Complainant

Respondent

Parties

Juri  Zelkovski

K Tech Security

Representatives

 Aidan O’Mara

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044498-001

05/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00044498-002

05/06/2021

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

CA-00044498-003

05/06/2021

The complainant worked as a security guard from December 6th, 2014, until March 17th, 2021.

He says that the employer has failed to comply with Employment Regulation Orders and that during his entire employment he did not receive correct payment for overtime or for working on a Sunday.

He submitted details of what he claims was owed dating back to the commencement of his employment in 2014, totaling somewhat below €45,000.

As a result of these issues he says he was forced to resign from his job in circumstances that give rise to constructive dismissal.

The respondent is a family-owned security business employing some nine-two staff.

The complainant terminated his employment of his own volition and did not work his statutory notice period of four weeks. Likewise, he gave no indication of any grievance along the lines in his complaints to the Workplace Relations Commission.

In response the respondent says that most of the pay related claims fall outside the six-month time frame required by the legislation.

In relation to Sunday premium all the company's employees received a new composite rate of pay incorporating an allowance in consideration of their shift working arrangements to include Sunday working.

That provision of pay was agreed and signed off by all employees and an introductory once off payment of €500 was implemented on February 1st, 2020.

The complainant signed the document accepting this arrangement (and submitted in evidence).

In relation to his claim that he did not get the correct payment under the Employment Regulation Order the rate had been €11.65 per hour and the current rate of €12 was implemented on the February 1st, 2020 and therefore within the cognizable period.

The complainant was paid at this higher rate.

There are other matters affecting the industry at large related to the ERO’s which are before the Labour Court, but which are not relevant to the complaint.

Regarding his complaint of constructive dismissal, the complainant at no time invoked the company grievance procedure or raised any of the matters giving rise to his resignation from his employment at the company. There is no suggestion that he was the subject of any breach of his contract of employment and the respondent says that he resigned entirely of his own volition.

In such cases it is a matter for the complainant to establish that the company acted so unreasonably as to make continuation of his employment intolerable and that it was reasonable for him to resign in these circumstances. He has failed to do so.

Turning first to the complaint of constructive unfair dismissal the Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.

It is, after all, a breach of a legally binding contract.

When an employer wishes to terminate the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings.

The most common starting point for a complaint under the Act is when an employer has terminated the employment, and the criteria referred to above are then the key tests as to whether the dismissal has been a fair one.

On the other hand, it is relatively easy for an employee who wishes to terminate their employment to do so by simply giving notice of their intentions and then resigning. In most, if not all cases an action for breach of the employment contract is unlikely to arise, especially if notice obligations are observed.

A different situation arises when an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

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.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to open an examination of whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

Specifically, has it been at a level and of a nature that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

The EAT has made it clear in a series of decisions and followed by the Adjudication service that use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above) and that failure to do will, in general, be fatal to complaint

By way of example in Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268 it was held

‘The Tribunal finds that the claimant did not give her employer an opportunity to date with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her.

And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated;

For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However, for a period of six months she did not attempt to resolve the issue.

In Kirwan v Primark (UD 270/2003) the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures and her case failed.

Therefore, this is a critical aspect of any constructive dismissal case.

In the first place, the stated basis for leaving the employment was the alleged failure of the employer to pay ‘time and a half’ for hours worked in excess of forty-eight, and in respect of some issue related to breaks which was not explained.

This is the stuff of everyday workplace interaction entirely suitable to either an individual grievance process, or action by a trade union where the issue affects a larger group of workers.

The complainant offered no evidence of any effort to raise these matters before the termination of his employment and the respondent stated strongly that he did not do so. In particular, there is no indication of any grievance with the respondent in his resignation letter on March 18th.               

Accordingly, he has met none of the tests set out above. His complaint of constructive unfair dismissal is without justification.

In respect of the other matters, the complainant essentially sought compensation retrospective to the commencement of his employment.

Again, one wonders why he failed to raise any grievances in this regard at any time between their first occurrence in 2014 and his decision to resign in March 2021.

In any event the statute requires a complaint to have been made (in general) within six months of the alleged breach. The complaint was received by the WRC on June 5th, 2021, so the only valid reference period is between December 6th, 2020, and March 17th, 2021 (when he resigned).

As will be seen above, the complainant accepted to be part of an agreement in February 2020 that addressed and settled all previous claims under the Payment of ages Act and the organisation of Working Time Act, and it established the composite Sunday premium rate.

The complainant and his co-workers were paid a lump sum of €500.00 for their agreement to this arrangement. The respondent says it was compliant with the ERO rate (€11.65) from that same date.

However, the precise impact of this on the Sunday premium bears further scrutiny.

The difference in the hourly rate purporting to incorporate the Sunday premium is €0.35 and multiplied by forty hours is €14.00. This represents a premium on an eight-hour shift (€96) of just under 15% which is scarcely adequate.

A normal premium for Sunday working has been held by the Labour Court to be 25%. Unfortunately for the complainant he did not identify the number of Sundays worked in the cognisable period and I could not discern this from the information submitted and accordingly I make no award.

Accordingly, none of the complaints are well founded and do not succeed.

For the reasons set out above none of complaints CA-00044498-001. 002 or 003 is well-founded.

Time Limits. Constructive Dismissal