Complainant

Respondent

Anonymised Parties

A General Operative

A Powder Coating Company

Representatives

Dermot Duignan

HRS Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020798-001

26/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00020812-001

26/07/2018

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

CA-00020812-002

26/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00020813-001

26/07/2018

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

CA-00020813-002

26/07/2018

The complainant was employed by the respondent as a General Operative from 22nd August 2016 until 16th July 2018. The complaint relates to alleged Constructive Unfair Dismissal and alleged breaches of the National Minimum Wage Act, 2000 and the Payment of Wages Act, 1991.

The complaint was lodged to the Workplace Relations Commission on 26th July 2018. The cognisable period of the complaint is therefore the 27th January 2018 to 26th July 2018.

The complainant stated that there were several incidences of bullying and threatening behaviour towards him while he was employed by the respondent. The complainant outlined that he did not receive the appropriate safety training or relevant personal protection equipment during the employment. The complainant also contends that his hours of work were reduced due to a supposed shortage of work yet a new employee had been employed at the same time. The complainant also asserts that he was placed on a Performance Improvement Plan (PIP) as a result of a number of conversations/meetings which he claims never took place.

The complainant outlined in correspondence to the respondent dated 18th June 2018 that he wished for the “bullying, intimidation, harassment and aggressiveness to stop and for the working relationship to continue for the good of the Company. The complainant stated that matters did not improve after he submitted his correspondence of 18th June and he continued to be treated inappropriately by the respondent which greatly affected his confidence and general wellbeing.

The complainant stated that he suffered a hand injury on 5th July 2018 which resulted in a period of sick leave and he subsequently resigned with effect from 16th July 2018 due to the respondent’s poor attitude and treatment of him during his employment.

The complainant stated that he never received a contract of employment nor any procedures/ staff handbook until after his resignation in July 2018.

The complainant is seeking compensation in relation to his complaint.

Preliminary Issue.

The respondent’s representative raised a preliminary point that the complainant’s resignation was not accepted by the respondent in July 2018 and that a P45 was not issued until after receipt of the complainant’s resignation dated 24th September 2018. Accordingly, the respondent stated that the complaint submitted to the Workplace Relations Commission (WRC) in July 2018 was in advance of his actual resignation and is therefore a premature claim. The respondent is seeking that the complaint be dismissed as frivolous.

Substantive complaint

The respondent stated that towards the end of 2017 there was a deterioration in the complainant’s work performance and that he displayed a disrespectful attitude towards his employers. The respondent stated that the complainant was placed on a PIP in March 2018 and was given every possible support in improving his performance and attitude at work.

The respondent stated that on 15th June 2018, having been approached in relation to work he was carrying out, the complainant told his employer to “Go F**k Yourself” and left the premises for the weekend. The respondent contends that a meeting was arranged for 22nd June 2018 to discuss the events of 15th June 2018, the complainants letter of 18th June 2018 and the expectations of the parties going forward.

The respondent stated that following the hand injury on 5th July 2018, the complainant submitted a number of Medical Certificates covering his absence until 13th July 2018. The respondent confirmed that an email confirming the complainant’s resignation was submitted by his representative on 16th July 2018. The respondent submits that the complainant should not have resigned until the respondent had the opportunity to resolve the complainant’s grievances in line with its policies and procedures.

The respondent cited the cases of Berber v Dunnes Stores Ltd -2006 IEHC 327, Kaydee Cosmetics Ltd v Elizabeth Blake UD/18/40 and Ruffley v Board of Management of St Annes School [2017] IESC 33 in support of its position.

Preliminary Issue

The complainant did not return to work after he injured his hand on 5th July 2018. The respondent subsequently made a number of attempts to resolve the complainant’s issues after the resignation was received but would not release the complainant’s P45 until a signed letter of resignation was received. The complainant did not alter his position that he had resigned from the Company in July 2018 but wrote a letter confirming same to the respondent on 24th September 2018 in order to receive his P45.

Having considered the matter, I accept the position that the complaint was lodged to the WRC after the resignation email of 16th July. It is clear that the complainant’s intentions were to resign with effect from that date. In those circumstances I do not find that the complaint to the WRC is premature. Accordingly, I do not accede to the respondent’s request to dismiss the complaint as frivolous.

Substantive complaint

It is clear from this complaint that both sides were at fault at different times in terms of their attitude throughout the complainant’s employment. There are many incidences referred to by the complainant that could have been handled differently by the respondent. I also accept also that the respondent had legitimate concerns in relation to the attitude and performance of the complainant.

