Complainant

Respondent

Anonymised Parties

A Manager

A Construction Company

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028858-001

30/05/2019

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

CA-00028858-002

30/05/2019

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

CA-00028858-003

30/05/2019

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

CA-00028858-004

30/05/2019

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

CA-00028858-005

30/05/2019

The complainant was employed by the respondent as a General Manager on the 1st January 2017 and his employment came to an end on the 25th March 2019. He worked 36 and a half hours per week and he was paid €50,000 per year. The complaint was referred to the WRC on the 30th May 2019. He is claiming under the Payment of Wages Act 1991, the Organisation of Working Time Act, 1997, the Terms of Employment (Information) Act, 1994, the Unfair Dismissals Act 1977 and the Redundancy Payments Act, 1967.

Payment of Wages

The complainant said that the respondent notified on the 30th October 2018 that due to a lack of work he would be put on a 3-day week commencing on the 1st November 2018. He said that the MD informed him that the company was not in a position to pay his salary and he told him to draw up a letter to say he was on a 3-day week for the Department of Social Protection. He said that despite this notification the MD expected him to work fulltime, but he was only paid for a three-day week for November and December 2018. He said that the documentation he submitted in evidence shows that he was working a 5-day week.

Hours of Work

The complainant said that the respondent constantly required him to work in excess of the agreed hours and he was not paid any overtime for it. He said that he was sent a work trip to Germany from the 21st to the 24 June 2018 and was not reimbursed for the extra time worked. He said that he requested holidays in lieu of the extra time worked but this was refused.

Holidays

The complainant stated that he was not paid for his full holiday entitlement in 2018. He said that he was required to work 3 days, the 23rd 24th and 25th July 2018, during his annual holiday in 2018. He also said that 2 days he was on an architecture course was put down as annual leave despite the respondent paying the fees and having permission to do the course.

Terms of Employment

The complainant stated that he was not provided with written terms of employment. He said that his terms of employment were orally agreed at the interview.

Redundancy

On the 14th of December 2018, the complainant said he was served with an RP 9 form informing him that due to lack of work in the company he was being placed on temporary layoff effective from 13th of December 2018. The complainant said he remained on lay off and on the 25th of March 2019, he submitted part B of the RP 9 form to the respondent informing him of his intention to claim redundancy. The complainant said that the respondent told him, in an email dated 26th March 2019, that he had offered him the position of company Secretary in November 2018, but he turned down this offer. He also alleged that the complainant handed in his notice just before Christmas. The complainant denies that he ever handed in his notice and stated that if he had done so there would have been no necessity for the respondent to serve an RP 9 notice of layoff.

The complainant said that the respondent also said in the email that he would be changing the complainant's role because of his lack of knowledge in his current position within the company. However, e went on to say that he was offering the complainant his old position back in the company on the same wages starting back on Monday the 24th of April 2019 in the offices in Dublin.

The complaint said that he carried out his role from his home in Galway and it was not necessary for him to attend the office in Dublin on a full-time basis. He was now being offered his job back on the basis that he works in Dublin. The complainant said he was unable to accept this offer. He is claiming that he is entitled to redundancy.

Unfair Dismissal

The complainant submitted that he was constructively dismissed. He said that he was entitled to resign from the company because of the conduct of the employer. The respondent did not pay his salary on time, his expenses were not paid in a timely manner his hours were cut and he was put on an extended period of layoff. The respondent asked him to return the company vehicle in December 2018 before he was put on lay off.

He said that when he sought redundancy from the respondent while he was on lay off he was offered his job back, but he was expected to work in Dublin. He said that the respondent’s conduct forced him into a situation where he had no option but to resign.

The respondent said that the complainant was put on a 3 day week in November 2018 because of a shortage of work. He said that if the complainant worked full time he had no permission. He said that he has no entitlement to be paid for a 5 day week in this period. The respondent said that he was not in a position to pay the wages of the employees and his accountant advised him to cut his staff as the turnover in the company had reduced from €2 m to €800,000. He asked the complainant to return the company van as he needed to sell it. The respondent stated that he had offered the complainant the position of company Secretary in November, but he turned down this offer and handed in his notice just before Christmas. The complainant did not leave.

The respondent said that he issued RP 9 notice of lay-off to all the employees including the complainant on the 13th December 2018. During the layoff he was in touch with the complainant and he told him he was setting up a new company and he offered him a job there in early February. The complainant claimed redundancy on the 25th March 2019.

The respondent stated that the complainant was not entitled to redundancy as he had offered him his job back. He said that there were some deficiencies in the complaints ability to carry out his work and for this reason he required him to report back for work in Dublin on the 24thApril 2019. He said that he also offered him a job in February as he intended setting up a new company and putting the complainant in charge of it, but the complainant refused this role. He said he was working around the complainant’s ability and this is the reason he offered him his old job but that he would have to work in Dublin. 

