Complainant

Respondent

Anonymised Parties

Project worker

Community based employer

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-00031438-001

08/10/2019

The claimant made a complaint to the Workplace Relations Commission against her employer – the respondent.

The respondent company were placed in official liquidation on the 11th September 2019.

The claimant alleges that the respondent constructively dismissed her from her employment within the meaning of the Unfair Dismissals Act 1977,

as a result of distress caused to her mental wellbeing by the failure to pay her wages when they fell due for payment.

She submits the erratic nature of the payments had a severe negative effect on her personal and professional life.

The respondent, nor any representative, attended the hearing.

I conducted an oral hearing of the complaint on the 23rd January 2020.

As only the claimant attended the hearing on that day I gave the claimant an opportunity to state her case. I am satisfied that both parties were correctly notified of the date of the hearing.

The claimant commenced work with the respondent on the 15th March 2017 and resigned her position on the 23rd April 2019.

The claimant states that she resigned due to the distress and the unpredictability of the payment of wages to her on the due dates.

These included late payments, partial payments with little or no support from management. The claimant submits that the problems commenced in June 2018 and continued up to April 2019 when she resigned.

The claimant submits that the late payments resulted in anxiety on a continuous basis from June 2018.

The late wage payments had a negative effect on her personal and professional life whereby she was continually late paying her monthly rent in addition to paying outgoing bills.

She submits that she struggled to pay for transport to and from work and the cumulative effect was to make her anxious, stressful which affected her mental health.

She submits that she was never informed about the availability of a Grievance Procedure in the organisation. However, circumstances forced her to resign and seek alternative employment.

The claimant’s position is that she did not want to leave the employment as she enjoyed the work and job satisfaction.

The respondent, nor any representative from the office of the liquidator attended the hearing.

Complaint of Constructive Dismissal.

Complaint seeking adjudication under Section 8 of the Unfair Dismissals Act 1977.

I have considered the evidence, both written and verbal, presented at the hearing on the 23rd January 2020.

The claimant worked for the respondent for a period in excess of two (2) years. During the first year of employment it would appear that she enjoyed a good working relationship with her employer.

In evidence the claimant submitted that the failure of the respondent to pay her the full amount of her salary on the due dates with the consequential effect on her health, her mental wellbeing and on her ability to pay her rent, transport costs to and from work and outgoing bills, left her no option but to resign her employment.

It falls to me as an adjudicator to consider if the conduct of the employer was so unreasonable it justified the complainant resigning from her employment.

Dismissal within the meaning of the 1977 Act occurs where the termination by the employee of his contract of employment with his employer, whether prior notice of 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.

Section 6 of the Act states: “Section 6 (1) subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all of the circumstances there were substantial grounds justifying the dismissal. The combined effect of these two provisions of the Act places an obligation on an employee to establish the employer’s treatment of an employee were so serious that their resignation amounted to dismissal within the meaning of the Act”.

In McCormick v Dunnes Stores ADJ 00012803, the Employment Appeals Tribunal held “That the employee had to demonstrate that he had “exhausted all internal procedures formal or otherwise in an attempt to resolve his grievance with his/her employer”, before resigning”.

In the instant case I have considered all of the evidence, both written and verbal, presented at the hearing.

I have considered the relevant jurisprudence and in all of the circumstances I find that the complaint of Constructive Dismissal is well founded for the following reasons:

1)      The complainant raised the issue of her dissatisfaction with the respondent company. Despite repeated reassurances that the difficulties with the unpredictability of the payment of wages would be resolved, there were repeated breaches of her agreement with the respondent in respect of pay.

2)      In the circumstances where the claimant made the respondent aware that she was suffering anxiety and stress as a result of her financial situation by the failure of the respondent to meet its obligations to her in accordance with their agreement.

The respondent offered little or no support to the claimant.

3)      The claimant maintains that she never received a formal Grievance Procedure from the respondent. I must accept this as there was no other evidence from the respondent to contradict the claimant’s position. In any event I found the claimant to be a reliable witness and she made every effort to resolve the issue directly with the employer

Based on these findings I find that the claim of Constructive Dismissal is well founded, and the question of redress arises.

The claimant mitigated her loss and secured alternative employment within one (1) week. However, she continues to be at a loss of over €348 per month when compared to her employment with the respondent.

It falls to me as an Adjudication Officer to address the issue of loss.

I order the respondent to pay €581.39 gross to the claimant, which is equivalent to one (1) week’s pay, plus the sum of €1,044 in compensation for the loss of income going forward. This amounts to the loss of €348 per month over a three (3) month period.

“Constructive Dismissal”