ADJ-00031002

Complainant

Respondent

Parties

David  Murphy

ATB Tyres  Limited

Representatives

  Self

Barry O’Mahony BL instructed by Ryan McAllister ARAG Legal Protection Ltd

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-00040701-001

30/10/2020

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

CA-00040701-002

30/10/2020

The complainant was employed as a tyre fitter with the respondent from 01 March 2007 to 24 September 2020.  He worked a 44-hour week and he was paid €477.25 gross per week.  The complainant claims he was paid less that the amount due to him and that he had to leave his job due to the conduct of his employer (constructive dismissal).  The complainant submitted complaints under the Payment of Wages Act, 1991 and the Unfair Dismissals Act, 1977.  The complaint form was received by the Workplace Relations Commission on 30 October 2020.

The respondent raised a preliminary issue concerning the complaint submitted under the Payment of Wages Act, 1991.  The respondent submits that as the complaint form was received by the Workplace Relations Commission on 30 October 2020 any alleged breach of the Act which is alleged to have occurred prior to 01 May 2020 is out of time.  The respondent also raised preliminary issues concerning claims about a pay cut in 2008 and annual leave entitlement.

The respondent stated that all monies owing to the complainant were paid in full.  The respondent asserts that the complainant was not dismissed, constructively or otherwise as he resigned his position.  Further, the complainant resigned prematurely having failed to engage with his employer regarding any issues which he believed to be present.

CA-00040701-001

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

The complainant stated the following on the complaint form submitted on 30 October 2020.  The business was closed from 28 March to 18 May 2020.  The closure arose from the Covid-19 health and safety restrictions in place at that time.  The complainant had not received a bonus payment for March 2020.  He stated he was not made aware, before it was stopped, that the payment would be stopped.

The complainant stated that he met with his boss in July 2020 to discuss the withholding of the bonus payment.  He stated it was agreed that he would be paid €450 for the March, May and June bonus and that the July and August bonus would be paid when the TWSS scheme was finished.  The complainant was satisfied with this arrangement.

The complainant received €450 in July 2020.  However, on 17 September 2020 the complainant stated he was paid €1442.28 gross, which was all his bonus payments backdated to March 2020.  From that gross sum the €450 paid in July 2020 was deducted and in addition, there was a tax deduction of €394.  The complainant states that all he received for his July and August bonus was €140.  Consequently, he believed he received less than the amount due to him.

On 07 October 2020 the complainant contacted the respondent and after a few phone calls he was told he was owed money.  Subsequently, a payment of €829.44 net was lodged to his account and a letter of explanation was sent to him.

CA-00040701-002

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

The complainant stated the following on the complaint form submitted on 30 October 2020.  He left his job on 24 September 2020 as he could not physically or mentally continue to serve a company that he had served very well for 15 years.  The complainant stated he was not being treated with the respect and fairness he deserved.  The issues leading up to the decision to leave included being given out to on the shop floor for wearing certain pants and being embarrassed by this, having to buy PPE, having to be on call all the time at short notice, working a 44-hour week and having his annual leave calculated on a 39-hour week, having to work overtime on a Saturday, a cut in pay in 2008 that was not restored, one pay rise six years earlier, doing all the work but being the least well paid member of staff.  The complaint also referred to being called at home when on a day off and being given annual leave when he had been on certified sick leave.

The complainant stated he had tried to talk to the owner numerous times to sort out all the issues.  However, the owner always went back on his word and the complainant felt let down.  In July 2020 he did meet with the owner and the complainant thought the issues of bonus payments and annual leave had been sorted.  But, when he received his payment on 17 September 2020, he felt let down again.  The recovery of the €450 paid in July and the tax deduction was the last straw and the complainant felt he had no option but to resign.

The complainant seeks compensation for unfair dismissal.

CA-00040701-001

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

Preliminary Issues:

The respondent raised three preliminary issues relating to the complaint presented under the Payment of Wages Act, 1991.

Payment of Wages

The respondent submitted that the adjudication officer did not have jurisdiction to hear a complaint submitted under the Payment of Wages Act, 1991 regarding any alleged breach of the Act which is alleged to have occurred prior to 01 May 2020 as the complaint is out of time.

The complainant stated on the complaint form that he did not receive a payment due to him on 14 March 2020.  The complaint submitted under the Payment of Wages Act, 1991 was received by the Workplace Relations Commission on 30 October 2020. 

