ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033633
Parties:
| Complainant | Respondent |
Parties | Sean Nulty | Board of Management of Loughegar National School |
Representatives | Seamus McNamee | Claire Bruton BL instructed by Mason Hayes & Curran |
Complaint(s):
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-00044488-001 | 03/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00044488-002 | 03/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00044488-003 | 03/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00044488-004 | 03/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00044488-005 | 03/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00044488-006 | 03/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00044488-007 | 03/06/2021 |
Date of Adjudication Hearing: 18/07/2022
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
I heard a considerable amount of evidence during the hearing and was provided with detailed submissions. The parties were very capably represented on both sides and all the witnesses were courteous to me and the hearing process.
The witnesses gave evidence on oath. I allowed the right to test the oral evidence presented by cross examination.
Much of this evidence was in conflict between the parties. I have taken time to review all the evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings. I have adopted the direction provided in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 at p.113 where O'Flaherty J. in the Supreme Court noted that minute analysis or reasons are not required to be given by administrative tribunals, but that the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.
Background:
The Complainant commenced his employment with the Respondent as a cleaner on 21 November 2014. He was paid to the National minimum wage. The Complainant resigned from his employment with the Respondent on 2 March 2021. On 12 March 2021 he wrote a letter to the Respondent setting out outstanding issues he had during and leading to the termination of his employment. |
Summary of Complainant’s Case:
CA-00044488-001 and CA-00044488-002 The Complainant's case is that his employer made an unlawful deduction from his wages. He submitted that his contract of employment set out that his hourly rate of pay was to be €11.09. He was never paid that rate despite raising a query with the Respondent on several occasions. The Complainant explained that he only received a payslip several years after the commencement of his employment. He confirmed he did receive a P60. He worked 25 hours per week. He spoke with the Chairman of the Board of Management in the summer of 2015. He was advised that the contract reference of €11.09 was a mistake. He was not happy with this and raised it again and the meeting of the 20 December 2020. For the hearing the Complainant had prepared a loss of earnings calculation with a start date 21 November 2014 and an end date of 9 March 2021. This went through each year, the number of hours he worked, the rate of pay received versus the contractual hourly rate of €11.09 and the earnings shortfall. The total calculation amounted to €11,477.13. As regards the cognisable period for bringing a claim within six months of his claim to the Workplace Relations Commission, the Complainant said he was not au fait with the statutory rules. Under cross examination, the Complainant agreed that at no stage during his employment did he receive more than the National Minimum wage applicable at the time. Any delays in receiving an increase in the National Minimum wage were resolved by December 2020. CA-00044488-003 The Complainant's case was that his started finishing times varied. This was by agreement with the previous School Principal. He explained that this suited him as he was farming part-time, and it suited his employer. The hours he was working were raised at the meeting of 21 December 2020. His employer suggested that there was a problem with the hours the Complainant was working. Under cross examination it was put to the Complainant that the contract he sought to rely on contained his work hours. CA-00044488-004, CA-00044488-005, CA-00044488-006 The Complainant case is that he was not supplied with his required terms of employment, grievance, or disciplinary procedure. All he received was a two-page letter dated 22 January 2015 which mainly consisted of the duties of a cleaner. He never received the revised contract with the correct minimum wage at the time of €9.09 on it. CA-00044488-007 This complaint was of constructive dismissal. The Complainant explained that he was called to a meeting with the Respondent in December 2021. At the meeting he was accused of not carrying out his work both physically and administratively. The Complainant submitted that he was being secretly monitored. The Complainant set out that he never received a grievance and disciplinary procedure. A first meeting took place on 14 August 2020. The cleaning schedule for the school was discussed and checklists were required to be completed and signed off daily. The Complainant did not receive a copy of the minutes of that meeting. The Complainant was then out on sick leave for seven weeks. He returned to work in November 2020. Under cross examination, he confirmed that the sick certificates did not indicate that he was out on leave due to stress. On his return, the Complainant explained that the cleaning checklists were not in operation. Under cross examination, the Complainant