Complainant

Respondent

Anonymised Parties

An Employee

A Civil Engineering Company

Act

Complaint Reference Nos.

Date of Receipt

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

CA-00023723-001

29/11/2018

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

CA-00023723-002

29/11/2018

The Complainant claims that his wages were reduced from €17 per hour to €15 per hour. He also claims that because of the way he was treated by the Respondent he had no choice but to leave his employment after some 41 years’ service, he said that this is a case of constructive dismissal.

The Respondent denies that there were any breaches of the Payment of Wages Act 1991 or the Unfair Dismissal Act 1977. It claims that the Complainant was paid what he was owed at all times and he chose to leave the business himself. There was no case of constructive dismissal.

The following is a summary of the Complainant’s evidence.

CA-00023723-001 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Complainant claims that his wages were reduced from €17 per hour to €15 per hour back in 2014 and were not restored to him until 2016.

CA-00023723-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Complainant said that he left the workplace due to the conduct of his employer. He said that the owner, Mr. A, had an arrogant manner and used bullyboy tactics. The Complainant said he was shown no respect after 41 years of employment with the company.

The Complainant said the company was offering new employee terms and conditions and the owners said to him “you are getting more money, more work and more responsibility”. He said that he had taken all that he could take from Mr. A and after an exchange he walked away from his employment.

The Complainant went into some detail of his history with the company. He had worked there for 41 years with Mr. A’s father who was the previous owner without any incident of note. He said that in 2008 when the Complainant first started to get involved in the business, things started to become difficult. He said that Mr. A would try to show his authority and show up the Complainant by going over and re-finishing his work and re-parking machinery after the Complainant. The Complainant said he felt undermined by Mr. A.

The Complainant gives his account that in 2010 there was a serious workplace incident when Mr. A assaulted him. The incident was reported to Mr. A’s father and he was disciplined. The Complainant said that Mr. A left the business for a number of years and travelled abroad but he returned in 2013 when he took over from his father and ever since then, the Complainant’s work life was very difficult.

The Complainant cites a number of incidents where again he claims that he was undermined and reprimanded. He mentioned that Mr. A called to his family home at 7 am one morning and left his hand on the door bell which woke his family and frightened them. He said that Mr. A would finish up early from breaks expecting everyone to follow him back to work. the Complainant said that he was regularly badly spoken to and he felt intimidated. He said the work environment was not nice to work in and he would bottle things up. The Complainant said that he just would not sign the new terms and conditions and continue to work with Mr. A. He just could not continue working there.

The Complainant said that when he gave his notice Mr. A never showed him the courtesy of making contact with him and recognising that he was leaving the company after 41 years of service. The new contracts offered included a clause that the Complainant would be expected to work 13 weeks on a trial basis.

The Complainant claims that he is owned money for the use of his private machinery which was not honoured. The Complainant said that when he left, he was lucky enough to walk into employment straight away, that he had many job offers.

The Complainant said that he did not pursue a grievance with the Respondent prior to leaving. He said before he had left, he had said that he was not happy with the contract or his employment. However, he confirmed that he did not pursue a grievance with the Respondent.

The following is a summary of the Respondent’s evidence.

CA-00023723-001 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Respondent is a civil engineering company. Mr. A took over as Managing Director and shareholder of the Respondent on 1 January 2014 and following a NERA inspection in February 2014, a change in terms and conditions of employment was suggested freely by the previous owner and accepted by all members of staff. Each member of staff at this time received a copy of their new terms and conditions of employment which was signed by the Complainant and at no point did he raise concerns about these terms and conditions of his employment.

The Respondent said that notice of one month was given in respect of the changes and was carried out under the watchful eye of NERA as part of their inspection and was approved by NERA.

The Complainant subsequently received a wage increase in May 2016. The rate of pay increase was agreed with the Complainant. It claims that it is at a loss to understand the claim against it, under the Payment of Wages Act, 1991.

CA-00023723-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Respondent said that the Complainant commenced work for the company on 3 November 1977 and finished on 26 June 2018 after giving just two weeks’ notice to his employer which is contrary to the terms and conditions of his contract.