The respondent contends that any breach of the Act which is alleged to have occurred prior to 01 May 2020 is out of time pursuant to section 41(6) of the Workplace Relations Act, 2015.  Section 41(6) states that an adjudication officer shall not entertain a complaint referred to him or her 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.  Further, the respondent submitted that no reasonable excuse for the delay in lodging the complaint existed and that the complainant offered no excuse at all about submitting the complaint out of time.  Therefore, no extension of time, as provided for in section 41(8) of the Workplace Relations Act, 2015, should be permitted.  The decision of the Labour Court in Cementation Skanska v Carroll DWT0338 was cited in support of this submission.

Annual Leave

The complainant in his submission claimed his annual leave was based on working a 39-hour week when he in fact worked a 44-hour week.  The respondent submits that in so far as the complainant claims that he has not been paid the correct rate of annual leave, he is not entitled to redress pursuant to the Payment of Wages Act, 1991 for such a complaint.  The respondent asserts that the complainant received the entirety of his contractual entitlements.  The respondent submits that the written complaint should make reference to both a complaint and a relevant Act.  The Labour Court decision in Gavin t/a Cloud 9 Creche v Dunleavy UDD1841 was cited in support of this submission.

Pay Cut

The respondent submits that a reference to a pay cut in 2008 is also out of time.  Further, the pay cut was agreed with the relevant employees in order to prevent redundancies and is not a deduction within the meaning of the Act.

In summary, the respondent submitted that the adjudication officer only has jurisdiction to adjudicate on alleged breaches of the Payment of Wages Act which occurred on or after 01 May 2020, but not on annual leave issues, or an agreed historical alteration regarding rates of pay.

Payment of Wages Complaint

The complainant worked in or around 44 hours per week and was paid €477.25 gross per week.  The gross payment included €75 per week which forms part of his basic salary. 

Regarding bonus payments, any outstanding amounts due and owing were paid to the complainant in or around October 2020, prior to the commencement of these proceedings.  Any bonus payments paid to the complainant are subject to taxation at the prevailing rate, and any such deductions are mandated by law.

The complainant, on the complaint form, acknowledged that he was paid €829.44 net in bonus payments in October 2020.  He further acknowledged, on the complaint form, that he received his bonus from March to September 2020.  This fully satisfied any payment owing to the complainant.  The respondent submits that this complaint is not well founded and must fail.

CA-00040701-002

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

The respondent denies that the complainant was constructively dismissed in that he had to leave his job due to the conduct of his employer or others at work as alleged or at all.

The complainant voluntarily and prematurely resigned his position without influence from the respondent, its servants or agents.  Moreover, the respondent engaged with the complainant thoroughly throughout his employment.

Addressing the issues complained about on the complaint form the respondent submitted the following:

PPE – the complainant was not required to provide his own PPE, and this was provided by the respondent.  On occasions the complaint attended for work in unsuitable clothing such as torn jeans and runners.  On such occasion he was asked to change when he returned home for lunch.

On Call Arrangement – The complainant was not forced to work 24 hours on call.  The complainant began using a company vehicle, without permission, to travel to and from work.  This vehicle was used for the respondent for its call out service.  In order to facilitate the complainant in the use of the vehicle he was asked to cover the call out service if he wished to borrow the company vehicle.  The complainant agreed to provide a weekend breakdown service on occasion.

Holiday Pay – The complainant met with the owner in July 2020 to discuss certain matters.  It was agreed that the complainant was to be allowed the benefit of 12.5 days holidays which he had taken in excess of his annual leave allowance prior to that date.

Saturday Work – The respondent company works on a 5.5-day week.  The complainant requested every Saturday off for personal reasons.  This could not be facilitated as a 5.5-day week (39 hours plus 5 hours overtime) applies to all the respondent’s employees.

Pay Rise – in 2009/10 the respondent had to introduce cost cutting measures to avoid redundancies.  These included reduced hours resulting in a reduction in wages.  This reduction was reversed in 2011.  In 2015 the complainant received a €75 per week increase in pay.

Work Duties – The complainant was employed as a service fitter.  The structure of the business was that he and another employee dealt with the retail side of the business and reported to a manager.  The manager was required to deal with the day to day running of the workshop and stock control.  The complainant took issue with this structure.

