Complainant

Respondent

Parties

Cathy Orr

Helske Energy Save Limited

Representatives

Dave Curran, SIPTU

The respondent did not attend the hearing and did not send a representative.

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048393-001

30/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048393-002

30/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048393-003

30/01/2022

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

CA-00048393-004

30/01/2022

The respondent was engaged in marketing and selling a thermal insulation plastering product to the construction industry.  The company is in Slovakian ownership and was registered in Ireland in July 2018.  The financial statement to the year-end December 2020 shows that the company is controlled by Helske Global Limited, which was also registered in July 2018.

Before she started working as the marketing manager for the respondent in June 2020, the complainant worked for Gypsum Ireland and Saint Gobain, giving her specific experience in the marketing of plastering products.  Her job was to launch the respondent’s new product in the Irish market.  She was one of just two people employed by the company in Ireland, the other being the general manager.  At the hearing, the complainant outlined her duties which involved developing and maintaining a website, exhibiting the product at trade fairs, liaising with the manufacturing facility in Slovakia, arranging shipments and working with retail outlets to get the product stocked in builders’ merchants.    

In July 2021, the complainant didn’t get paid her wages.  Following her enquiries with the head office in Slovakia, she was paid her July wages on August 17th.  However, she got no wages at the end of August.  Despite her persistent enquiries, she got no explanation for this and she received no wages either in September, October and November.  She then discovered that no pension contributions were submitted to a pension fund on her behalf, although deductions were taken from her wages.  Further enquiries established that a pension scheme had not been set up for her, although this condition was specifically provided for in her contract of employment.  Despite her efforts and the efforts of her union officials to seek a response from someone at Helske Energy Save, she has had no response to her queries.  On December 16th 2021, she wrote to the company and informed them that she was resigning.  She got no response.

Under the Payment of Wages Act 1991, the complainant claims that she is entitled to wages not paid From August 1st until December 16th 2021.  She also claims that she is entitled to a refund of the sums deducted from her wages as personal pension contributions which were never remitted to a pension scheme.  Her third complaint under the Payment of Wages Act relates to the failure of the respondent to submit employers’ pension contributions to a pension scheme for her benefit, as set out in her contract of employment.

Under the Unfair Dismissals Act 1977, the complainant claims that her employment ended on December 16th 2021, when she was constructively dismissed, due to the failure of her employer to uphold her terms and conditions of employment.

These complaints were submitted to the WRC on January 30th 2022.  In accordance with section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate complaints regarding breaches of legislation that occurred in the six months before the complaints were submitted, from July 31st 2021 until January 30th 2022.  Section 41(8) provides that, for reasonable cause, I may grant an extension of the time limit up to 12 months.  An extension would permit consideration of complaints from January 31st 2021 until January 30th 2022.

The complainant’s employment ended on December 16th 2021, and therefore, her complaint under the Unfair Dismissals Act (CA-00048393-004) is within the six-month time limit.  Her complaint regarding the non-payment of her wages between August and December 2021 (CA-00048393-001) is also within the six-month time limit.

The two complaints under the Payment of Wages Act (CA-00048393-002 and CA-00048393-003) concerning the employer’s failure to remit pension contributions to a pension fund, span the period from when the complainant commenced employment on June 1st 2020 until July 2021, the last month for which she was paid.  The following is a summary of the breaches and the relevant time limits:

In advance of the hearing, Mr Curran requested an extension of the time limit to 12 months so that the breaches listed in row 2 of the table above can be investigated.  This has the effect of incorporating the contravention in row 1.  There is no provision for an investigation of breaches that occurred more than 12 months before a complaint is submitted to the WRC and therefore, the breaches in row 3 cannot be examined.

Explaining the reason for the delay, Mr Curran said that the complainant was not aware until September 2021 that a pension fund had not been set up on her behalf.  In that month, when she didn’t receive her wages for the second month running, she made enquiries about her pension fund.  An administrator in the respondent’s company then contacted Zurich Life and Pensions to set up a personal retirement savings account (PRSA) for the complainant.  in his submission, Mr Curran included a copy of correspondence dated September 15th 2021 to Zurich Life and Pensions from the administrator, Ms Veronika Urgeová in which Ms Urgeová sought assistance from Zurich to set up a pension scheme “in reverse” from June 1st 2020, claiming that “the management has forgotten to set up with Zurich for paying over her pension contributions.”  A member of Zurich’s Corporate PRSA support team replied the same day to confirm that it was not possible to start a pension fund at a previous date, but that all the funds deducted from the employee’s wages could be submitted as a single contribution from the actual start date.

