ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00023300

Parties:

Complaint(s):

Date of Adjudication Hearing: 05/12/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaints to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complaint from a Ukrainian National employed as a Metal Fixer with the Respondent refers to an allegation of Unfair Dismissal and failure by the Respondent to pay the Complainant redundancy.

The Respondent did not attend the hearing.

Summary of Complainant’s Case:

CA-00029808-003 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977  

The Complainant was employed as a Metal Fixer and commenced his employment on 1st January 2017. He submitted that in January 2019 he was not paid for two weeks work, and from 5th May 2019 onwards he was not paid for his work until 31st May 2019 when he left his employment.

The Complainant maintained he approached the Respondent seeking payment and he was told by the Respondent that the company did not have the money to pay him as it had bank account problems. As a consequence, the Complainant asked for redundancy and he was again told the company did not have the money to pay him so he could leave.

The Complainant submitted as he was not being paid, he decided to leave his employment, and he successfully commenced employment after he left.

The Complainant maintained that because he was not paid for six weeks, or offered redundancy, he had no option but the leave work and as such he maintained that he was unfairly dismissed. The Complainant further submitted that the Respondent did not provide him with written notification of his conditions of employment, nor was he ever provided with information on grievance procedures.

The Complainant acknowledged that he did not raise any formal grievance or progress his complaint through any formal internal procedures, but he left due to the verbal response from his employer and for the non-payment of his wages. The Complainant submitted that he was never provided with a written contract or informed of anf grievance procedures.

As a foreign national with little English and no knowledge of his employment rights the Complainant felt he had no option but to leave. The Complainant submitted pay slips and bank statements to demonstrate when he was paid and when he worked without being paid.

CA-00029808-004 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967    

The Complainant submitted that he left his employment because he had not been paid.

Summary of Respondent’s Case:

The Respondent did not attend the hearing. I am satisfied the Respondent was properly notified of the hearing date and location of the hearing through its nominated representative.

Findings and Conclusions:

CA-00029808-003 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.

The breach of a contract of employment is a very serious matter and which in cases of unfair dismissal, requires an examination of whether an employer acted fairly. This test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination. In cases where an employee breaks the contract and then seeks to pursue the employer for constructive unfair dismissal, as in this case, the bar is set just as high. Likewise, the burden of proof, which now passes to the employee, is set at a high level.

In cases of unfair dismissal, the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer 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 this regard the Supreme Court has 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.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61).

In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

With reference to Flynn v TUSLA The Child and Family Agency (UDD 1810) it was stated that in normal circumstances a Complainant who seeks to involve the reasonable test in a constructive dismissal 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 the grievance through the procedures laid down in the contract of employment before taking the step to resign (Conway v Ulster Bank Ltd). An employer cannot be expected to address an employees’ grievance in circumstances where the employee failed to notify it of their issues.

Furthermore, the Complainant must succeed in arguing that he is entitled to terminate the contract on the grounds that the Respondent has breached a fundamental condition that goes to the root of the contract. In general, this arises where the actions of the Respondent demonstrate to the Complainant that the Respondent no longer intends to be bound by one or more of the essential terms of the contract of employment. Referring to this test in Western Excavating (ECC) Ltd V Sharp (1978), which was applied further in Murray V Rockabill Shellfish Ltd (2012) ELR 331, a significant breach of the Complainant’s contract should be evident.

Having considered the issues, and based on the uncontested evidence presented, I am satisfied that the Complainant made reasonable efforts to bring the matter of his non payment of wages to the employer’s attention, particularly where he was not advised of any grievance procedures that he could utilise to have the matter remedied. The Complainant worked for two weeks in January 2019 without being paid, and again worked through the month of May2019 without being paid. When he brought his concerns to the Respondent, he was advised the Respondent did not have money because of problems with a bank account. When the Complainant asked if he qualified for redundancy, he was told no and that if he wanted to leave it was his decision.

Payment of wages is a significant element of the contract of employment. Where an employer fails to meet these obligations and offers no appropriate remedy it would be reasonable for the employee to view this as a fundamental breach of the employment relationship and a repudiation of the contract of employment. In the case within the Complainant demonstrated fortitude in his trust that the Respondent would eventually pay him, but despite working for a six-week period unpaid it became evident that the Respondent was not going to pay the Complainant despite his requests to be paid. On that basis I find the Complainant was reasonable in deeming the employment relationship fractured and where he had no alternative but to consider himself dismissed due to the behaviour of the Respondent.

I therefore find that the Complainant as a foreign national with little English, and with no written contract of employment was left with no option but to resign. As such I conclude he was constructively dismissed due to the actions of the Respondent by not paying him for the hours he had worked.

CA-00029808-004 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967    

Having consider the evidence I do not find that a redundancy situation existed. The Complainant left his employment because he had not been paid.

Decision:

CA-00029808-003 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977, I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress. Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

In accordance with Section 7(2) of the Act I find the Complaint’s loss was attributable to the conduct by or on behalf of the employer.

For the reasons set out above, and where the Complainant has found alternative employment, I decide the Respondent shall pay the complainant compensation of €2,070.

CA-00029808-004 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

As I have found that the Complainant was unfairly dismissed a redundancy situation does not arise. I therefore do not uphold this element of the complaint.

Dated:   6th July 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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