Sick Leave – The complainant was absent due to sickness for a week but on this occasion his absence was not certified by a doctor.  He was paid for the full week, but this was offset against his holiday entitlement.  The complainant did not raise this issue with the respondent and has not lodged a complaint with the WRC.  The respondent does not admit a breach relating to such a cause of action.

Contact During Absence – The respondent did not contact the complainant when he was on annual leave or when he had arranged to be absent from work. 

When the complainant was absent for two days or more without prior arrangement the respondent would try to contact him by phone.  Only when the complainant could not be contacted by phone did the respondent call to the complainant’s home to establish the reason for his absence.  The complainant was required to provide a medical certificate if he was absent due to illness.

Resignation – The owner was on leave in September 2020.  He received a WhatsApp message from the complainant on 17 September 2020.   The message stated that he intended to leave his employment on 24 September 2020.

When the owner returned to work from leave on 21 September 2020, he approached the complainant and asked him to come to the office to discuss any issues he had regarding his employment, and to offer him an opportunity to reconsider his resignation.  The complainant became aggressive, started shouting before throwing a tyre iron which landed just in front of the owner, without making contact with him.  The owner was in fear at this behaviour and did not engage further with the complainant.  Later the complainant acknowledged his aggressive behaviour and took issue with the fact he was required to pay tax on his bonus payment.  He suggested the accountant could “jiggle a few numbers on paper to make us all happy”.  The respondent could not in any circumstances facilitate a suggestion of evading the payment of tax.  The complaint worked out his notice and ended his employment on 24 September 2020.  He was not dismissed.

Legal Submission

The complainant voluntarily and prematurely resigned his position without influence from the respondent, its servants or agents.  The respondent cited the definition of dismissal as contained in the Act noting there are two tests which must be considered when assessing cases of alleged constructive dismissal.  They are the contract test and the reasonableness test. 

Citing the decision of the Labour Court in Paris Bakery & Pastry Ltd v Mrzljak DWT 68/2014 the respondent summarised the contract test as where:

“an employer behaves in a way that amounts to a repudiation of the contract of employment

and the reasonableness test arises if 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”.

The respondent submits that the complainant was unhappy about the taxation of his bonus payment.  Taxation is a matter beyond the control of the respondent and could not be a justification for resigning from his employment.

Referring to the requirement to work on Saturday the respondent submits this was a contractual requirement and that was explained to the complainant.  The complainant was never threatened with dismissal.

The respondent submits that it has demonstrated a most reasonable attitude toward the complainant.  The EAT decision in Conway v Ulster Bank Ltd UD 474/4/1981 was cited, in which it was held that the claimant did not act reasonably in resigning without having first “substantially utilised the grievance procedure to attempt to remedy her complaints”.  In this case the complainant was invited to meet with the owner to address any issues he had regarding his employment.  The complainant became aggressive and refused to attend the meeting.  Therefore, it is submitted that the complainant has not substantially utilised the grievance procedure available to him.  It follows therefore that the complainant is not entitled to claim constructive dismissal in the matter claimed or at all.

The respondent submits that there was no breach of contract that would entitle the complainant to repudiate his contract of employment.  Further, it is submitted that the complainant is disentitled to claim constructive dismissal in all the circumstances.  It is the respondent’s position that the complainant has not satisfied either element of the test for constructive dismissal and consequently the complaint must fail.

Redress

The respondent denies that the complainant has been unfairly dismissed, but in the event of a finding of unfair dismissal the following submission is made in relation to any redress that may be ordered.

The respondent cited section 7(2) of the Act and submits the complainant had no loss as he obtained alternative employment immediately after leaving his employment. 

Conclusion

The respondent submits that all monies owing to the complainant were paid in full.

The respondent submits that the complainant was not dismissed, constructively or otherwise.  The complainant resigned his position prematurely and having failed to engage with his employer regarding any issues which he believed to be present.

CA-00040701-001

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

Preliminary Issues

Pay

I have carefully considered the respondent’s submission and I accept that the date included on the complaint form (14/03/2020) is more than six months prior to the submission of the complaint.  I am satisfied that while I do not have jurisdiction to hear complaints relating to a contravention of the Act prior to the 01 May 2020, I do have jurisdiction to hear complaints related to alleged contraventions of the Act occurring between 01 May to 30 October 2020. 