The Respondent said that the Complainant was ‘continuously rebellious’ in relation to safety and well-being of others on site. He regularly failed to wear the appropriate Health and Safety apparel, refused to close safety barriers on site, and did not place the safety locking device in the quick hitch of the excavator. This caused much angst with the Respondent in particular Mr. A where in the summer of 2016, at a particular named site the Complainant became very abusive and disrespectful. Mr. A’s father and previous owner of the business was kept informed of certain instances by Mr. A and had a good relationship with the Complainant and would often speak with the Complainant to try to help matters. Mr. A said that he approached the Complainant and asked what the difficulty was, he said that the Complainant wanted more money.

The Respondent said that the Complainant was issued with a new terms and conditions of employment in May 2018 with increased wages in another attempt to improve his attitude and progress with work. Mr. A claims he said that these are “new terms of employment, that means more money but that comes with more responsibility”. He said that the Complainant instantly engaged in the work and expressed happiness for the remainder of the day. However, as time passed Mr. A noticed that the Complainant had failed to sign and return his new terms and conditions of employment. He approached him, and the Complainant said that he was leaving in two weeks and the work no longer suits him because he works evenings and weekends on his farm.

Mr. A said that there was no more about this until the 12 June 2018 when the he received a phone call from the Complainant about him giving notice, where he was getting angry and hostile. Mr. A asked him to calm down, which he said he did and following they had a conversation about him leaving. Mr. A said that at no point did the Complainant raise an issue regarding the supposed traumatic treatment he was suffering.

The Respondent refuted the Complainant’s claims in relation to historical incidences and alterations between the parties. These incidences go back in particular 10 years. He refutes the facts of the Serious Workplace incident in 2010 and claims that it was the Complainant who was at fault and not him. The other issue raised was part of the Respondent’s prerogative on the completion and standard of work.

Legal Arguments

The Respondent said that the burden of proof is on the Complainant to establish that he was dismissed. The Respondent denies that it dismissed that Claimant. There are two tests for constructive dismissal in the statutory definition, either or both of which may be invoked by an employee. The first is the contract test where the employee argues ‘entitlement’ to terminate the contract because of a fundamental breach of contract on the part of the employer. Secondly, the employee may allege that he satisfies the Act’s ‘reasonableness’ test, that is, that the conduct of the employer was such that it was reasonable for him to resign.

The breach of contract being alleged must either be a significant breach going to the root of the contract or one which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. Where an employee relies on the contract test, it will be essential to ascertain the precise scope of the contract. It is submitted that there is no breach of an express term of the Claimant’s contract of employment nor is there a breach of any term which might reasonably be implied into the Claimant’s contract of employment.

The Respondent referred to Western Excavating (ECC) Ltd. v Sharp [1978] ICR 221, Lord Denning stated 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 further performance.”.

The Respondent also referred to A General Operative v A Religious Society ADJ-00002814, the Adjudicator stated in respect of claims of constructive dismissal that: “In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment … In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.”

The Respondent cited the Supreme Court decision of Berber v Dunnes Stores [2009] IESC 10, Mr. Justice Finnegan concluded: “The appropriate test must be applied to that conduct. In relation to the test the following matters are to be noted: - (i) The test is objective. (ii) The test requires that the conduct of both employer and employee be considered. (iii) The conduct of the parties as a whole and the accumulative effect must be looked at. (iv) 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.”

The Respondent said the Complainant failed to raise a grievance and in Carthy v Clydale Investment UD 1091/2004 the tribunal held that the employee had not discharged the burden of proof that she had been constructively dismissed. In particular it found that her failure to utilise the company’s grievance procedures before resigning was unreasonable.

The Respondent quoted from ‘Employment Law in Ireland’ by Cox, Corbett and Ryan the authors state as follows at para 21.49: “The question of reasonableness in the context of constructive dismissal works both ways. The employee must, in all the circumstances, act reasonably in response to the employer’s behaviour. Thus, an employee’s failure to genuinely engage in a meaningful manner or to exhaust available procedures will make it very difficult for that employee to claim that [s]he has been constructively dismissed. [Walker, Walker and Keating v Sodexho Ireland Ltd. [2008] ELR 156; Donnellan v Dunnes Stores UD 827/2007]”. It also referred to Redmond on Dismissal Law (3rd. Ed.), the author states as follows: “Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing an employee, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is imperative almost always in employee resignations.”

