ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00026422

Parties:

Complaints:

Date of Adjudication Hearing:  17/12/2020

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969,following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Background:

The Complainant commenced his employment in the Respondent’s Guest House on 6th December 2016. When he left his employment on 9th August 2019 he was Duty Manager. The Complainant maintained that he did not receive the minimum rate of pay; that he was not afforded the opportunity to receive his daily rest period; that he was constructively dismissed in the manner the Respondent treated him including an alleged failure of the Respondent to deal with false bullying complaints against the Complainant.

The Respondent denied the allegations.

Summary of Complainant’s Case:

CA-00033729-001 Complaint under section 24 of the National Minimum Wage Act, 2000

The Complainant submitted that following his appointment in 2016 he was employed on a full-time contract from 27th August 2018 and was paid a set wage of €400 per week. The Complainant submitted that he worked on average 45 hours a week which amounted to €8.98 per hour. The minimum wage from 1st January 2019 was €9.80.  He therefore maintained that he was underpaid €0.82 per hour (€36.90 per week). The Complainant also submitted that his pay did not include a premium for having to work on a Sunday

CA-00033729-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

The Complainant submitted that he was rostered a number of times to work closing shifts until late at night and then open early the next day.  Specifically, the Complainant maintained this occurred on 11th May 2019 where he worked until 4am and was rostered to start at 7am. The Complainant also submitted that he was rostered to work the same shift the following week but this did not eventually occur however he only received a half bothered apology from a director.

CA-00033729-003 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant submitted that on the 27th May 2019 he was served a letter requesting an explanation for voiding a transaction in error on 11th May 2019. He maintained that after he explained his error, he was brought into a disciplinary investigation without being given an invitation beforehand. The investigation was carried out by the accountant/bookkeeper and the Complainant responded to the matter. A written warning was subsequently issued to the Complainant on 4th June 2019. The Complainant then submitted an appeal to a Director of the company who upheld the written warning.

The Complainant advised that on 28th July 2019 he was again taken into a disciplinary meeting held by a Duty Manager and a Director. The Complainant contended that he was verbally abused at that meeting and given a final warning. He maintained that during the meeting he was told he was “an xxxxxxx” and that the Director knew he had applied for jobs elsewhere. The Complainant submitted that he received a warning for 'bullying staff' and for not completing his tasks in a timely manner despite asking for help. The Complainant contended that he never received any documents to back up the “unfounded claim of bullying” and he handed in his notice following this on 9th August 2019. He was of the view that having worked very hard for the Respondent he was isolated and treated badly because he had applied for work in a nearby hotel.  The Complainant submitted that this caused me a lot of stress and made it hard for him to come to work as he could not apologise to the anonymous staff who accused him of bullying so that he could rectify and redress the situation. He maintained that he was not offered any form of help from management, and was told by the Director that he “had better find work elsewhere if I'm not happy”.

In addition, the Complainant maintained that after hours and on multiple occasions he had received and was obliged to reply to WhatsApp messages about work related matters, including issues after hours; and cited an example of receiving a message at 01:53hrs on 21st July 2019 when he was rostered to work at 7am. The Complainant also submitted that he has been called a 'xxxx', daily by his superior who is now the general manager; and HOD Meetings were held that he should have attended as a head of Department but he had not been invited to these meeting. The Complainant submitted he was therefore isolated and expected to perform to duties with little to no knowledge.

In light of these issues and the unfair disciplinary actions the Complainant felt he had no option but to leave his job and contended that due to the actions of the Respondent he was constructively dismissed on 9th August 2019.

CA-00033729-004 Complaint under Section 8 of the Unfair Dismissals Act, 1977                                                                                                 

The complaint was dealt with under Complaint 003 above.

CA-00033729-005 Complaint under section 13 of the Industrial Relations Act, 1969

This claim was withdrawn at the hearing as the dispute related to the Unfair Dismissal complaint under 003 and 004 above.

Summary of Respondent’s Case:

CA-00033729-001 Complaint under section 24 of the National Minimum Wage Act, 2000

The Respondent strongly disputed that the Complainant did not receive the minimum Rate of Pay. The Respondent submitted records which it maintained supported the hours worked and provided extracts from the payroll records which presented a history of hours worked by the Complainant. The Respondent also submitted records of the annual leave and public holiday entitlements provided to the Complainant.

The Respondent submitted that the Complainant worked 5 days a week and where he worked an occasional extra day, he would have received a paid day in lieu. The Respondent therefore contended the Complainant was not underpaid, and his average working week allowing for rest breaks was a 36 hour week over the last six months of his employment, and during the last month. The Respondent maintained the Complainant was paid a set wage of €400 per week wage which included working on Sundays. The Respondent maintained that the Complainant was therefore paid on average €1.30 over the minimum wage.

