Worker

Employer

Anonymised Parties

A Cleaner

A Cleaning Company

Representatives

  N/A

Lydia Dodd, Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

11/06/2021

The Worker was employed as a Cleaner with the Employer from 25 February 2021 to 21 May 2021 and worked 9.75 hours per week. She stated that she had to resign from her employment because she was not paid the wages that she was properly due.

The Worker joined the Employer on 25 February 2021 as a Cleaner. She alleged that she had issues with her pay since the first pay day, namely 11 March 2021. She stated that when she noticed the initial error, she contacted her line manager who informed her that she would contact payroll on her behalf to seek resolution of same. When her line manager did not get a response from the payroll department, the Worker contacted them herself and although she was told it would be sorted out on 25 March 2021, it was not. She contacted payroll again as well as the tax office and was informed by the tax authorities that she was not being subjected to emergency tax.

She was informed again by payroll that the issue would be resolved, this time on 26 March 2021. She stated that she was also informed by payroll that the five hours covid cleaning she was working had ended although she had not been notified of this and continued to work these extra hours.

On 26 March 2021, she emailed the Regional Manager highlighting the issues she had and was informed that she had been paid all of the monies she was owed but that her banking details were incorrect. She stated that she was also informed that the covid cleaning hours were in fact to be continued which was at odds with what she had been told by payroll the day before.

On 8 April 2021, she emailed her line manager and asked for copies of all of her payslips from when she joined the Employer on 25 February 2021. On 9 April 2021 her line manager responded and stated that she had requested copies of these and had also made inquiries about her wages. At this point the Worker also requested a copy of the Employer’s grievance procedure because she considered it to be an ongoing issue which needed to be addressed. On 14 April 2021, she formally invoked the grievance procedure and set out all of the issues that she had with payroll as well as the difficulties she had in accessing her payslips. She received no response to this grievance however.

On 20 May 2021, she emailed the Contracts Manager because her wages were wrong again. He informed her that he would investigate and having done so stated that she had been paid correctly but that she should contact Revenue to sort her tax out. The Worker stated that she had contacted Revenue but that they had highlighted that she should not be paying any tax due to her earnings.

Given the Employer’s failure to resolve the difficulties with her pay and respond to her grievance, the Worker stated that she had no choice but to resign from her employment on 21 May 2021.

The Employer stated the onus of proof rests with the Worker who is required to make a clear statement setting out the details of the complaint. The Employer stated that no such statement had been made in advance of the hearing.

When presented with the Worker’s evidence on the day of the hearing, the Employer presented evidence to show that she was paid her wages in full and that she had not exhausted the grievance procedure which had been provided to her. The Employer also explained that the line manager to whom the Worker had sent her grievance in the first instance had left their employment which explained the absence of a response from her.

I have carefully considered the written and oral submissions made by the parties in relation to this dispute.

On the basis that she had less than the 12 months service, required under Section 2 (1) (a) of the Unfair Dismissals Act, in order to avail of the protections provided by that Act, the Worker referred this dispute to the Workplace Relations Commission under the Industrial Relations Acts and is, in essence, a claim of constructive dismissal.

Section 13 Industrial Relations Acts, as amended, states as follows:

13.—

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to an [Adjudication Officer].

(3) (a) Subject to the provisions of this section, an [Adjudication Officer] shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute,

Therefore, in line with the above, I will proceed to investigate the Complainant’s dispute and make a recommendation, if appropriate or necessary, arising from that investigation.

Firstly, I am satisfied that this case may be informed by the Unfair Dismissals Acts in respect of constructive dismissal cases. I also note that significant legal precedent exists which establishes that, in a constructive dismissal claim, I must examine whether there has been a breach of either the contract or the reasonableness tests.

Contract Test

Firstly, in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee is entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 as follows:

“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 discharged from any further performance.”

In plain English, this means that where an employer makes a fundamental breach of an essential term of the contract of employment, the employee may consider him or herself to be constructively dismissed.

Reasonableness Test

The reasonableness test requires that a worker must satisfactorily demonstrate that the Employer behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. This was confirmed in the case of Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84), where it is stated that: “the test for the Complainant is whether it was reasonable for him to terminate his contract”.  It is also well established that a Worker must behave reasonably and is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve his or her grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated:  “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers.”.

I find firstly that the Employer did not breach the contract test in the instant case because I am satisfied that all of the wages due were paid to the Worker.  

I must now therefore examine the reasonableness of the actions of both the Complainant and the Employer in line with the reasonableness test set out above. In assessing this, I note the Complainant’s assertion that she had to leave her employment because of the failure of the Employer to address queries that she had with regard to her pay to her satisfaction and in a timely manner. In the context of the various authorities as set out above, it is also clear that where a worker decides to resign her employment however, she must invoke and exhaust the grievance procedure where she believes the behaviour of the Employer is unreasonable, if she wants to succeed in a complaint for constructive dismissal.

While I note that on 14 April 2021 the Complainant invoked stage 1 of the Employer’s grievance procedure which states that “The employee should put their grievance or complaint in writing to their Manager/Supervisor”, she did not instigate stage 2 of the procedure which states that “if the employee considers that the grievance or complaint has been satisfactorily resolved, then the employee should write to a more senior manager”. While the Worker stated in her evidence that the Employer did not respond to her complaint of 14 April 2021, it is clear from the Employer’s grievance procedure, as outlined above and which the Complainant received, that she should have then proceeded to invoke stage 2 and I find that her failure to do was unreasonable.

I cannot make a recommendation that is favourable to the Worker for the reasons set out above.