The complainant in the narrative on the complaint form stated that he met with his boss in July 2020 about the withholding of his monthly bonus.  The respondent company was closed, due to Covid-19 health and safety restrictions, from 28 March to 18 May 2020.  The complainant states that he agreed with his boss in July 2020 that he would receive a payment of €450 for his March, May and June bonus.  The July and August bonus was to be paid after the TWSS scheme finished.  A payment of €450 was made in July 2020.  On 17 September 2020 a payment of €1442.28 gross was made to the complainant.  The complainant states that the €450 paid in July was deducted from his payment made on 17 September 2020. 

I am satisfied that the complaint submitted on 30 October 2020, as set out in the narrative on the complaint form, relates to the payments made in July and or September 2020.  I determine I have jurisdiction to hear the complaint about the payments made in July and or September 2020.

Annual Leave

I note on the complaint form the complainant’s reference to annual leave is contained in the narrative under the complaint submitted under the Unfair Dismissals Act, 1977.  It is included as one of the reasons why the complainant resigned from his employment.

I am satisfied that the complainant has not submitted a complaint relating to annual leave under the Payment of Wages Act, 1991.  The reference to annual leave entitlements arises in the context of the unfair dismissal complaint. 

Pay Cut

I note that the complainant refers to a pay cut in 2008 in the context of his unfair dismissal complaint.  I am satisfied that the complaint has not submitted a complaint relating to a pay cut in 2008 under the Payment of Wages Act, 1991.  Had the complainant submitted a complaint in October 2020 under the Payment of Wages Act, 1991 about a pay cut in 2008 I would not have jurisdiction to adjudicate on such a complaint.

Payment of Wages Complaint

The complainant submitted a complaint form to the Workplace Relations Commission on 30 October 2020 on which he stated his employer had not paid him or paid him less than the amount due to him.  Section 5 of the Act provides as follows:

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) …

(3) …

(4) …

(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.

Evidence

The Complainant

The complainant read a short submission and gave an oral account of the issue.  He stated that the business was closed from 28 March to 18 May 2020 due to the Covid restrictions.  He normally received a bonus payment each month and he was due a bonus for March.  He did not receive that payment and he stated that he was not told in advance that the bonus payment would be stopped. 

The complainant stated that he met with the owner in July 2020, to sort out the bonus issue and other issues.  He stated he was given €450 in July to cover March, May and June.  This payment was not an advance.  He understood that he would be paid the bonus for July and August in September 2020.  In September he was paid his bonus back dated to March.  He stated the respondent took back the €450 he had been paid in July and he had to pay €394 in tax.  The result was he was left with €140 bonus for July and August.  He stated that he told the owner in July that he should not lose out because of the TWSS payment.

In cross examination the complainant acknowledged that the bonus payment was based on sales and that the business had been closed for a period of 6/7 weeks when no performance bonus could be earned.  The complainant also acknowledged that on 17 September 2020 he was paid €1442.28 net and that tax deducted was €394.  The complainant agreed that he received a further payment of €829.44 net in October 2020 and that all wages and bonus payments were made before the end of October 2020.

The complainant stated the pay issue was a contributing element to his constructive dismissal.

The Accounting Officer

The respondent contracts out the administration and accounting function.  The accountant with responsibility for payroll, gave oral evidence and copies of pay slips were provided.

The accountant stated that the complaint was not working for 6 weeks as the business was closed due to the Covid health and safety restrictions.  The complainant was due a bonus payment for the month of March.  The respondent company was using the TWSS support system.  He stated that in July 2020 the complainant was given an advance of the amount estimated to be due.  The bonus payment was not made until September and the advance was recovered at that time.  Tax was deducted from the payment in the normal manner.  The complainant ended his employment on 24 September 2020 and at that time he was due further payment.  That payment was made in October 2020.  The payment was not made earlier as Revenue had switched from a cumulative to a week one basis and it was better to spread the tax to the next pay date.  The accountant confirmed that all monies owing to the complainant were paid and tax deducted by 15 October 2020.

The complainant asked questions in cross examination about the calculation of payment for annual leave.  The annual leave was 4 weeks per year.  The accountant was not party to the discussion between the complainant and the owner that took place in July 2020.

Conclusions

I have considered carefully the written submissions and oral testimony concerning this payment of wages complaint.  Having considered the information contained on the complaint form, the oral evidence and the pay slips provided to me I am satisfied that the complaint was paid all the wages properly payable to him by the respondent.  In my opinion the complainant was clearly under the impression that the money paid to him in July 2020 would not be recovered by the respondent.  I am satisfied that the respondent regarded the payment as an advance.  It is regrettable that there was no note or minute of the meeting held in July 2020 between the complainant and the owner that accurately recorded the details of the payment made at that date.

