ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035690
Parties:
| Complainant | Respondent |
Parties | Colette Burke | Xs Direct Insurance Brokers Ltd |
| Complainant | Respondent |
Anonymised Parties |
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Representatives |
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Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00046776-001 | 21/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00046776-002 | 21/10/2021 |
Date of Adjudication Hearing: 10/08/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that she was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that her Employer’s conduct or behaviour was such that she had no reasonable alternative other than to tender her resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that she was forced to terminate her Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate her employment (as defined in Section 1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the Employment Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.
Secondly, the employee may allege that he satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for her to resign. That is to say that the employer has conducted its affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving. The test is objective. The test requires that the conduct of both employer and employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. The conduct of the employer that is being 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.
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed from her place of employment (by reason of Constructive Dismissal) wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 21st of October 2021) issued within six months of her Constructive dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would always have regard for the seminal Employment Appeals Tribunal case of UD 474/1981 Margot Conway -v- Ulster Bank Limited wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”
Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
In addition to the above and in accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 21st of October 2021 was submitted within the time allowed.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public top attend this hearing. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is a serious and direct conflict in evidence between the parties to a complaint, that an oath or an affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the comprehensive submission outlined in the Workplace Relations Complaint Form. I was also provided with some supplemental documentary evidence in support of the Complainant’s case. The Complainant alleges that she was Unfairly dismissed and in particular that she was constructively dismissed by reason of the Employer’s conduct. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent did not attend. The Respondent company is in Receivership. Having contacted the appointed Receiver I was advised that the position of the appointed Receivers is neutral. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced by the Complainant in the course of the hearing. The evidence provided was unchallenged by the Respondent though I made inquiries in the usual way. The Complainant commenced her employment with the Respondent Insurance company in February of 2016. She operated as Claims Handler on a basic salary of €35,000.00 with a generous Bonus and Commission package thereafter. Within a month of the Covid pandemic the staff of the Respondent company were advised that their basic wage package was being reduced in line with the downturn in business. The Complainant says that she never gave her consent to this action and that her workload continued at the pre-pandemic level albeit she worked remotely. The Complainant queried these salary cuts at the time. As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act). The Act (at Section 41(8)) does allow for an exception where I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six-month period (after the contravention) was due to reasonable cause The Workplace Relations Complaint Form is dated the 21st of October 2021. In accordance with Statute, I am bound to consider Payment of Wages/unlawful deduction issues which arose within the six month period commencing the 22nd of April 2021 up to the 21st of October 2021. Unfortunately, the Complainant has raised no issues of unlawful deductions having been made during this period of time. According to the paperwork she provided, her issues of unlawful deduction commenced in April 2020 and ended in February 2021. In January 2021 the Chief Executive Officer indicated that the salary reduction would continue until June of 2021 and also suggested that a voluntary redundancy programme was being embarked upon and the Complainant expressed an interest in same. The Complainant was prepared to take her Redundancy and leave at the start of February 2021. At that time the Complainant was approached by JK the head of the Human Resource Department who suggested that there was an exciting opportunity for the Complainant as a Project Manager with a basic salary of €65,000.00. The Complainant engaged with the Chief Operations Officer (PW) who outlined the proposed three-year project she would undertake and the Complainant was very happy that the permanent role on offer was a good fit for her career and studies. The Complainant felt it was guaranteed employment for three years at a good salary. This was important in the context of this workplace which was clearly in a state of flux. The finances seemed precarious. People were taking redundancy and people were moving on. I note that the Complainant was forced to bring a complaint of sexual Harassment against another Manager working within the company at around about this time. This was brought against the Head of Claims to whom the Complainant had been previously answerable. I understand that the individual/perpetrator left the Company within a month of this complaint being made. The Complainant says she was persuaded by the Chief Executive Officer to pursue her complaint even after the departure, as that was the appropriate thing to do. The Complainant was not happy with how the investigation was conducted and it seemed to her that these matters were very personal and that the facts at issue had become universally known and shared within the workplace. This mis-handling seemed to stem form the fact that the HR department was losing staff and no-one was there long enough to take control. This was very upsetting for the Complainant. Not too long after, the Chief Operations Officer -PW- signalled that he was stepping back from the company which was the loss of a good friend and mentor to the Complainant. As PW had been the driving force behind her decision to stay on in the three-year Project Manager role, it was unclear to the Complainant where that left her. In fact, as the Complainant was out on pre-arranged study leave it appears that decisions were being taken about the Project without her knowledge. A Mr. SB contacted the Complainant about handing over information and details on the proposed Project. Mr. SB appeared to be running the project. The Complainant felt that she was now being excluded from managing the project and the project staff altogether. Arising out of that conversation, the Complainant felt compelled to hand in her Notice. The Chief Executive Officer contacted her and suggested there might be a position for the Complainant in the Underwriting Department, but this was an unworkable proposition. In the end the Complainant was paid her salary up to the end of July 2021 and received a Redundancy package thereafter. The Complainant was very upset at how her career came to an end with the Respondent Company for whom she had worked diligently for the previous five years. This workplace was clearly in a state of chaotic and terminal decline. I note that by February 2022 the Respondent Company was put into Receivership. The Complainant was very badly treated for the two months that she stayed on beyond the first time she had formed an intention to leave. She lost the three-year job security that had enticed her to stay on initially and the project assigned to her was taken from her by stealth or otherwise. The Complainant had no option other than to resign. I note that the complainant managed to get her Employer to re-instate the Redundancy package that she had previously negotiated and in awarding compensation I am taking into account a sum of money has already been paid through that avenue. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the Payment of Wages complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00046776-001 – The Complainant was Unfairly Dismissed by way of Constructive Dismissal) and I award compensation in the sum of €9,000.00 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00046776-002 – This complaint is not well founded and is out of time |
Dated: November 8th 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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