agreed that the checklists were required in the event of a school inspection by the Department of Education. The Complainant continued working without issue until he was called to a meeting on the 21 December 2020 at 6.10 PM. He was told by the Chairman of the Board of Management that the meeting was to review the implications of Covid 19 and a letter of concern from the school staff. The Complainant had not received a copy of this letter of complaint before the meeting. The Complainant explained that the meeting was more than a “review meeting”. Handwritten minutes of the meeting were presented to me. The issues raised at the meeting were the Complainant's hourly rate of pay, that the Complainant should have been entitled to a PUP payment, what cleaning was done before the September reopening, the new “assistant” cleaner and the additional cleaning hours per day, the Complainant's absence on sick leave, interaction with the other staff members, the amount of hours worked by the Complainant, purchase of a tumble dryer, the Covid requirements in terms of cleaning and paperwork. The agreed outcomes from the meeting were that the Complainant was to work five hours each day, complete tick lists, clean the classrooms only. There was to be a further review in six weeks. A tumble dryer was be purchased and the Complainant was paid outstanding monies from the last electoral election and for the increase in the minimum wage. The Complainant said that the comments from the teachers surprised him and upset him. He felt the comments were “petty enough” and referred to one classroom only. He said the meeting of the 21 December 2020 upset him and his Christmas break. He felt it was an ambush. The Complainant said he enjoyed his job up until that time. The Complainant stated that he felt that the review of his work should have been carried out by the School Principal and not by the same for individuals that he met at a similar meeting in August. He explained that his family saw that he was “not looking good again” referring to his earlier period of sick leave. The school was closed between January and March 2021. It was to reopen on 2 March 2021. The Complainant gave evidence that he came into the school on 1 March 2021 to have a conversation with the School Principal. He said he didn’t have much of a conversation with him. When I questioned him, he confirmed that he didn’t give an indication to the School Principal that he wasn’t happy or that he was going to resign. Under cross examination, the Complainant agreed that he hadn’t put to the Board of Management his grievances or issues with the way he was being treated. He confirmed that he prepared the letter of resignation because he didn’t have the backing of the school staff. He felt it was only “a matter of time” before the working relationship would end and he resigned. He said he had thought long and hard about what to do. He said that he saw no future for him with the school but to resign. The Complainant agreed that there was no mention of dismissal in any of his meetings with the School Principal or the Board of Management. The Complainant wrote in his letter of the 2 March 2021 that he was resigning for ‘personal reasons’. He hand delivered the letter to the home of the Chairman of the Board of Management. When asked by the Chairman the reason for his resignation, he said that his family felt he had “health issues”. The Complainant wrote to the Board of Management 10 days after his resignation. He enquired - Into progress into updating his wage rate since November 2014 - When he could expect payment of the outstanding money due to him - Why he was not provided with a copy of a grievance / disciplinary procedure during his employment - Why he was invited to attend a meeting / interview in December 2020 with a delegation of the Board of Management and not advised of his statutory right to be represented and advised that he should be so represented. This letter was responded to by the Chairperson of the Board of Management on the 18 March 2021. It set out - At all times he was paid the National Minimum wage - No outstanding monies were due - The Board of Management operated to the Disciplinary and Grievance procedures as provided for in the operations manual. - No disciplinary or grievance was addressed with it during his employment - The meeting of the 21 December 2020 was in relation to his work and was not a disciplinary meeting - SI 146 of 2000 did not apply as no matter of a disciplinary or grievance nature arose during his employment. |
Summary of Respondent’s Case:
CA-00044488-001 and CA-00044488-002 The Respondent's case is that the reference to €11.90 in the contract of employment was an error. It had been agreed by the Board of Management that the Complainant would receive the National Minimum wage is that was all it could afford to pay for the position of cleaner. In early 2015 the Chairman of the Board of Management, discovered the error in the contract and prepared an updated contract. He requested the then School Principal to provide the updated contract to the Complainant. The Chairman of the Board and Management himself had made it clear to the Complainant that if he wished to receive €11.09 per hour, the school could not continue to discharge his salary. The Complainant agreed that he would take an hourly rate of the applicable National Minimum Wage and continued to work in his position as a cleaner and receive the applicable salary for the position for the