Finding

Based on the submissions and evidence presented I am satisfied that the complainant was paid all the wages properly payable to him by the respondent before he presented his complaint to the Workplace Relations Commission on 30 October 2020.  I find the complaint is not well founded.

CA-00040701-002

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

The complainant claims he had to leave his job due to the conduct of his employer and that in all the circumstances it was reasonable for him to do so.  He claims that due to the conduct of his employer he was unfairly dismissed.

The Act defines dismissal as follows:

“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, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Evidence

The complainant

The complainant on the complaint form and in his oral testimony described the issues that he had with his employer and the conduct of his employer that he found to be so unreasonable that he could not physically or mentally continue to work for the respondent.  The issues were as follows:

Holidays – The complainant claims he did not have enough holidays.  This was based on claim that as he worked a 44-hour week rather than a 39-hour week he was due more leave.  The complainant was ill for a week and although he was paid for the full week the time was taken from his holidays.

Pay – The complainant claimed the foreman was paid more than he was and when he had raised this it was never addressed.  There had been a pay cut in 2008 that was not reviewed.  He got one increase six years before when he fought hard for it and went as far as handing in his notice.

The complainant stated that he was stressed about the way the place was being run.  He believed he and one other employee were doing all the work and he, the complainant, was the person paid the least amount.

On Call – The complainant stated he was required to be on call 24-hours and he was guilt tripped by the owner when he had the company vehicle.  He stated he was required to do call out at short notice.

PPE – The complainant stated that gloves were not provided and had to be bought from the local farm shop.  Further, the complainant felt harassed about his clothes and was made to feel embarrassed on the shop floor.

Attempt to resolve the issues – The complainant stated he had tried to resolve issues with the owner numerous times, but he always went back on his word.  The business was closed from 28 March to 18 May 2020 due to Covid.  The complainant stated he was not told in advance that his bonus payment for March would be stopped.  He arranged a meeting with the owner in July 2020 to attempt to sort out the issue.  The complainant’s understanding at the end of the meeting was that he would be paid €450 to cover the March, May and June bonus.  He was paid €450 in July 2020, as agreed.  The July and August bonus would be paid after the TWSS finished and the holidays were agreed.

Matters changed on 17 September 2020 when the complainant was paid his bonus payments backdated to March 2020 and the payment of €450 made in July was deducted together with tax deducted of €394.  The complainant was of the opinion he was losing out so the respondent could benefit from the TWSS scheme.  The complainant stated that this was the final issue that broke him.  He thought the issues were resolved in July but this was another time the owner went back on his word.  He had to resign.

In cross examination the complainant confirmed he did receive a letter from the accountant but he said that letter did not explain how he would not qualify for the TWSS payment when he was in work.  The complainant rejected the suggestion that his problem was about paying tax on the bonus payment.  He stated the issue was not about tax but rather about the way the employer was dealing with the tax.  When in his text message he used the word ‘jiggle’ he was not saying he should not pay tax it was about how it was being dealt with.  The payment was not being withheld to benefit him in tax but so that the respondent could qualify for the TWSS scheme.

The complainant denied that the payment of €450 made in July 2020 was an advance that was to be recouped.  He stated it was not an advance as he was due payment for his March, May and June bonus.  The complainant accepted that all monies due to him were paid by October 2020.

In response to questions about PPE the complainant stated that the respondent would sometimes buy clothes and then make him pay for them, they were not provided by the employer.  Doing the type of work he did it was impossible not to get a tear in the clothes.  The complainant agreed that when he was asked to change his footwear it was because it was a health and safety issue.

Answering questions about the call out arrangement the complainant denied that he was only called out once every 7/8 weeks.  The complainant stated he was guilt tripped into doing frequent calls as he had the use of the company vehicle to get himself and one other employee to work.

To questions about annual leave the complainant stated he did not get credit for the correct amount of annual leave as it was based on a 39-hour week when in fact he worked a 44-hour week.  He stated that he was confused about annual leave as he was not given the correct amount.  He acknowledged that he had reached agreement with the owner about annual leave when they met in July 2020.