On October 21st 2021, the complainant wrote to a director of the company, Ms Ivana Marková, urgently seeking an explanation about why her wages for August and September had not been paid, and also, seeking information regarding pension contributions deducted from her wages since June 2020.  Ms Marková replied saying, “I am sorry for the situation you are in, however, I am also sorry that I can not help you.”  She advised the complainant to contact another director, Mr Matej Rusnak.  On November 1st, 19th and 30th 2021, Mary McElligott and Dave Curran from SIPTU wrote to Mr Rusnak, seeking answers regarding the complainant’s wages and her pension contributions, but Mr Rusnak did not respond to any of the correspondence.  Mr Curran, sent a final email to Mr Rusnak and another director, Mr David Rossiter, on December 15th 2021, but there was no response to this email either.

It is apparent that, in September 2021, the complainant became aware for the first time that her employer had not remitted her contributions to a pension fund and that a fund had not been set up.  I find that, rather than submit a complaint to the WRC at that time, it was reasonable for the complainant, with the assistance of SIPTU, to attempt to resolve matters directly with her employer.  Despite the correspondence in October November and December 2021, her employer did not respond and, in the end, she resigned on December 16th.  Considering the request for an extension of the time limit, I rely on the test formulated by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) v Carroll[1], concerning the requirement for a complainant to have a good reason for a delay, and for this reason to have a “causal connection” to the delay.  I find that the complainant’s explanation was reasonable because it was reasonable for her to have some confidence that, with the assistance of her union, the problem regarding her pension contributions could be resolved.  I find that the complainant’s efforts to resolve matters and her employer’s failure to respond to those efforts caused the complainant to delay submitting these two complaints before the expiry of six months.  I find that this meets the test set out in the Cementation decision, and I have decided to grant an extension of the time limit for investigation of these complaints to 12 months.

CA-00048393-001:  Complaint Concerning Non-payment of Wages

In her evidence at the hearing, the complainant said that the first indication she got that things weren’t going well in the company was when her wages for July 2021 were not paid on time.  She submitted a copy of a payslip for that month, which indicates that her wages were transferred by credit transfer to her bank account on July 31st. She said that the money was eventually transferred on August 17th.  At the end of August, she got no wages.  She contacted her employer on numerous occasions by telephone and email.  One of the directors, Ms Ivana Markova, apologised to the complainant, and appeared to indicate that the matter would be resolved.  However, the complainant got no wages again in September.  When she resigned on December 16th 2021, the complainant said that the last time she received any wages was on August 17th 2021 in respect of the month of July 2021.  Efforts by the complainant to elicit an explanation from the company’s directors regarding the non-payment of her wages were unsuccessful.  On November 1st, 19th and 30th and, for the fourth time, on December 12th 2021, the complainant’s SIPTU representative wrote to the respondent.  Correspondence was sent by email, and by standard post, to the respondent’s registered office in Dublin and to the office of the Chief Executive Officer (CEO), Mr Matej Rusnak, in Slovakia.  In the letter of November 19th 2021, Mr Curran advised Mr Rusnak that the complainant may have no option but to resign and to claim that the company has terminated her contract as a result of a fundamental breach.  The employer did not reply.

It is the complainant’s case that her former employer failed to pay her wages for August, September, October, November and half of December 2021, resulting in a shortfall in wages of €4,062.50 gross for 4.5 months.  The total shortfall is €18,281.25.

In his submission, Mr Curran referred to the case at the Circuit Court of John Lawe v Irish County (Pig Meats) Limited[2] where the Court determined that,

“An employer’s fundamental obligation is to pay the agreed remuneration for the time of work during which the employee is prepared to work.”

Mr Curran also referred to the decision of the Labour Court in UCC v Finbarr Waldron[3] where the Court addressed the issue of wages that are “properly payable:

“The Act does not make provision for the determination of what wages are properly payable on an occasion on the basis of what the Court might think reasonable.  Rather, the Act requires the Court, having investigated the matter, to make a determination as regards what wages were properly payable on a given date by reference to objective criteria.”

CA-00048393-002:  Complaint Concerning Non-remittance of Personal Pension Contributions

When she discovered that her wages had not been paid in August and again, in September, the complainant made enquiries with an administrator in the company regarding her pension contributions.  The payslip that she submitted at the hearing for the month of July 2021 shows that a sum of €104.17 has been deducted for “Zurich.”  She said that the same amount was deducted for each month that she was employed, until she was paid her final wages in July 2021.  In September 2021, the complainant discovered that a PRSA had not been set up on her behalf.  She was advised to contact Mr Matej Rusnak, but, as we know, he did not reply to any correspondence. 