duration of his employment. The Respondent submitted that there was no deduction from his wages. The Complainant received the wages properly payable to him – being the National Minimum wage per hour – and there are no wages outstanding. CA-00044488-003 This complaint was not understood by the Respondent. It submitted that the Complainant's hours of work were consistent and were contained within his contract of employment between 2:30 PM and 7:30 PM Monday to Friday. CA-00044488-004 The Respondent denied that the Complainant did not receive the statement in writing of his terms and conditions of employment. CA-00044488-005 The Respondent submitted that there was no change to his terms and conditions of employment. CA-00044488-006 The Respondent submitted that the requirement to provide a statement of core terms did not apply to the Complainant as it only came into being in 2019. The Complainant's employment started in November 2014. CA-00044488-007 The Respondent denied there was any unfair dismissal of the Complainant. It submitted that he resigned from his employment without raising a grievance and that no constructive dismissal arose. It explained that during the Covid – 19 pandemic, the regulations and requirements of the Department of Education and Skills regarding the cleanliness and sanitisation of schools changed. The Complainant attended online training regarding the precise requirements of the Department of Education and Skills for schools to be reopened. In view of the new cleaning regime and regulations, an additional cleaner was engaged to clean all of the wet areas (bathrooms) of the school. This role was for three hours per day in addition to the Complainant’s role. The Complainant was required to clean the classrooms only. Prior to the school reopening professional cleaners were engaged to undertake a deep clean of the school. In December 2020, the Respondent received a letter of complaint from staff members regarding cleanliness in the school. The School Principal received numerous complaints from staff daily stating that the school was not in line with the required cleaning regulations. On 21 December 2020, Chairman of the Board of Management, the School Principal, and some of the Board members met with the Complainant in order to discuss the issues that had arisen. The Respondent submitted that this was not a disciplinary meeting. It was a meeting designed to ask the Complainant to improve his performance and to see what, if any additional equipment could be provided to him. It was agreed at the meeting that a new tumble dryer would be purchased for the school to assist the Complainant with his duties. At this meeting the Respondent stressed the necessity for cleanliness and sanitising within the school and asked the Complainant to fill out required paperwork at the end of each day. The Complainant agreed to improve his performance and to attend a review meeting in six weeks’ time. The school remained closed until 9 March 2021. On the 2 March 2021 the Chairman received hand-delivered letter from the Complainant stating that he was resigning from his employment ‘for personal reasons’. The Chairman was anxious to understand the reason for the resignation and the Complainant stated that it was for family reasons and his family thought his work as a cleaner was too much for his health. The Respondent acknowledge the resignation by the Complainant. On 12 March 2021 the Complainant sent a letter to the Respondent setting out certain issues with his employment and confirming his resignation. This was responded to on the 18 March 2021. The Respondent set out that if there were any issues, they could have been raised to the grievance procedure set out in the operations manual within the school. The Respondent submitted that there was no termination of employment rather the Complainant resigned from his employment without raising any issues are allowing the opportunity for the Respondent to consider any issues he had employment. |
Findings and Conclusions:
CA-00044488-001 I accept that any reference to an hourly payment in the document dated 27 January 2015 to €11.09 was an error. The Complainant was always paid the applicable National Minimum wage. The Complainant continued working from the commencement of his employment in receipt of payment of the National Minimum wage. I find there was no lawful deduction from his wages. CA-00044488-002 I accept that any reference to an hourly payment in the 2015 document to €11.09 was an error. The Complainant was always paid the applicable National Minimum wage. There was no lawful deduction from his wages. CA-00044488-003 I accept that the Complainant was notified of his starting and finishing times in advance. CA-00044488-004 I accept that the Complainant did not receive the statement in writing of his terms and conditions of employment. The document dated 27 January 2015 does not meet the requirements of Section 3 of the Terms of Employment (Information) Act 1994.
CA-00044488-005 I do not accept that there was a change to the Complainant’s terms and conditions of employment covered by Section 3 of the Terms of Employment (Information) Act 1994. CA-00044488-006 This requirement was introduced pursuant to the Employment (Miscellaneous Provisions) Act 2018. I find that the Complainant's employment started in November 2014 and the legislation was not in force at the time. CA-00044488-007 This is a case in which the Complainant claims that he was constructively dismissed.
