Complainant

Respondent

Anonymised Parties

A Quality and Test Operator

A Grass Machinery Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029941-001

29/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029941-002

29/07/2019

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

CA-00029941-003

29/07/2019

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

CA-00029941-004

29/07/2019

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

CA-00029941-005

29/07/2019

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

CA-00029941-006

29/07/2019

The issues in contention concern the alleged Unfair Dismissal of a Worker and associated notification complaints of Terms and Conditions of Employment, Pay, Wage Deductions, and Holiday Pay.

Act

Complaint/Dispute Reference No.

Summary case

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

CA-00029941-001

The Complainant alleged that he had not received a proper Statement of his Terms and Conditions within the required two months of his start date in 2015.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029941-002

He was Dismissed and had not received any Notice Pay.

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

CA-00029941-003

He had not been notified in writing of a change to his Terms and Conditions of Employment,

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

CA-00029941-004

The Respondent Employer alleged that the Complainant had resigned. This was absolutely not the case. He had simply asked for “References” in case he needed them in the future. There was an outstanding issue between the Complainant and the Respondent regarding a Personal Injury action. The Complainant had felt very pressurised by the Respondent in this regard. The meeting on the 26th April 2019, at which it was alleged that he had resigned, had been instigated by the Respondent. The Respondent had chosen to misinterpret the Complainant’s requests for “References” as a Resignation. When he had sought to clarify his employment position after the meeting he had been ignored by the Respondent who effectively then “Railroaded” him out of the Company.

No Fair Procedures had been followed, no Appeal was offered, and he had been denied Natural Justice.

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

CA-00029941-005

The Complainant was not paid his proper and legally due Holiday Pay.

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

CA-00029941-006

The Respondent made a Deduction of €1,000 from the last pay of the Complainant. This deduction was completely illegal and in total breach of the Payment of Wages Act,1991. It was alleged that the €1000 represented a “Loan” from the Respondent in 2018. If any such Loan existed, it was a Civil Law matter and not the subject of a Wage deduction from the legally due renumeration of the employee.

Act

Complaint/Dispute Reference No.

Summary case

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

CA-00029941-001

It was accepted that a Statement of Terms and Conditions had not been provided within the two months required period.

However, any Breach of the Act here was merely a technical issue and the Complainant had not suffered any detriment as a result.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029941-002

Al proper Statutory notice and or pay in lieu had been paid.

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

CA-00029941-003

Any complaint here is denied. On the Complainant’s return from a prolonged period of Sick/Injury leave he was given an enhanced role at a higher rate of pay. The Complainant clearly understood what was involved and suffered absolutely no detriment. Any Breach of the Act is absolutely a very minor technical issue.

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

CA-00029941-004

The Complainant was a valued member of the Respondent Staff. He had occupied a key end of line, high trust, Quality and Inspection role. His leaving the Company was very sincerely regretted.

The Employer strongly maintained that the Complainant had resigned at the meeting of the 26th April. Oral Evidence was given by the Respondent Principal, Mr. Xa and in particular the Complainant’s Line Manger Mr. Xb, that the Complainant had made no secret that he was leaving to join another local engineering firm, Company B. Money was an issue as Mr. Xb had informed the Complainant on the 24th April that no immediate wage increases were to be expected from the Respondent firm. On hearing this the Complainant had requested his “references”. He had informed Mr. Xb on the 24th April of his plans and the meeting on the 26th was a follow up with the Proprietor/Director to whom Mr. Xb had reported the issue. The date issue was due to Mr. Xa being overseas on business on the 24th/25th. Mr.Xa. had discussed the issue with the Complainant and there was absolutely no doubt that the Complainant was leaving of his own volition.

As regards the post 26th Communications from the Complainant the Respondent felt that the Complainant was in a very critical Quality Control position. In such a position the Respondent felt that the Company could not take the risk of having an Employee whose commitment was now questionable. Accordingly, he, Mr. Xa, felt that the best decision as to immediately pay off the Complainant. It was clear that the Complainant was going to another local job and his almost immediate reemployment at Company B by was evidence of this.

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

CA-00029941-005

All Holidays, both Standard and Public Holidays had been paid.

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

CA-00029941-006

In 2018 the Complainant had experienced considerable financial stress due to his injury. As his Social Protection payments were ending and he a major family commitment in Poland the Respondent had advanced the cost of the trip to Poland. It was not supported by any formal paperwork but had clearly been a “Loan” on a Trust basis. As the Complainant was ending his employment the Respondent felt that the repayment of the Loan was morally due.

3:1       Adjudication Approach.

There are six complaints in this case. The principal complaint is CA -00029941-004 -the Unfair Dismissal issue. I will deal with this first and the other complaints will then be dealt with in turn.

3:2     CA -00029941-004 -the Unfair Dismissal issue.

3:2:1   The Relevant Law

The relevant Law is the Unfair Dismissals Act ,1997 supported by the provisions of S.I. 146 of 2000 -Statutory code of Practice on Grievance and Disciplinary Procedures. There is also a most extensive body of Legal precedents. The overriding Legal Principles are those of Natural Justice which have to be seen to be followed at all times.