It is the complainant’s case that her former employer unlawfully deducted money from her wages, supposedly for remittance to a pension fund.  The total amount deducted in respect of the seven months from January to July 2021 is €729.19 (€104.17 x 7). 

CA-00048393-003:  Complaint Concerning Non-remittance of Employer’s Pension Contributions

A copy of the complainant’s contract of employment was submitted in evidence at the hearing.  Under the heading, “Salary and Expenses,” is a statement regarding the employer’s contribution to a pension:

“The Employer shall contribute 6 % of Employee’s salary to Pension Scheme defined by Employee.”

In September 2021, having been employed for 15 months, the complainant discovered that a pension scheme had not been set up on her behalf and, therefore, no employer’s contributions had been transferred.  When she contacted the administrator, Ms Veronika Urgeová, Ms Urgeová wrote the customer services department in Zurich Life and Pensions with the objective of resolving the employer’s failure to set up a fund:

“Dear Zurich,

Our employee, the employee of Helske Energy Save Ltd, Catherine Orr (client number xxx) was supposed to set up PRSA Pension with Zurich when she started working for our company.

The management has forgotten to set up with Zurich for paying over her pension contributions.

She started working on 1.6.2020, so since then, Helske Energy Save Ltd was supposed to pay over her pension contributions.  From 6/2020 until 8/2021 were were supposed to pay for her pension contributions the amount of 5312.55 EUR (a 354.17 EUR).

We need to make it right and set up the contributions.  Is it possible to set up in reverse, from 1.6.2020?

What would you need from our side to make it happen?

Thank you,

PhDr. Veronika Urgeová.”

A copy of an application form to set up a PRSA was submitted in evidence but despite these initial endeavours on the part of Ms Urgeová, funds were not transferred to a PRSA for the complainant.

It is the complainant’s position that her employer’s failure to remit 6% of her wages to a PRSA is an unlawful deduction from her wages.  The amount which has not been remitted is 6% of the complainant’s gross wages of €4,062.50, for seven months, a total of €1,706.35 (€243.75 x 7).

CA-00048393-001:  Complaint Concerning Non-payment of Wages

Clause 4 of the complainant’s contract of employment, under the heading of “Salary & Expenses,” provides as follows:

“4.1  The Employee’s salary is €50.000 gross per annum, subject to deductions of tax, USC and PRSI and any other deductions required by law or provided for under this Agreement.

4.2. The Employer shall contribute 6 % of Employee’s salary to Pension Scheme defined by Employee.

4.3. The Employee’s salary is payable monthly in arrears by way of bank transfer into the Employee’s nominated bank account on the last day of each month.

4.4. The Company shall reimburse (or procure the reimbursement of) all reasonable expenses wholly, properly and necessarily incurred by the Employee in the course of his/her Employment, subject to previous approval by the Company.”

From the evidence given by the complainant at the hearing of this complaint, and, from the documents she submitted to support that evidence, it is apparent that she received no wages from August 1st until December 16th 2021, when she resigned.  During this period, the complainant was not dismissed and she received no instructions to cease working.  In her evidence at the hearing, she said that she continued to work for the respondent, dealing with queries, cancelling trade shows and promotional events and communicating with customers.

The Relevant Law

Section 5(6) of the Payment of Wages Act 1991 addresses the circumstances when the wages that are properly payable to an employee are not paid:

(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.

As the wages that were properly payable to the complainant between August 1st and December 16th 2021 were not paid, in accordance with section 5(6) above, there has been an illegal deduction from her wages.

Conclusion

Considering the determination of the Labour Court in the Waldron decision which was cited by Mr Curran, I find that, based on the objective criteria presented to me, there has been a breach of section 5(6) of the Payment of Wages Act in respect of the respondent’s failure to pay the complainant the wages that were properly payable to her between August 1st and December 16th 2021.  I find that this failure was an illegal deduction from the complainant’s wages and that the amount not paid was €18,281.25.

CA-00048393-002:  Complaint Concerning Non-remittance of Personal Pension Contributions

I have examined the correspondence submitted by the complainant in support of her complaint that personal pension contributions were not remitted to a PRSA on her behalf.  From the correspondence sent to the complainant by the company’s administrator, Ms Urgeová, it is apparent that there was an agreement between the complainant and her employer that she would pay a personal contribution of 2.5% to a PRSA.  While this amount, €104.17, is indicated as having been deducted from her wages every month, no money was remitted to a PRSA.  This is extremely regrettable, particularly in view of the fact that, in September 2021, a customer services representative in Zurich Life and Pensions advised the respondent how the problem could be resolved.  The complainant’s case is that she is entitled to a refund of her personal pension contributions from January to July 2021, which amount to €729.19.  The deductions from the date of her commencement in June 2020 until December 2020 is outside the time limit within which I can investigate a complaint under the Payment of Wages Act.