The complainant accepted what he said to his employer on 15th June 2018 but claimed that this had been the result of months of frustration and dissatisfaction at how he was being treated. The complainant also described how, as a diabetic, his blood sugar levels were low on that day and this may have been a factor in what had occurred.

The respondent for its part, did not dismiss the complainant for his actions on the 15th June 2018 which it could well have done in the circumstances. Instead, it arranged a meeting to discuss everything that had happened and to seek a way forward for all parties concerned.

Despite the complainant’s ongoing difficulties at work it appears that it was the hand injury of 5th July 2018 and the perceived lack of support from the respondent on that issue that ultimately led to the complainant’s resignation and the proceedings which were subsequently brought to the WRC and elsewhere.

I also note that while the complainant did not receive a staff handbook or the respondent’s grievance procedures until after his resignation, he too was attempting to resolve matters with the respondent after the events of 15th June 2018. Having apologised for his outburst, the complainant outlined that he continued to be treated badly towards the end of June and when he became injured on the 5th July 2018, he felt that the respondent failed in its duty of care to him by not providing the appropriate medical care following the accident. It was at this point that the complainant decided he had no option but to resign from his employment.

Mitigation of Loss

The complainant confirmed that he was not available for work for 6 weeks following his resignation. The complainant also stated that he applied for Job Seekers Benefit in September 2018 when he received his P45 and began a full time on-line course in November 2018. The complainant stated that he was focusing on the on-line course and had not applied for any positions since the course began.

The Applicable Law

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.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These 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.”

In all of the circumstances of this complaint, I find that the complainant’s experiences in the workplace left him in the frame of mind that there was no other option but to resign from his employment. He was not in receipt of grievance procedures, he had endured a number of incidents of harsh treatment, he had apologised after the incident of 15th June 2018 and had sought to resolve issues with the employer. While the complainant was not blameless, I conclude on balance, taking everything into account that the complainant acted reasonably in resigning. Accordingly, the complaint of Constructive Unfair Dismissal succeeds.

In relation to the appropriate level of compensation due to the complainant, I find that the complainant was not available for work for a number of weeks following his resignation and he then began a full-time education programme and was not available to seek new employment. In circumstances where no loss has been incurred or where a complainant has failed to mitigate their loss, the maximum compensation payable is four weeks gross pay.

Having considered the submissions of both parties, I declare the complaint of alleged Constructive Unfair Dismissal is well founded. The respondent is directed to pay the complainant compensation in the amount of €1,528.00 (four weeks gross pay).

The complainant stated that he was paid less than the National Minimum Wage on the basis of his gross weekly pay and on the number of hours he worked each week.

The respondent stated that the complainant worked 37.75 hours per week and that his gross weekly wage was compliant with the provisions of the legislation.

The Applicable Law

Section 24(2) of the National Minimum Wage Act, 2000 states as follows:

The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee ’ s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41of the Workplace Relations Act 2015

(a) unless the employee—

(i) has obtained under section 23a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

or

(b) where, in respect of the same alleged under-payment, the employer is or has been—

(i) the subject of investigation by an inspector under section 33or 34, or

(ii) prosecuted for an offence under section 35.

The complainant did not submit any evidence that he had requested a statement of his average hourly rate of pay as is required by Section 23 of the National Minimum Wage Act, 2000. Accordingly, and in compliance with the provisions of Section 24(2) of the legislation, I do not have jurisdiction to hear this complaint.

Having considered the submissions of both parties, I declare that the complaint is not well founded.

The complaint relates to unpaid overtime. The complainant stated that he worked 40 hours per week and was only paid for 39 hours per week. The complainant is seeking the outstanding overtime payments due to him.

The respondent stated that the complainant worked 39 hours per week and was paid for 39 hours.

Having calculated the hours worked each day at the adjudication hearing, it was accepted by the respondent that the complainant in fact worked 40 hours per week. The respondent also confirmed that the applicable overtime rate is time plus one half for all hours worked in excess of 39 hours per week. Accordingly, I declare that the complaint is well founded.

The cognisable period of this complaint is from 27th January 2018 to 5th July 2018. In that period (23 weeks) the complainant was entitled to one hours’ overtime per week. On the basis that in January 2018 the National Minimum Wage was €9.55 per hour, the complainant is due €9.55 X 1.5 X 23 in respect of unpaid overtime.

The complaint is well founded. The respondent is directed to pay the complainant €329.48 in respect of unpaid overtime.

Complaint Applications CA-00020813-001 and CA-00020813-002 are duplicate complaints and accordingly are not well founded. The substantive complaints have been adjudicated on under Complaint applications CA-00020812-001 and CA-00020812-002 above.

Constructive Unfair Dismissal, Payment of Wages, National Minimum Wage