The Respondent noted in McCormack v Dunnes Stores UD 1421/2008 where constructive dismissal places a high burden of proof on an employee to demonstrate that he or she acted reasonably. Also, in Conway v Ulster Bank Ltd. UD 474/1981 and Mooney v CPC Foods (Ireland) Ltd. UD 383/1987 and others in relation to where an employee resigned a position without first having explored all options open communicate a grievance or concerns.

Finally, in An Employee v An Employer UD 720/2006 the tribunal held: “…We however 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. There was no reason put forth as to why an appeal to [senior manager] would have been unfair or biased and we accept that his failure to avail of this right by resigning on [date] is fatal to his claim … 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 Respondent said that there is no evidence whatsoever that it either breached a significant term, express or implied, going to the root of the Complainant’s contract of employment, or that it conducted itself so unreasonably that the Complainant could be justified in leaving. On the contrary, it is submitted that the Complainant entirely failed to highlight to the Respondent the issues upon which he now appears to rely in order to justify his resignation. It said there was no fundamental breach of the Complainant’s contract of employment nor was the conduct of the Respondent, viewed objectively, such that it was reasonable for him to resign.

CA-00023723-001 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The six-month cognisable period of a complaint submitted to the Workplace Relations Commission is provided for in Section 41(6) of the Workplace Relations Act, 2015 which states as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The crux of this complaint seems to originate from when Mr. A took over as Managing Director in and around January 2014. I note that there was a change to the terms and conditions of employees at this point and in particularly in February 2014.

I note that there was a wage increase in May 2016 bringing the Complainant’s pay levels to per 2014.

I have not been presented with any other instances of deductions in pay since. Having carefully considered all the evidence adduced in relation to this element of the Complainant’s claim, I am satisfied that claim relates to pay deducted back in 2014, which is well outside of the scope of the time limits set out in Section 41(6) of the Workplace Relations Act, 2015.

CA-00023723-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Relevant Law

Section 1 of the Unfair dismissal act defines “dismissal”, in relation to an employee, means—

“(b) 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 term “constructive dismissal” is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition, Section 1(b) of the Act which provides that:

In order to rely upon the provisions of Section 1(b) the Complainant must establish, in the first instance, that there was a termination of his contract of employment. It was not in dispute that the Complainant resigned from his position from 26 June 2018.

The Complainant is claiming that he was constructively dismissed from his position with the Respondent.

As the Complainant is claiming constructive dismissal, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment.

The appropriate legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two tests, often referred to as the ‘contract test’ and the ‘reasonableness test’. 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, it said that “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.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.

The Complainant claims that he was totally undermined, was being bullied and harassed by Mr. A so much he could not continue to take anyone. He had no relationship with Mr. A and ultimately the offer of the new terms and conditions meant he felt he had to go.

The Respondent disputes the claim of constructive dismissal. It said that it was unaware of the Complainant’s grievances that the Complainant had issues with what he was being paid and new contracts were drawn up where there would be better rates of pay for new responsibilities. The Respondent said the Complainant failed to pursue any formal grievance with it.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment. The notion places a very high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve the grievance with the employers.

The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd [UD720/2006] that: “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”.

In considering this issue, I am satisfied that the Complainant said that he did not raise a formal grievance on how he was been treated by the Respondent, in particular Mr. A. I note that he bottled it up and stayed quiet. I understand and accept the Complainant’s evidence that he had a harmonious number of years with the company working under Mr. A’s father, where there was a good atmosphere. I note his evidence that he did not get on with Mr. A and felt undermined and intimidated by him and his actions.

I note the evidence from the parties and accept the Complainant’s evidence that he was unhappy there and much of that was levelled at Mr. A. However difficult it might seem on a practical level, there is an obligation on the Complainant in such circumstances to activate an internal grievance with the Respondent to see if the matter can be addressed before taking the step to resign from his employment. The evidence from both parties is that this never happened.

In the circumstances, I find that the Complainant has not established that the conduct of the Respondent was such that he had no option but to resign his position. I find that the Complainant did not give the Respondent an opportunity to address his concerns before taking the decision to resign. Accordingly, I find that the Complainant was not constructively dismissed from his employment.

CA-00023723-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991

The complaint under Section 6 of the Payment of Wages Act, 1991 is not well founded.

CA-00023723-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The complaint under Section 8 of the Unfair Dismissals Act, 1977 is not well founded.

Unfair Dismissals Act - Payment of Wages Act - not well founded – no internal grievance