The respondent denied that the complainant ever worked overtime or that his hours of work exceeded the maximum hours or that he is entitled to any payment for time worked during the trip to Germany.

The respondent accepted he did not issue the complainant with the contract of employment. He said that they knew one another for 12 years and he believed that there was no need for a contract of employment. 

In relation to holidays, the respondent said that the complainant got his full holiday entitlement.   He denied that there was any arrangement with the complainant that he could do the architect course and he was not entitled to time off for it. He accepted that he paid the complainant’s fees.

Payment of Wages

The complainant is claiming that he is owed wages for November and December 2018. He said that he worked full-time, but the respondent only paid him for a 3-day week.

“ wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

5.—   (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

Section 5(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

The complainant is claiming that he was not paid for a number of days which he worked during November and December 2018. Section 41(6) of the Workplace Relations Act provides that there is a 6 month time limit for referring a complaint to the WRC. The complainant referred this complaint to the WRC on the 30th May 2019. Therefore, the cognisable for a claim in respect of the non-payment of wages is the 1st December 2018 to the 30th of May 2019. The claims in respect of the period before this cognisable period have been referred outside the statutory time limit.

During the 2 week period from the 3rd December to the 14th December 2018, the date on which the complainant was notified of the layoff, there are 4 days for which the complainant was not paid. I have examined the evidence submitted by the complainant and I am satisfied that he sent emails and dealt with the respondent’s customers over a 5 day working week during this period. I am satisfied that he was not paid for 4 days during this period. Therefore, I find the complaint is well founded.

Holidays

Section 23.—(1) (a)of the Organisation of Working Time Act, 1997 provides:

“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,”

The complainant stated that he was not paid for his full holiday entitlement in 2018. He said that he was required to work 3 days during his annual holiday in 2018, the 23rd, the 24th and the 25th of July 2018.   He also said that 2 days he was on an architecture course was put down as annual leave despite the respondent paying the fees and having permission to do the course.

The respondent did not produce any records to satisfy me that the complainant did not work during the 3 days. I found the evidence of the complainant more convincing. I am satisfied that the complainant had an agreement with the employer to do the architectural course and I am also satisfied that there was no agreement deduct of 2 days holidays. I find that the complaint in respect of holiday pay is well founded. I order the respondent to pay the complainant compensation for 5 days holidays in the amount €961.55. This amount is subject any lawful deductions.

Working Hours

The complainant said that the respondent constantly required him to work in excess of the agreed hours and he was not paid any overtime for it. He said that he was sent a work trip to Germany from the 21st to the 24 June 2018 and was not reimbursed for the extra time worked. He said that he requested holidays in lieu of the extra time worked but this was refused.

The respondent denied that the complainant ever worked excess hours or that he is entitled to any payment for time worked during the trip to Germany.

The Workplace Relations Act 2015 at Section 41(6) provides:

“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.”

And Section 41(8) provides

(8) “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

I note that the complaint was referred to the WRC on the 30th May 2019. Therefore, the cognisable period for the purposes of the Organisation of Working Time Act is the 1st December 2018 to the 30th of May 2019, the date on which the complaint was referred

The complainant has not provided any evidence of instances of working hours which exceeded the maximum hours allowed under the Act occurring within the statutory period of 6 months. I am also satisfied that an extension of the time limit under subsection 8 does not arise. I find that this complaint was referred outside the statutory 6 month time limit and I have no jurisdiction in the matter.

Terms of Employment

The complainant states that he was not provided with the terms of employment.

This is a complaint under the Terms of Employment (Information) Act, 1994 which provides the following statement should be provided to an employee:

3.—(1) “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, that is to say—

(a) the full names of the employer and the employee,

b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.”

The complainant said he did not receive a contract of employment when he started work with the company.

The respondent accepted he did not issue the complainant with the contract of employment. He said that they knew one another for 12 years and he believed that there was no need for a contract of employment. 

I find that the complaint under Section 3 is well founded. In accordance with Section 7(2)(d) of the Act I award the complainant €600 compensation for the breach of his rights under the Act.

Redundancy

The respondent denies that the complainant is entitled to redundancy. The respondent stated that the complainant was not entitled to redundancy as he had offered him his job back when he requested redundancy while on lay-off. He said that there were some deficiencies in the complaints ability to carry out his work and he required him to report for work in Dublin. He said that he also offered him a new job in February as he intended setting up a new company and putting the complainant in charge of it, but the complainant refused this role. He said he was working around the complainant’s ability and this is the reason he offered him his old job but that he would have to work in Dublin.