CA-00033729-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

The Respondent submitted that the Complainant’s roster was changed to a day shift from the week commencing 21st April 2019. The Respondent maintained this shift had worked well for the Respondent and he was not regularly rostered to work a late shift followed by an early shift the next as submitted by the Complainant.  The Respondent accepted the Complainant was rostered for a late shift followed by an early shift on the week ending 12th May 2-019.  The person doing the payroll noticed this and advised the Director who immediately changed the roster the following week, and an incident of this nature did not occur again. The Director apologised to the Complainant for this error and assured him this would not happen again. The Respondent therefore acknowledge this only happened on one occasion.

CA-00033729-003 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent acknowledged that the Complainant had an unblemished record until an incident on 11th May 2019 regarding a void on the till. The matter of how a docket was voided by the Complainant was investigated by an independent person who is not a Director of the Company. The Respondent maintained that a breach of procedure was upheld, and a written warning was issued. The Respondent accepted that the Complainant was quite upset about this matter.

The Respondent maintained it was not aware of any of the other concerns raised by the Complainant until he submitted them to the WRC some months after he resigned. The Respondent contended the complaints were not raised with the Respondent or any other staff member in writing or verbally by the Complainant. The Respondent submitted that had the Complainant raised his complaints at the time they would have been fully investigated.

In response to the Complainant receiving WhatsApp messages, the Respondent submitted these are not a requirement of the company and are set up and administered by the employee’s themselves and any staff member added can leave at any time without consequence.   The Respondent contended that the Complainant was a proactive member of this group and had a lot of positive input into it.

The Respondent submitted that the Complainant was not left out of meetings or training. It stated a consultant general manager had been appointed for 3-month period from April to June 2019 to conduct training in all aspects of the business.  The Duty Managers including the Complainant was very much part of this training and he participated at Head of Department (HOD) meetings. Following that period there were no further HOD meetings. On that basis the Respondent denied that the Complainant had been ignored or left out of meetings.

The Respondent also maintained it never received complaints either verbally or written concerning a bullying allegation about the Complainant, and no warning issued to him regarding this matter.

The Respondent submitted that the Complainant had worked for the company December 2016, where he always worked hard, had great ideas, and was a very big part of the team.   It described the Complainant as obliging and professional, and a person who could be relied upon. The Respondent maintained that the Complainant handed in his notice on the 9th August 2019 just before he departed for Annual leave.  The Respondent therefore denied that it behaved in a manner that could have caused the Complainant to feel he had no option but to deem he was constructively dismissed. 

CA-00033729-004 Complaint under Section 8 of the Unfair Dismissals Act, 1977                                                                                                 

The complaint was dealt with under Complaint 003 above.

CA-00033729-005 Complaint under section 13 of the Industrial Relations Act, 1969

This dispute was withdrawn as it related to the complaints 003 and 004 of Unfair Dismissal above.

Findings and Conclusions:

CA-00033729-001 Complaint under section 24 of the National Minimum Wage Act, 2000

This is a complaint pursuant to the National Minimum Wage Act, 2000, as amended. The Complainant has asserted that he was not paid the minimum wage for the average of 45 hours he worked each week. The Respondent disputes the complaint and has stated that the Complainant’s average working week was 36 hours per week and provided time sheets for the period of employment.

Section 8 of the National Minimum Wage Act 2000, as amended, defines working hours “in relation to an employee in a pay reference period”.

Section 10 of the National Minimum Wage Act 2000, as amended, states that “An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month”.

Section 23 of the National Minimum Wage Act, as amended, provides that:

“(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12-month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of Schedule 1,

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.”

I note that on the Complainant’s form submitted to the WRC on the 13th January 2020, the Complainant stated he had requested a statement from his employer of his average rate of pay for the pay reference period and in answer to the question “Have you obtained a statement from your employer of your average hourly rate of pay for your pay reference period?” the Complainant wrote “no”.

At the hearing the Complainant did not submit any evidence to support his contention that he had sought a statement from the Respondent in the manner required under Section 23 of the Act.  Notwithstanding, during the hearing the Respondent did provide evidence and records that the Complainant worked an average 36 hour week and was therefore paid in excess of the minimum wage.

Section 24 of the National Minimum Wage Act, as amended, deals with disputes about entitlement to the minimum hourly rate of pay. It stipulates:

• (1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

• (2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i)  has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the [adjudication officer] may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be”

It is clear that Section 24 makes it mandatory for an employee to request of their employer a statement of their average hourly rate of pay in respect of a relevant pay reference period, in order to pursue a dispute about his/her entitlements under the Act. As I have not been furnished with the statement provided for by Section 23 of the Act which by virtue of Section 24 is mandatory, I find that I do not have jurisdiction to hear this complaint.

In Mansion House Ltd v Izquierdo MWD043, the Labour Court commented as follows in relation to the approach of the WRC Adjudicator: “For the sake of completeness the Court should point out that where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimants right to re-enter the same complaint having complied with the said section….”.        