Section 1 of the UD Act, 1977 under Definitions defines Dismissal as

“dismissal”, in relation to an employee, means—

( a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

( 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,

Section 6 of the UD Act,1977 provides

Unfair dismissal.

6

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 the circumstances, there were substantial grounds justifying the dismissal.

Legal precedents as set out in Redmond on Dismissal Law, Bloomsbury, 2017 and Meenan, Employment Law, Round Hall, 2015 make the following points.

In a Constructive Dismissal case the two key “tests” are firstly Fundamental breach of the Employment Contract by either party and secondly Unreasonable Behaviour so bad as to make the Continuance of the Contract unreasonable for a party.

In a Dismissal situation the first point that must be considered is whether or not a Dismissal actually took place and then, if it was at the instigation of the Employer or if the Employee resigned – a Constructive Dismissal.

In the case in hand this is a key issue.

All cases rest on their own facts and particular local circumstances and I will now look at these.

3:2:2       The evidence considered / Was there a Dismissal.?

Much of this case hinges on events from the 24th to the 26th April and Complainant meetings with the Line Manger Mr. Xb, on the 24th and Mr Xa -the Proprietor/Director on the 26th.

Oral evidence was given by all involved. It was subject to cross examination by the Legal Representatives.

A key witness was Mr. Xb, the Line Manager. He explained that the Complainant was a valued employee. The Complainant had asked for a wage increase. When this was not forthcoming he had “asked for his references” and in the discussion he had made it plain that he was going to Company B. As the final decisions on employment matters rest with the Director, Mr Xb, had informed Mr. Xa by phone. It was agreed between them that Mr. Xa would speak to the Complainant immediately on his return. There were no witnesses to the conversation. On reviewing the oral evidence, I came to the view that Mr. Xb’s evidence was genuine.

The evidence of Mr. Xa, the Director was lengthy. He had clearly understood from Mr. Xb that the Complainant was resigning. In Oral evidence the meeting could best be described as an Exit interview. He recalled that the first question he had asked was along the lines of

“You are leaving us?”.

The Complainant had replied in his recollection “Yes”.

He had asked if he, the Complainant, was going to Company B and the Complainant had been non-committal. More money per hour in Company B was mentioned. While there were no witnesses Ms Xc the office administrator had been called in by Mr. Xa, in the Complainant’s presence. Mr. Xa had told her to finalise the Complainant’s outstanding monies as he was leaving. The Complainant had not disagreed. Mr. Xa reaffirmed that the Complainant was an excellent employee who was in a position of high trust. He had been treated very well over the years, he had been given a Car Loan by Mr. Xa personally and had been afforded a further Loan of €1,000 to go to a Family event in Poland. His departure was sincerely regretted.

In his oral evidence the Complainant and his Legal Advisor raised a cultural/linguistic issue. In Poland “asking for your references” was a normal employee request - it was tantamount to simply keeping you Job file “up to date” and was in no way equivalent to a Resignation. This fact had been possibly misunderstood especially by Mr. Xb, the Line Manager. In evidence the Complainant alleged that it was clear that Mr. Xa had an agenda and was happy to exit the Complainant. The Complainant alleged that It suited Mr Ax’s negative purpose that a “Resignation” gloss could be put on the story.

The Complainant further alleged that this “Resignation” story was factually completely false, and the e mails post the meeting of the 26th were completely specific that no Resignation had taken place.

It was alleged that the Respondent, Mr. Xa in particular, had a major issue with the Complainant’s Personal Injury legal action and he was determined to exit the Complainant from the Company. The question of repayment of monies advanced to “top up “wages during his Injury Absence was raised by Mr. Xa during the meeting. The ongoing issues with the Personal Injury action had completely stressed the Complainant and he was convinced that no matter what happened he was going to lose his employment. The raising of the wages issue was a further example, the Complainant alleged, of how stressful the situation was.

The Oral presentation of the Complainant was uncertain and gave rise to doubt in my mind. He seemed to have had “Buyer regrets” issue post the meeting but at the same time was in employment at Company B within four weeks.

I attached some considerable evidential weight to Mx Xb, the Line Manager, as he knew the Complainant well on a personal basis and was unlikely to have got the story wrong regarding the discussion of the 24th. The e mail of the 27 July from Mr Xb to the Complainant refers to

“You will remember that on more than one occasion that I tried to dissuade you from leaving and asked you to tell me what you needed to stay”.

In Redmond on Dismissal Law, 3rd Edition, Bloomsbury 2017 the discussion on resignations at Section 22.22 Page 495 cautions that “Contextis everything”. The Complainant’s legal Advisor raised the Legal point of “was he pushed, or did he jump” and the purported negative view of the Courts to Employers seeking to manipulate employees in this context.

The Legal issue also arises of what could be called “Doubtful Dismissals” or in this context “Unclear Resignations”. Redmond on Dismissal Law, referred to above, at Section 22.25 page 496, states

If, therefore, an employee tries to withdraw a notice of resignation, an employer should ask himself whether special circumstances exist. If so, they may cast doubt on whether the resignation was really intended. The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of facts.”