The Relevant Law

Section 1 of the the Payment of Wages 1991 provides a definition of “wages:”

“[W]ages in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including -

(a)  any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment, or otherwise, and,

(b)  any sum payable to the employee upon the termination by the employer of his contract without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.

While sub-section (b)(ii) above excludes “any payment by way of a pension” from the definition of wages, I am satisfied that a contribution towards a pension is not a payment by way of pension.  I am fortified in this conclusion from the finding of the Labour Court on this specific matter in the appeal of Tourism Ireland v Farrelly[4], where it was held that,

“The Court finds that a pension deduction is not a payment by way of a pension within the meaning of the Act and accordingly finds no merit in the Respondent’s submission that the matter is outside the scope of the Court’s jurisdiction. The Court finds that the impugned deduction is a matter that falls to be dealt with under section 5 of the Act and is therefore properly before it for decision.”

Conclusion

I have considered the complainant’s evidence and the documents she submitted in support of her claim that her pension contributions were not transferred to a personal retirement savings account on her behalf.  I find that this failure was an illegal deduction from her wages and was in breach of section 5 of the Payment of Wages Act.  I find that the amount owing to the complainant in respect of the seven-month timeframe for which I can consider this complaint is €729.19.

CA-00048393-003:  Complaint Concerning Non-remittance of Employer’s Pension Contributions

I have noted at page 7 above that the complainant’s contract of employment included a provision that her employer would make a contribution of 6% of her gross wages to a PRSA.  We know that no employer’s contributions were made and that a PRSA was not opened on behalf of the complainant.  We also know from the decision of the Labour Court in Tourism Ireland v Fennelly, that pension contributions come within the definition of wages.

Conclusion

Considering this complaint, I find that it was a condition of the complainant’s employment that 6% of her gross wages would be paid in the form of an employer’s pension contribution.  I am satisfied that no such contributions were made and that this resulted in a shortfall, representing an illegal deduction from the complainant’s wages.  I find that the amount owing to the complainant in respect of the seven-month timeframe for which I can consider this complaint is €1,706.35.

CA-00048393-001:  Complaint Concerning Non-payment of Wages

I decide that this complaint is well-founded and that there has been an illegal deduction of €18,281.25 gross from the complainant’s wages.  In accordance with section 6 of the Payment of Wages Act 1991, as amended, I am required to direct the respondent to pay compensation as a net amount.  Taking account of the deductions from her gross wages from August 1st to December 16th 2021, I decide that the respondent is to pay the complainant compensation of €12,846.47.

CA-00048393-002:  Complaint Concerning Non-remittance of Personal Pension Contributions

I decide that this complaint is well-founded and that there has been an illegal deduction of €729.19 gross from the complainant’s wages.  As contributions to a pension scheme may be paid without a deduction of tax (up to certain limits which the complainant has not reached), I direct that the respondent pays this sum to the complainant as a gross amount.

CA-00048393-003:  Complaint Concerning Non-remittance of Employer’s Pension Contributions

I decide that this complaint is well-founded and that there has been an illegal deduction of €1,706.35 gross from the complainant’s wages.  As contributions to a pension scheme may be paid without a deduction of tax (up to certain limits which the complainant has not reached), I direct that the respondent pays this sum to the complainant as a gross amount.

Having commenced employment in June 2020, the complainant began to have concerns about her employment when she didn’t receive her wages in July 2021.  She was eventually paid for July on August 17th but received no wages after that date.  She said that she heard from a colleague that the respondent had run out of money.  Despite numerous phone calls and emails, she got no response to her queries about her wages and in September 2021, she heard that the rent had not been paid in the serviced offices where she and the general manager were based.  They began working from home from then on.  The complainant said that she continued to deal with customers’ queries.  The company had booked stands at the trade show of the Hardware Association of Ireland in the RDS and at the trade show of Architecture Ireland.  She cancelled the stands that the respondent had booked at both shows and she also cancelled advertising space in various publications.  She said that she was involved in “damage control” on behalf of the respondent, but she said that she felt that her own reputation was also at stake, because she was well-known and had been well-regarded in the construction industry.

