Complainant

Respondent

Anonymised Parties

General Operative

Landscaper

Representatives

Self-Represented

Self-Represented

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-00034935-004

01/03/2020

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

CA-00034935-005

01/03/2020

The Complainant commenced employment with the Respondent on 6th November 2018, at all times his job title was that of “general operative”. The Respondent is a landscaper, during the Complainant’s employment he was his only direct employee. The Complainant was paid an hourly rate of €12.50, while some dispute arose in relation to his average weekly hours, it was agreed that he received an average payment of €400 per week towards the end of his employment.

The Complainant terminated his employment on 27th February 2020. He alleged that the conduct of the Respondent, in particular an unauthorised deduction for his wages, permitted him to consider his contract terminated and himself constructive dismissed from his employment. The Respondent, in denying the claim, stated that any deductions from the Complainant’s wages were lawful and justified. They stated that as the Complainant left of his own volition, his constructive dismissal complaint could not succeed.

The present complaint was received by the Commission on 1st March 2020 and a hearing in relation to the same was convened and finalised on 13th October 2020. In advance of the hearing both parties issued written submissions, during the hearing both parties provided direct evidence and availed of the opportunity to question opposing evidence as presented. No issues as to my jurisdiction to hear the claim were raised at any stage.

As the complaint relates to a claim of constructive dismissal, the Complainant accepted the consequent burden of proof and gave his evidence first.  

The Complainant stated that at the outset of his employment, he was not issued with a contract of employment or any other documentation.

For the first few months of his employment he did not receive any payslips unless he directly requested them. At the end of January 2020, the Complainant began to receive weekly payslips without any request for same. When he examined these, he noticed that an amount had been deducted from his wages without his consent or knowledge. When he queried this matter with the Respondent, he was informed that his tax had been incorrectly calculated and that he owed money to the Respondent. On receipt of this information the Complainant requested the previous three months of payslips. When he examined these, he noticed that he had been underpaid for his public holidays.

The following day, the Complainant raised the issue with the Respondent, querying why he did not receive the full rate for the public holidays and why a deduction had been taken from his wages without his consent. By response, the Respondent stated that his wife usually handles the financial affairs and would answer his queries. When the Respondent’s wife attended the site later that day she stated that the public holidays were correctly calculated and that the deduction arose from an overpayment of tax that had been rectified. At this point, the Respondent’s wife stated that the Complainant would be placed on a “back-week” to ensure the tax problem did not rise again. The Complainant strongly contested this development as it would leave him without a wage for a week, which as the sole earner in his household would have an extremely detrimental effect. When the Respondent’s wife again stated that the Complainant would be placed on a back-week and that it was the Complainant’s fault for raising the issue in the first place. At this point the Complainant stated that he would have no choice but to hand in his notice of resignation, The Respondent’s wife advised that she was happy to receive the same but that his wages would still be paid in arrears. During his final week of employment, the Complainant only received 16 hours of work.

In summary, the Complainant submitted that the unlawful deduction from his wages, coupled with the Respondent’s reaction to his raising the issue resulted in his contract being effectively terminated.

In answer to a question, the Complainant stated that he did not raise the issue again or consider his actions during the notice period as the Respondent had confirmed their course of action.

The Respondent is a landscaper, operating as a sole trader. While the Complainant was his only employee, his wife took care of the administrative functions of the business, including payroll.

At the outset the Respondent accepted that they did not provide the Complainant with any form of contractual documentation. They stated that they were unaware of this legal requirement and advised that they would rectify matters going forward.

The Respondent stated that at the outset of his employment, the Complainant demanded to receive his weekly payment at the end of the working week. While the Respondent usually operated a week in hand system, they agreed to this request to facilitate the Complainant. This system involved the Complainant sending in his hours on the Thursday of each week, with the Respondent’s wife sending these to their accountants who would calculate payment, with the transfer being put through for payment the following day. Unfortunately, this tight time frame resulted in some errors arising in the calculation. In particular a calculation error occurred on three separate occasions at the start of 2020, resulting in a overpayment of €33.06 to the Complainant. The Respondent’s wife advised that she informed the Complainant that they intended to deduct this overpayment from his forthcoming wages.

On Thursday 20th February, the Respondent’s wife attended a work site. When she arrived, the Complainant complained forcefully about the deduction from his wages. The Respondent’s wife was taken aback by the strength with which the Complainant voiced his displeasure. This caused some concern for the Respondent as their present client may have been in a position to overhear their conversation.

In order to resolve the issue, the Respondent’s wife suggested that she would complete the relevant transfer on the Friday of each week, with the payment falling due on the following Monday. Again, the Complainant responded extremely negatively to this suggestion. Failing that resolution, the Respondent’s wife suggested that they implement a “back week” system whereby the Complainant would effectively work for a week in hand. This suggestion caused the Complainant to become extremely angry, cumulating with his handing in his one week’s notice. With this notice, the Complainant requested all his previous payslips which were issued to him. On a review of the same, it transpired that the Complainant owed the further sum of €13.08, which was not deducted from his wages.