Section 1 of the Unfair Dismissal Act 1977 as amended defines
“dismissal”, in relation to an employee, means—
(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, orit 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…. (emphasis added)
Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment. The conduct of the employer must amount to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” an employer must be “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 as discharged from any further performance”. The second test set out in Section 1 is the issue of reasonableness. This involves asking if the employer conducted his or her affairs in relation to the employee so unreasonably that the employee could not fairly be expected to put up with it any longer. The Complainant has submitted that his treatment by his Employer upset him. The meeting on the 21 December 2020 which he described as an ambush and a kangaroo court. The Complainant submitted that the employer’s conduct of procedures was not in compliance with SI 146 of 2000 and its behaviour was unreasonable that he was left with no alternative but to resign. Having considered all the evidence, I find that the Respondent undertook no action which could be regarded as unreasonable to the degree that the Complainant could be justified in terminating his employment.
I accept that he was called to a meeting without being given prior written notice of what was on the agenda. This type of meeting took place earlier in August of 2020 also. The Complainant submitted that this meeting should have been held with his line manager who was the School Principal. Instead, it was conducted with the Chairman of the Board of Directors, the School Principal and two members of the Board of Management. While I accept there was an element of overkill in the attendance at the meeting, it must be considered in the context that the School Principal was not the Complainant’s employer, and the members of the Board were not involved in the day to day running of the school. Also the issues raised by all of the school teaching body and related to Covid 19 procedures and protocol.
The Complainant should have been provided with a copy of the letter of complaint before the meeting. This did not happen.
Having read the minutes of the meeting and on the evidence presented to me, I accept the minutes reflect what took place at the meeting. I find that while it raised issues with the Complainants performance, the meeting was not a disciplinary meeting and there was no disciplinary outcome proposed. That is not to say that it may have not led to a disciplinary procedure. The Respondent described the meeting as a “review meeting”. The outcome of the meeting was that the Complainant:
Worked his contracted 5 hours per day. Clean the classrooms only. A separate cleaner was employed for wet areas Completed the required Covid 19 tick lists Address the letter of complaint from the school teaching body Meet in a further 6 weeks for a review
The Respondent agreed to purchase a tumble dryer for the school.
I appreciate that Covid -19 impacted on the Complainant’s workload and his method of working. He had greater freedom in his time keeping and role pre Covid – 19. However, the minutes of the meeting indicated that the Respondent was supportive to the Complainant in putting in place a work system that complied with its requirements to the other staff and users of the school and the Department of Education requirements in place at the time.
I cannot conclude that the conduct of the meeting or outcome was so unfair to the it undermined the root of the employment contract. In fact, it could be said to reinforced the employment relationship.
I note that the Complainant raised several grievances with the Respondent at the meeting of the 21 December 2020. However, I find he didn’t raise a grievance about this meeting.
In cases such as this I must examine the conduct of both parties. A Complainant who seeks to invoke the reasonableness test must also act reasonably by providing the Respondent with an opportunity to address whatever grievance he or she may have. The Complainant must demonstrate that he/she has pursued their grievance through the procedures laid down in the contract of employment or SI146 of 2000 before resigning (see Conway v Ulster Bank Limited UD 474/1981). The Complainant identifies that the Respondent has not complied with SI 146 of 2000. I note that he himself did not take steps to comply with it in circumstances where he said he was not familiar with the Respondents Grievance Procedure.
The Complainant submitted that “he saw no future, but to resign”. His representative described him as being a “marked person”. While I appreciate that nobody likes having their work criticised, the Respondent had a duty to act on the letter of complaint submitted by the teaching staff. The minutes of the meeting referred to a further review in 6 weeks. This did not take place as the school was closed. The Respondent described itself as being blindsided by the Complainant’s resignation. I note that the parties all work and live in a small community and are known to each other. The Complainant was a long-standing employee. I find that the failure of the Complainant to raise his grievances and give the Respondent and opportunity to deal with them (as they did in purchasing a tumble dryer, paying him the money due for election duties etc) was not a reasonable response to the situation he found himself in. |
Decision:
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.
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.
CA-00044488-001: Not well founded CA-00044488-002: Not well founded CA-00044488-003: Not well founded CA-00044488-004: Well founded. I award the Complainant €1,020.00 being 4 weeks gross pay as compensation. CA-00044488-005: Not well founded CA-00044488-006: Not well founded CA-00044488-007: Not well founded |
Dated: 27th October 2022
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Constructive dismissal. No contract. |