In response to questions about the requirement to work on Saturday morning the complainant stated that it did not pay him to work the overtime.  He acknowledged it had always been a requirement that the employees worked on Saturday morning.  He stated that the owner has told him if the business could work without him on a Saturday morning it could do without him for the rest of the week.

In response to questions about the reporting line in the business the complainant stated that the floor manager he was reporting to did not want to work.  He stated that he had reported this to the owner as business was being turned away.  He had booked family members in for services and the floor manager turned them away.  That was not good for business and was a reflection on him personally.  The complainant stated he was paid to work and he did a good job and always wanted to do a good job.

In response to questions about the events of 21 September 2020 the complainant denied he acted aggressively.  He stated that the owner approached him but he told him he did not want to talk as it would only waste more time.  However, he stated the owner kept on at him and lost patience and told him to F off and then threw the tyre iron on the floor away from him.  He denied he threw it at the owner.  The complainant confirmed that he had said that the owner was robbing staff.  Later that day when he went home, he realised the way he had spoken to the owner was wrong and he apologised to him in a text message.

The Owner

The owner stated that the complainant was one of the most versatile employees he had and that he had no issue with the work that he did for the respondent.

PPE – the owner stated that PPE was provided and was kept in the office available to all staff.  He said that he could not say that the complainant didn’t buy some of his own.  The complainant had his own views, and he was a bit reluctant to accept that there was a pandemic.

Clothes – The owner stated that he provided overalls for the complainant but he didn’t wear them.  Footwear is a health and safety issue and boots must be worn.  On occasions when the complainant turned up without the correct clothes he was asked to go home at lunchtime and change.

On Call – The owner stated that the complainant was asked to cover call outs if another employee wanted a weekend off.  The owner stated that he saw the complainant in town with his children in the company vehicle.  He reminded him that the vehicle was not for personal use but he put him on cover with the insurance company for domestic use.  He did not tell the complainant he did that.  The owner denied there was any guilt tripping as alleged by the complainant.

Holidays – The owner stated that the complainant claimed he was due extra holidays as he was working a 44-hour week.  When they met in July 2020 the complainant had already taken 12.5 days more than his allowance.  The owner had agreed to write those days off and to allow the complainant to accrue leave again from that date forward.

Saturday – The owner stated that the business operated 5.5 days a week.  All employees, other than reception staff, were required to work on Saturday morning.  He said that he told the complainant he was needed on Saturday and every other day.

Pay Cut – The owner recounted how in the recession of 2008/09 the business was faced with having to cut costs or make posts redundant.  He decided to reduce work hours and consequently pay.  They closed on Saturday mornings to reduce the working hours.  By 2015 business had improved and they could afford to pay the employees more.  The complainant was paid €75 extra per week from that time.

Reporting Structure – The owner stated that when he was not in the depot, he had to have someone acting as manager, someone who he could depend on to be there every day.  He said he told the complainant he could not depend on him to be there.  Some Mondays the complainant would not turn in to work and would not provide an explanation.  He would turn in the next day but not offer an explanation for his absence the previous day.  He was a good worker when he was in work.  The owner confirmed that the depot manager was on a higher rate of pay that the complainant.

Resignation – The owner stated that he was away on leave when he received a text message from the complainant saying he was resigning.  That was a Thursday and he was back in work the following Monday.  He expected that the complainant would approach him on Monday but by 2pm he had not done so.  The owner approached the complainant to discuss the any issue relating to his resignation.  The owner said the complainant turned on him, told him to F off as he was robbing him and the staff.  The complainant then threw a tyre iron down on the floor in the owner’s direction.  He returned to his office after that because he was fearful.  A customer who saw what had happened commented that no person should have to take such treatment from an employee.  The owner said he did not approach the complainant again.  The following Friday or Monday he received a call from the complainant’s new employer and he gave him a full reference.

In cross examination about the PPE the owner stated that if there were any PPE items were short, he expected the staff to come into the office and ask for replacements.  He stated that at one stage staff were going to the farm shop and getting items on the business account.  He received a bill for €1,500 and after that he had closed that account. 

The complainant commented to the owner that it was not correct to say the call out service only occurred every 6/8 weeks, as it was far more frequent than that.  Flexible arrangements about call out and working over lunchtime were discussed.  The complainant and the owner agreed that they had worked well together and there was give and take on both sides.

Responding to a statement from the complainant about working on Saturday the owner stated that the business operates 5.5 days each week and he had needed the complainant to be in work each day.  The complainant expressed his view that he was not being paid enough for working on Saturday.