The complainant said that he claimed redundancy because he was on lay off for over 14 weeks.

The entitlement to a redundancy payment arises in Section 7 (1) of the Redundancy Payments Act 1967.

“An employee, if he is dismissed by his employer by reason of redundancy or is laid off kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided-

(a)     he has been employed for the requisite period, and

(b)     he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts immediately before the date of termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

The Redundancy Payments Acts at sections 11 to 13 provides as follows:

Section 11. Lay-off and short-time:

(1) “Where an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.”

Section 12. Right to redundancy payment by reason of lay-off or short-time:

(1) “An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1)(a) and not later than four weeks after the cessation of the lay-off or short-time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week's notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.”

Section 13. Right of employer to give counter-notice:

“(1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.”

I note that the complainant served the RP9 Part B on the 25th of March 2019 and the respondent replied by email the following day offering the complainant a job with the company at the same rate of pay starting on the 22th April 2019. The respondent also advised the complainant he was changing his role within the company because of his lack of knowledge in the previous role and would have to change his work location from Galway to Dublin.

The counter offer of employment made by the respondent to the complaint differed in nature and location from the work for which he had carried out before the lay-off. I am satisfied that the counter offer of employment does not comply with section 13.   Section 15 of the Redundancy Payments Acts provides that employee is not entitled to a redundancy payment if he or she unreasonably refuses an offer of alternative employment. I am satisfied that it was not unreasonable in the circumstances for the complainant to refuse the role given that his place of employment was changed from Galway to Dublin. For these reasons, I allow the appeal of the complainant against the respondent’s decision to refuse redundancy.

Unfair Dismissal

The complainant stated that he was forced to leave the employment because of the behaviour of the respondent. He is claiming constructive dismissal.

Section 1 of the Unfair Dismissals Act 1977 as amended define dismissal in relation to an employee as follows:

(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 Labour Court in the case of Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, endorsed the legal test in respect of constructive dismissal as 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. The ‘contract test’ is set out 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.”

The Labour Court went on to say: “Where an employer commits a repudiatory breach of contract the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract.

….. the definition deals with a situation in which the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving there and then.

The burden is on the complainant to show that his resignation was justified in all the circumstances. The complainant put forward a number of matters outlined above as evidence to support his claim of unacceptable behavior by the respondent.

I note that the complainant was on lay off and he resigned from the employment. He said that he resigned because the respondent had changed his working conditions and his work location. Having reviewed the evidence, I am satisfied that there is no basis for the complainant’s claim that the conduct of the employer entitled him to resign. In applying the jurisprudence of the Labour Court in the case of Paris Bakery cited above the Labour Court, in considering conduct, said: “be regarded as so unreasonable as to justify the employee in leaving there and then.”

I cannot accept that the Respondent was guilty of conduct which “is a significant breach going to the root of the contract of employment” applying the test in Paris Bakery cited above.

For all the above reasons, I find that the Complainant has failed to meet the threshold to establish a complaint of constructive dismissal in accordance with Section 1(b) of the UD Act and as set out in the caselaw cited above. Therefore, I find that the complainant was not unfairly dismissed.

CA-00028858-001 Payment of Wages Act.

I find the complaint is well founded. I award the complainant compensation pursuant to section 6 of the Act in the amount of €770. This amount is subject to any lawful deductions.

CA-0028858-002 The Organisation of Working Time Act, 1997

Holiday Pay

I find that the complaint in respect of holiday pay is well founded. I order the respondent to pay the complainant compensation for 5 days holidays in the amount €961.55. This amount is subject any lawful deductions.

Working Hours

I find that this complaint was referred outside the statutory 6 month time limit and I have no jurisdiction in the matter.

CA-00028858-003 Terms of Employment (Information) Act, 1994

I find that the complaint under Section 3 is well founded. In accordance with Section 7(2)(d) of the Act I award the complainant €600 compensation for the breach of his rights under the Act.

CA-00028858-005

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.

I allow the appeal of the complainant against the respondent’s decision to refuse redundancy. I find that he is entitled to a statutory redundancy payment based on the following:

Date of Commencement                               1st January 2017

Date employment ended                             25th March 2019

Gross Pay Weekly                                          €600 (maximum weekly pay under the Act)

This is subject to the complainant being in insurable employment.

CA-000288858-004 Unfair Dismissals Act

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.

I find that the complainant was not unfairly dismissed.

Payment of Wages Act, 1991, Organisation of Working Time Act, 1977, Holidays and working hours, Terms of Employment (Information) Act 1994, Contract of Employment, Redundancy Payments Act, lay-off entitlement to redundancy, Unfair Dismissals Act, 1977, Constructive Dismissal.