In the case in hand the Complainant clearly wanted to, publicly correct, any suggestion that he had resigned. However, this seems to have lessened as time passed and the prospect of work in Company B arose. It appeared that he did not take up Manager Mr. Xb’s offer to speak to Mr. Xa on his behalf. From the Oral evidence it was clear that the good personal relationship with Mr. Xa was now a thing of the past. There was considerable frustration on the Respondent side regarding unsuccessful efforts to settle the Personal Injury action and the Complainant was clearly under stress as a result. His GP certified him as Unwell due to stress on week of 29th April.

Relying largely on the Oral evidence I came to the view that the meeting on the 26th had been characterised by stress on the Employee side and frustration and personal disappointment on the Respondent side. A Parting of the Ways seemed inevitable. The refusal to engage in follow up contacts post the 26th complicates the issue Legally from the Employer side. Equally the Social Welfare “Waiting Time” issue following a Resignation seemed to have been on the Complainant’s mind.

On balance and having considered all he available evidence I have to come to the view that a Resignation of some sort took place on the 26th but was withdrawn afterwards in the email traffic.

I came to the view that an Unfair Dismissal, from a strict legal point of view and largely due to a failure to acknowledge the Complainant’s efforts at “Retraction and or Clarification”, took palce.

However, I was also of the firm view the Complainant was far from blameless and contributed largely to the situation.

In considering redress I will consider this.

Technically an Unfair Dismissal took palce.

3:2:3       Unfair Dismissal Redress

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.

Regard has to be had to the economic loss, if any suffered by the Complainant. He was out of work for some 24 days before moving to Company B. On the basis of figures supplied his theoretical economic loss was approximately €2,600.

I did not accept that future losses arising from the later ending of his new employment could be, in fairness and having regard to all the circumstances, made a factor in the redress calculations.

On the basis of the evidence and the clear contribution of the Complainant to the entire situation I am awarding the sum of € 1,000 as Redress to the Complainant for the Unfair Dismissal.

3:3        CA-00029941-001 Terms of Employment (Information) Act, 1994

The Complainant was not provided with a Statement of Terms and Conditions within the two months period of his starting employment. This was accepted. However, the Complainant suffered no material or financial loss as a result.

Accordingly, I award the sum of €100 for Breach of a Statutory Right.

3:4       CA-00029941-002 – Minimum Notice & Terms of Employment Act, 1973

The Complainant maintained that he was not paid his correct Notice. As an Unfair Dismissal has been found he is entitled, based on his service from 2015 to 2 weeks’ notice pay – 2 X 32 hours - his standard week.

I accordingly, under the Minimum Notice & Terms of Employment Act, 1973 award the sum of 64 hours at €12.00 per hour = € 768.00

3:5           CA-00029941-003 - Terms of Employment (Information) Act, 1994

The Complainant maintained that he had not been notified in writing of a change in job role on his return to work following his injury.

From all the evidence presented it appeared that the Complainant had been moved from one work location to another. It did not appear that any major or fundamental change to his contract of employment had taken palce.

Accordingly, I did not find this Complaint to be well founded. It is set aside.

3:6       CA-00029941-005 Working Time Act,1997 complaint.

The Complainant maintained that he had not received his proper Holiday pay.

From detailed Wage sheets provided I was satisfied that Holiday pay (Standard and Public) had been properly paid. Pay Slip Period 19 refers.

Complaint is Not Well Founded and is dismissed.

3:7       CA-00029941-006 Payment of Wages Act,1991 complaint.

This issue refers to the alleged Loan of €1,000 made to the Complainant which the Respondent recouped from the final Wage & Holiday payments.

Section 5 of the Payment of wages Act,1991 clearly specifies the types of legally permissible deductions from an Employees’ wages. A clear written agreement is a fundamental requirement.

The €1,000 was paid on a “Trust” basis. In the absence of any paperwork agreeing to a repayment schedule or an agreed Deduction regime it is not legally permissible for the Employer to recover the monies due from Wages/Notice or Holidays.

Accordingly, I direct that the Deduction of €1,000 be reversed and repaid to the Complainant.

The Complaint is Well Founded.

It is perfectly legal and acceptable for the Respondent to initiate Civil legal proceedings to recover this quite obvious Debt.

Act

Complaint/Dispute Reference No.

Summary Decision / Please refer to Section Three above for detailed reasoning.

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

CA-00029941-001

Complaint Well Founded.

A Compensation Award of € 100 is made in favour of the Complainant.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029941-002

Statutory Notice Pay is due.

2 weeks standard pay = 64 hours at €12.00 per hour = € 768.00 is awarded to the Complainant

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

CA-00029941-003

Complaint is not well founded.

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

CA-00029941-004

Unfair Dismissal was established. A Redress award of €1,000 is made in favour of the Complainant.

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

CA-00029941-005

Complaint Not Well founded.

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

CA-00029941-006

Complaint well founded. The Deduction of €1,000 to be reversed and repaid to the Complainant.