Responding to a comment from the complainant about the depot manager the owner confirmed that the complainant had spoken with him to complain about the manager.  However, the owner was of the view that the manager was doing a good job for him and he could be relied upon to be at work.

The owner stated that in 2009 the business had to reduce costs or consider redundancies. The complainant’s hours of work were reduced and consequently he was earning less but his rate of pay was not reduced.  In 2015 the business was improving and the complainant was paid €75 per week extra.  That payment continued until he resigned.

Responding to questions from the adjudication officer the owner stated the annual leave provided was 20 days per calendar year.  There was no written grievance or disciplinary policy.

Conclusions

The statutory definition of dismissal in the Act, as quoted above, contains two elements or tests relating to the termination of the employment contract by the employee.  The first element, referred to as the contract test arises where an employee alleges that the employer has breached the terms of the contract of employment or no longer intends to be bound by the essential terms of the contract therefore entitling the employee to terminate the contract.  The second element, referred to as the reasonableness test arises where the employer has abided by the terms of the contract but the employee alleges that the employer has acted so unreasonably that he cannot be expected to put up with the conduct any longer.

In this case the complainant alleges that he had to resign due to the conduct of his employer, which in all the circumstances he considered to be unreasonable.  It is for the employee to show that the conduct of the employer was so unreasonable that he was left with no option but to resign.  I must consider both the conduct of the employer and the reasonableness of the employee in terminating his contract.

It is clear to me from the complaint, the written submissions and the oral testimony that the complainant had a number of grievances going back over recent years.  The complainant felt unappreciated for the work he did because he earned less than another employee whom he considered was not interested in the business and who turned work away.  The complainant had issues about the amount of annual leave he received and having to work on a Saturday.   He also had more recent issues related to the Covid pandemic such as the provision of PPE, clothing provision and bonus payments.  Where an employee has grievances with his employer it is essential that the he invokes the employer’s grievance procedure in an effort to resolve his grievance before resigning from his employment.

The respondent in this case had no written grievance policy or procedure for its employees. 

The business was closed from 28 March to 18 May 2020 due to the Government’s Covid health and safety restrictions.  I accept the complainant was not told when the business closed that his monthly bonus payment would be suspended.  Given the sudden nature of the close down it was likely that normal procedures were not followed.  When the business reopened it seems the matter was not addressed by the respondent until the complainant raised it in July 2020.

As there was no written policy or procedure for dealing with employee grievances or issues the complainant did what he had done in the past to resolve issues, he went directly to the owner in July 2020.  By the accounts of both parties the matters discussed at that meeting included the bonus payment and annual leave.  Both parties seemed to be satisfied that the bonus and the leave issues were resolved at that meeting.  However, there was no note of the meeting and no record of what was actually agreed.

I am satisfied that the complainant believed he would receive a payment of €450 for his bonus for March, May and June 2020 and that the bonus payment for July and August would be paid when the TWSS scheme ended.  He also believed he had drawn a line under the annual leave issue in that he had taken more that his permitted leave allowance by 12.5 days but these would not be recouped by the employer.  The complainant still though he was entitled to a higher annual leave allowance based on the number of hours he worked per week.  I note that the legislation provides that an employee who works more than 1,365 hours in a year is entitled to a maximum of 4 weeks’ annual leave, whether they are working 39 or 44 hours per week. 

I am satisfied that the respondent believed an advance of €450 was to be made to the complainant in July 2020 and that all the bonus payments would be paid through payroll, with the appropriate tax deducted, at a later date.  The owner agreed to write off the 12.5 days annual leave the complainant had taken in excess of his normal allowance.

I am satisfied that in the absence of a grievance policy or procedure the complainant had used the only method available to him to resolve his grievances.  He brought his grievances directly to the owner and met with him in July 2020l.  The problem is that while both parties believed they had reached agreement they each had a different understanding of what had been agreed.

Work proceeded as normal until September 2020.  My understanding of the work environment, based on the testimony of the complainant and the owner, is that there was a good deal of flexibility by both parties, in the normal daily work arrangements.  However, on 17 September 2020 the complainant received a payment of his bonus, backdated to March 2020.  He believed the agreement reached in July 2020 was now being ignored as he was not expecting to have to repay the €450, he had received in July.  In addition, he had a larger tax bill than expected.  The complainant gave one weeks’ notice that day and left his employment on 24 September 2020.  I am satisfied that the complainant took that decision because he had used the only method available to him to try to resolve his grievance about his bonus and annual leave and now that agreement was, in his view, being ignored.

