such a relationship of trust and confidence.

In support, the Complainant cited O’Kane v Dunnes Stores Limited [2005] ELR 205, S v A Named Organisation E2006 – 025.

The Respondent submits that during 2017 and beginning of 2018 there was a change in the Respondent’s strategy e.g. some of the properties owned and managed by the Respondent were disposed of, some projects were put on hold, certain large property acquisitions did not complete. The Respondent submits that to reflect the change in strategy, changes were made to the size of the administrative team. A Director of the Respondent submits that the Complainant decided that there was no longer a role for his wife, Ms A and she left the business. Subsequently, on 30th March 2018, Ms B left the business. The Respondent submits that these changes ensured that the business was the right size for the current operations and was viable.

The Respondent submits that the Complainant told the owner of the company Mr F (the MD) that he would only stay if Ms B was replaced. The MD explained that the business could not afford to employ another person due to the reduced workload and change in strategy. The Complainant decided to leave the business. The Respondent submits that on 17th April 2018 the Complainant wrote an email which included that he intended to cease his employment with the business. Shortly after this decision the Complainant went on sick leave. The Respondent submits that the Complainant never returned to the business and therefore, this is a case of an employee willing to chose to end his employment rather than redundancy, which was farcical.

In respect of the removal of banking facilities, the Respondent argues that the Complainant was out sick and wages etc. had to be paid. The Respondent needed to have access to the facilities and for that reason passwords had to be changed.

The Complainant submits in his WRC Complaint Form that he was unfairly dismissed and “in the alternative” he was claiming constructive dismissal. In his written submission and at the hearing the Complainant claimed that he resigned from his position due to the conduct of the Respondent.

Section 8 of the Unfair Dismissals Act, 1977, as amended provides for making complaints regarding unfair dismissal in contravention of Section 6 of that Act. For a claim of constructive dismissal to be properly brought under the Act, the Complainant must satisfy the definition in Section 1(1)(b) of the Act, which defines “constructive dismissal” 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 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 in constructive dismissal lies with the Complainant. In Allen v Independent Newspapers (Ireland) Ltd. 2002 ELR 84 it was held that the onus is on the Complainant to prove his case and the test for the Complainant is whether it was reasonable for him to terminate his contract.

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ 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.”   The reasonableness test assesses the conduct of the employer and whether it “…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.”

According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.” Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

The Complainant must have acted reasonably in tendering his resignation. Dr D. Ryan in the book “Redmond on Dismissal Law” argues that “There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative in employee’s resignation. Where grievance procedures exist, they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints”.[1]

The Complainant was employed as a Financial Controller. The parties confirmed that the Complainant had originally worked with support of two staff. He subsequently assumed additional duties of the Contracts Manager who left in September 2017 and, following the two staff members departures on 23rd and 30th March 2018, also their duties. The Complainant requested that at least one of the employees be replaced. The Respondent argued that the Complainant was informed that the business could not afford to employ another person due to the change in strategy and reduced workload. The Complainant was out sick due to a farming accident for two days in early April and then for 3 days around 9-11 April 2018. The Complainant argued that he returned to work thereafter. The parties confirmed that the Complainant brought his concerns to the attention of the MD during a telephone conversation in or around 10th April 2018. The parties engaged in quite detailed exchange of views as to whether during this conversation the Complainant indicated his intention to leave the Respondent. The Respondent could not recall if the Complainant returned to work after this telephone conversation and whether he was at work between 13th and 30th April 2018. I note that the Respondent in its own evidence exhibited an email dated 17th April 2018 from the Complainant to the MD dealing with work-related matters. I therefore, on balance, find that the Complainant did return to work after the period of sick leave. The access to the banking facilities was not given back to him at this stage.

There was no dispute that the Complainant commenced his sick leave due to work related stress on 30th April 2018 and remained on sick leave until 28th May 2018 when he requested his P45.

It was also not in dispute that there was no Grievance Policy in place and that the Complainant’s solicitor wrote to the Respondent on 3rd May 2018 outlining his grievance in respect of, inter alia, the Complainant’s role and duties, removal of access to banking facilities, lack of support, the failure to pay his wages in a timely manner, the repeated efforts to undermine the Complainant, the failure of the Respondent to respect the Complainant’s “down time” and family life and to respect his entitlement to dignity at work. As no response was received, the Complainant’s solicitor again wrote to the Respondent on 14th May 2018. The Respondent replied by email dated 21st May 2018 requesting the Complainant to return all files, documents, keys. The Complainant’s solicitor wrote again to the Respondent on 23rd May 2018 and on 28th May requested his P45.

Having carefully considered the evidence before me, I find that the Complainant had some serious concerns in relation to his employment and raised these with the Managing Director of the Respondent first during their telephone conversation and then in writing through his solicitor. The Respondent did not take any meaningful action to address these concerns. The Respondent conceded that the Complainant was not paid his salary for April and May and by the time he requested his P45 he was owed €9,350.56 gross in that regard.

Having regard to the circumstances, I find that the Respondent’s conduct was unreasonable. In all the circumstances, I am of the view that that the Complainant did not act unreasonably in terminating his own employment. The Respondent was fully aware of the situation in which it had placed the Complainant and made little or no effort to assist him. I therefore find that the Complainant has made out his case of constructive unfair dismissal.

Mitigation of loss

The Complainant submitted that he was in receipt of job seeker’s payment from the Department of Employment Affairs and Social Protection from 28th May 2018. The Complainant was out of work for some 25 weeks and secured a part-time employment from 19th November 2018. He is paid €508 gross less per week. He is anticipating to start working an additional day per week in 2-3 weeks. The Complainant confirmed that since 19th November he did not seek alternative full-time employment.

Having regard to the evidence tendered in relation to the Complainant’s losses arising from his constructive dismissal and his efforts to mitigate those losses, I determine that the appropriate redress is compensation of €30,000.

Constructive dismissal- terms of employment- outstanding salary- annual leave