CA-00033729-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

In accordance with Section 11 of the Organisation of Working Time Act 1997, an employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

The Complainant alleged the breach occurred on 12th May 2019, and he submitted his complaint on 13th January 2020, some eight months after the event.

In accordance with S41(6) of the Workplace Relations Act 2015, 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. No reasonable circumstances were submitted regarding the late submission of this complaint.

Accordingly, in accordance with S S41(8) of the Workplace Relations Act 2015 I find it is in not in order to entertain the complaint, and conclude this complaint is out of time.

CA-00033729-003 Complaint 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. The burden of proof, which now passes to the employee, is set at a high level.

Constructive dismissal cases are based on the entitlement test and the reasonableness test. Under the entitlement test 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 the test being applied in Western Excavating (ECC) Ltd V Sharp (1978) as was applied further in Murray V Rockabill Shellfish Ltd (2012) ELR 331 a significant breach of the Complainant’s contract should be evident. In effect the question is whether it was reasonable for the employee to terminate his contract on the basis of the employer’s behaviour.

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).

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 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.

In the within case, it is evident the Complainant was subject to a disciplinary process and where his appeal to that process was not upheld.  He submitted that following the disciplinary process he was subject to further criticism from management, to unfair and unfounded allegations of bullying against him, to unfair and unreasonable treatment by management including use of inappropriate language, to being excluded from meetings, and to receiving work related correspondence on WhatsApp afterhours. As a consequence, the Complainant submitted a letter of resignation to the Respondent on 9th August 2019 when he was due to take annual leave, and he did not return to work after that period.  During the hearing the Complainant acknowledged that he never formally raised these concerns with the Respondent.  In cross examination at the hearing the Complainant maintained that he had raised issues verbally with a manager, but that his mind was made up about leaving at that time, and he did not believe progressing matters formally would have changed anything. 

Based on the evidence provided I find that the Complainant did not seek to further address his concerns formally before terminating his employment, and by failing to do so he did not provide the Respondent with a reasonable opportunity to address whatever concerns he had.  The Complainant advised at the hearing that he did not follow up with the Respondent at the time as he had annual leave planned and it was his son’s birthday.  It was some months after, and only when the Complainant submitted his complaint to the WRC, that the Respondent became aware of the Complainant’s concerns.

Accordingly, I do not find the Complainant has demonstrated the conduct of the Respondent was of a nature that it no longer intended to be bound by one or more of the essential terms of the contract of employment. The Complainant never brought his concerns forward, and therefore the Respondent was never given the opportunity address these concerns.  Accordingly, I conclude no significant breach occurred, and I find the Respondent’s evidence creditable in that had it known about the Complainant’s concerns at the time it would have dealt with them in an appropriate manner.  I have no reason to doubt that the Complainant may have genuinely felt his direct managers were not treating him fairly and that he was aggrieved by his experiences. However, that in itself is not sufficient grounds to conclude a constructive dismissal has occurred.  There is a clear onus on an employee in such circumstances to seek a formal resolution of matters. It is only in circumstances where an employer fails to respond reasonably in addressing concerns can an employee then consider whether what has occurred could amount to a fundamental breach of contract or a fundamental break of trust in the employment relationship which renders the situation irredeemable. In the circumstances of this case I do not find these circumstances prevailed or that the Respondent acted unreasonably. I therefore do not uphold that the Complainant was unfairly dismissed.

CA-00033729-004 Complaint under Section 8 of the Unfair Dismissals Act, 1977                                                                                                 

This complaint was dealt with under 003 above.

CA-00033729-005 Complaint under section 13 of the Industrial Relations Act, 1969

This claim was withdrawn at the hearing as the dispute related to the Unfair Dismissal complaint under 003 and 004 above.

Decision:

CA-00033729-001 Complaint under section 24 of the National Minimum Wage Act, 2000

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons outlined above I do not have jurisdiction to hear this complaint.

CA-00033729-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons outlined above I find this complaint is out of time.          

CA-00033729-003 Complaint 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.

In order to prove constructive dismissal, the claimant must clearly show that there was no other alternative option open to him other than leave his employment. It must be demonstrated that all reasonable alternatives have been considered. In this case the Complainant has not demonstrated that he made a reasonable attempt to exhaust the internal procedures.

Therefore, the case of unfair dismissal is not upheld.      

CA-00033729-004 Complaint under Section 8 of the Unfair Dismissals Act, 1977                                                                                                 

Thus complaint was considered under complaint 003 above.

CA-00033729-005 Complaint under section 13 of the Industrial Relations Act, 1969

This claim was withdrawn at the hearing as the dispute related to the Unfair Dismissal complaint under 003 and 004 above.          

Dated:   March 26th 2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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