In evidence the Respondent stated that on the morning of the 20th February, he offered to pay the Complainant the deduction in wages from his own pocket in order to resolve the issue and retain the Complainant as an employee. The Complainant rejected this offer stating that he wished to take it up with the Respondent’s wife. The Respondent accepted that he Complainant’s hours were reduced during his final week but submitted that this was due to inclement weather and was unrelated to the events of the previous week.

In the present case, the Complaint has alleged that conduct of the Respondent was such that he could not continue in his employment and was justified in considering the same terminated. In the alternative, the Respondent has argued that they acted reasonably at all times and that it was the Complainant that acted unreasonably in terminating his contract of employment.

In this regard, Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows:

“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”

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘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. If he does so, then he terminates the contract by reason of the employer’s conduct.

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.

From the evidence tendered by the Complainant, it is clear that his claim relates to the latter to the two tests. In essence, he has alleged that the conduct of the employer was such that it was reasonable for him to terminate his contract. In seeking to prove this case, it is incumbent on a Complainant to demonstrate that they have sought to engage with the internal grievance procedures, or in the absence of the same, brought the matter to the attention of the Respondent and allow them the opportunity to answer the complaints.

In the present case, the Respondent is a sole trader, with the Complainant as his only employee. As the Respondent was unused to such matters, he was unaware of his legal obligation to issue contractual documentation to his employee at or near the commencement of his employment. Whilst this does not operate as a defence to the Respondent’s legal obligations in this regard, it also does not absolve the Respondent of his duties to his employee generally.

From the evidence tendered by the Complainant, it is clear that a legitimate grievance arose regarding his terms of employment. As a consequence of the absence of contractual information, and by extension a grievance procedure, the Complainant was unaware of any formal method to ventilate this concern and seek to have the same addressed. In such circumstances, it is apparent that the Complainant took a common-sense approach and sought to raise the issue verbally with the Respondent. In doing so, it is clear that the Respondent did seek to address his concerns and resolve the issue. However, when matters reached an impasse, it is apparent that the Complainant felt that he had no option but to resign his employment. At this point, it could be said that the Complainant had brought the grievance as far as he could- he informed the Respondent of his issues, the Respondent issued their response and that, as far as he was concerned, was the end of the matter.

At this juncture, the Respondent should have offered the Complainant the right of appeal or the option of enlisting a third party to seek to resolve the concerns. This would have provided the Complainant with an alternative to resignation and may well have avoided the termination of this employment.

Having regard to the foregoing, I find that the Complainant acted reasonably in seeking to have his grievance heard and allowed the Respondent an opportunity to respond to the same.

Regarding the actual reason for the resignation, the Claimant accepted that this came down to the alleged imposition of a “back-week” payment system. The imposition of this system would have resulted in his receiving no income for a week, which would have resulted significant difficulties as the father of young children. A conflict of evidence arose in relation to this point, with the Respondent adamantly submitting that the “back week” was suggested as a potential resolution to the difficulties experienced by the Complainant, as opposed to an imposition of a new payment schedule. It is clear that this conflict of evidence is essentially impossible to resolve. In evidence, the parties were attempting to recall a conversation that took place, in the midst of an argument, some ten months previous. However, as the employer in this situation, the Respondent again had a duty to schedule and properly record all such meetings. As the failure in this regard lay with the Respondent, I prefer the evidence of the Complainant and find that the back-week system was imposed on him in January 2020.

Having regard to the totality of the evidence presented by the Complainant, I find that that the Complainant acted reasonably in terminating his contract of employment in January 2020. The issue of pay, and the manner in which same is received, is one of the principle terms of a contract of employment, to unilaterally amend the same in unreasonable in this context. In making this finding I am cognisant of the size and resources of the Respondent, in this regard I do not expect them to be held to the same standard as a large corporate organisation. Nonetheless, the Respondent is an employer, and in all such instances this carries certain duties and obligation regardless of the number of employees engaged.

In summary, I find that as it was reasonable for the Complainant to terminate the contract of employment. In accordance with Section 1, his dismissal was unfair for the purposes of the Act. Consequently, I find that his application is well-founded and find in favour of the Complainant.

CA-00034935-004 – Complainant under the Terms of Employment (Information) Act 1994

In circumstances whereby the Complainant did not receive a contract at any stage of his employment. I find that the Complainant is well founded and find in favour of the Complainant.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks remuneration in respect of breach of the Act.

Having regard to the totality of the evidence presented, I award the Complainant the sum of €1,600, or four week’s remuneration in compensation.

CA-00034935-005 – Complainant under the Unfair Dismissals Act 1977

The Complainant’s application is well-founded and consequently I find in favour of the Complainant.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In evidence, the Complainant stated that he had secured an alternative employment at the same rate of pay shorty after the termination of his employment. As such, his losses arising from the dismissal were minimal. Nevertheless, in such situations, Section 7(1)c(ii), as inserted by the Unfair Dismissals Act 1993, empowers me to award compensation not exceeding 4 week’s remuneration.

Having regard to the totality of the evidence presented, I award the Complainant the sum of €1,600, or four week’s remuneration in compensation.

Constructive Dismissal, No Contract, Grievance Procedure, Method of Payment