The resignation notice was sent by WhatsApp to the owner but it did not explain the reason behind the resignation.  The owner was away on leave and did not reply.  When he returned to the office the following Monday, he expected the complainant would come to him with an explanation.  When that did not happen, he waited until the afternoon to approach the complainant.  I am satisfied that the complainant acted unreasonably in refusing to talk to the owner and in throwing a tyre iron on the ground in the owner’s direction.  The complainant acknowledged that he should not have acted in that way and sent an apology to the owner the following day.

I have considered carefully the complaint, the submissions and the oral testimony.  There is a high threshold for an employee to cross in order to succeed in a claim of constructive dismissal.  In this case I note the respondent did not have a written policy or procedure for dealing with employee grievances.  I note the complainant used the only method available to him in July 2020 to try to resolve his grievance about bonus and annual leave.  I note the agreement reached between the complainant and the owner in July 2020 was not recorded in writing and it later transpired that each party had a different understanding of what had been agreed.  I note the complainant received all the monies properly payable to him but some payments were made after he had resigned.  I note that the letter of explanation of the payment provided, dated 13.10.2020, is not a clear explanation of the complex TWSS and tax position.  I note the complainant’s unacceptable behaviour towards the owner on 21 September 2020.

The absence of a grievance policy or procedure is significant.  I am satisfied the complainant did try to resolve his grievances directly with the owner in July 2020.  The informality of the resolution and the lack of information to the complainant explaining exactly the proposed payment method resulted in the breakdown of the trust and confidence the complainant had in his employer.  It is clear from the resignation message to the owner that the complainant was frustrated by what he believed to be, the agreement of July 202 being ignored or set aside. 

I am satisfied that it was unreasonable for the respondent not to have a grievance policy and procedure in place.  The respondent employs over 20 people and proper policies and procedures should be in place.  I am satisfied that it was unreasonable of the respondent not to clearly set out the terms of the proposed bonus advance, recovery and payments to the complainant in a format that was transparent and easily understood following the July 2020 meeting.  I am satisfied that the complainant utilised the only method available to him to try to resolve his grievances with his employer.  I am satisfied the lack of information to the complainant explaining exactly the proposed payment method resulted in the breakdown of the trust and confidence the complainant had in his employer.  I am satisfied that the complainant has established that he had tried to resolve the issues directly with the respondent, that there was no other procedure or appeal available to him and in all the circumstances it was reasonable for him to resign.

Finding

For the reasons set out above I find the complainant has established that in all the circumstances it was reasonable for him to terminate his contract of employment.  As the complainant’s termination of his contract of employment was, in all the circumstances, reasonable I find it was a dismissal as defined in the Act.  I find the complainant was unfairly dismissed.

Redress

The complainant confirmed at the hearing that he took up new employment on 07 October 2020 and that he did not suffer a financial loss arising from his dismissal.  Section 7 of the Act provides as follows:

Redress for unfair dismissal.

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

As the complainant had no financial loss arising from the dismissal the maximum amount of compensation permitted under section 7(c) (ii) is 4 weeks’ remuneration.  I noted the complainant’s unreasonable behaviour to the owner on 21 September 2020.  Having regard to all the circumstances I consider it just and equitable to award the complainant compensation of €750. 

CA-00040701-001

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

Based on the submissions and evidence presented I am satisfied that the complainant was paid all the wages properly payable to him by the respondent before he presented his complaint to the Workplace Relations Commission on 30 October 2020.  I find the complaint is not well founded.

CA-00040701-002

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

For the reasons set out above I find the complainant has established that in all the circumstances it was reasonable for him to terminate his contract of employment.  As the complainant’s termination of his contract of employment was, in all the circumstances, reasonable I find it was a dismissal as defined in the Act.  I find the complainant was unfairly dismissed.

As the complainant had no financial loss arising from the dismissal the maximum amount of compensation permitted under section 7(c) (ii) is 4 weeks’ remuneration.  I noted the complainant’s unreasonable behaviour to the owner on 21 September 2020.  Having regard to all the circumstances I consider it just and equitable to award the complainant compensation in the amount of €750. 

Payment of Wages

Bonus Pay

Time Limit

Constructive Dismissal

Compensation – no financial loss