Around the end of October 2021, the complainant said that her access to the company’s computer server was cut.  Through her union, she continued to seek answers to why she hadn’t been paid, and to her queries about her pension.  I note that, in the letters from Mary McElligott and Dave Curran in SIPTU, the respondent was on notice that the complainant would have to resign if she was not paid her wages and if the provisions of her contract of employment were not honoured.  The complainant had no communication from anyone in the company after the email she received from the director, Ivana Markova, on October 21st 2021.  On December 16th, she wrote to her employer to let them know that she was resigning.

In support of the complainant’s case, Mr Curran referred to two decisions of the Employment Appeals Tribunal (EAT).  In the case in 2009 of Fionnbarr Walsh v Atlantis Holiday Group Limited[5], the Tribunal reached a conclusion in the absence of any evidence being provided by the employer and its conclusion was as follows:

“Based on the uncontested evidence of the claimant, the Tribunal finds that the non-payment of wages entitles the claimant to terminate his contract of employment.  The respondent did not avail of the opportunity to meet with the claimant by not replying to the claimant’s email.”

In an EAT decision in 2013, Steven Lynch v Donegal Highland Radio Limited[6], the Tribunal investigated Mr Lynch’s claim that a significant reduction in his wages was grounds for his claim of constructive dismissal:

“The Tribunal is satisfied that the employer’s behaviour justified the claimant’s resigning and claiming constructive dismissal.  There was a fundamental breach of contract in allowing an accumulation of losses which led to his income being very significantly reduced without his agreement.  Accordingly, the claim under the Acts succeeds.”

Constructive Dismissal

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 (“the Act”), includes the concept of constructive dismissal:

“[D]ismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer[.]”

The burden of proof rests with the complainant to set out the facts that show that, because of the actions of her employer, she had no alternative but to resign.  Section 1 of the Act envisages two circumstances in which a resignation may be considered to be a constructive dismissal.  The first of these, referred to as “the contract test,” occurs when the employer’s conduct amounts to a repudiatory breach of the employee’s contract.  In such a circumstance, the employee would be entitled to resign her position.  In the 1978 decision of the United Kingdom Employment Tribunal in Western Excavating (ECC) Limited v Sharp[7], it was established that the test requires the employee to show that 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…”  If this can be established, “…then the employee is entitled to treat himself as discharged from any further performance.”

The second test, known as the “reasonableness test,” may be relied upon in combination with or as an alternative to the contract test.  This requires the employee to show that their employer acted so unreasonably that they could not be expected to tolerate it and they had to resign.  Reasonableness goes both ways and we know also that the employee is required to act reasonably, by using their employer’s grievance procedure to try to resolve the issues that are threatening to lead to resignation.

Examination of the Evidence

Every employee comes to work with a sense of trust that their wages will be paid.  It must be the case that the most obvious and serious breach of a contract of employment is the failure of an employer to pay the wages of his or her employee.  No employee wants to walk away from a job, and it is evident that the complainant did not want to do so either, making every effort, as she said to carry out a “damage control” exercise to preserve both her own and her employer’s reputation.  Apart from the non-payment of wages, the failure of the respondent to communicate with the complainant, to respond to her phone calls and emails, or to give her any indication of their intentions regarding her job, was upsetting, insulting and callous.   

Was it Reasonable for the Complainant to Resign?

Considering the two tests to determine if a dismissal is a constructive dismissal, I will consider the breach of contract argument in the first instance.  The employment contract is grounded on a premise that trust and confidence exists on both sides; the parties agree that they will preserve and maintain the interests of the other.  From the evidence of the complainant, it is apparent that, by December 2021, she had completely lost trust in her employer and that her contract had been repudiated.  In the decision of the Supreme Court in Berber v Dunne’s Stores[8], considering the issue of repudiation, Mr Justice Finnegan held that,

 “In determining whether there has been a breach of the implied term of mutual trust and confidence in employment contracts:

1  The test is objective.

2  The test requires that the conduct of both the employer and the employee be considered.

3  The conduct of the parties as a whole and the cumulative effect must be looked at.

4  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.”

I have considered the conduct of this employer in respect of their treatment of the complainant and it is my view that, apart the breach of her contract that occurred when she wasn’t paid her wages, she was effectively abandoned by her employer when they failed to communicate with her or to give her any explanation about why she wasn’t paid and what was happening to the company.

In Murray v Rockabill Shellfish Limited[9], the EAT addressed specifically the conduct of the employer:

“The Tribunal must consider whether because of the employer’s conduct, the claimant was entitled to terminate his contract or it was reasonable for him to do so.  An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one of more of the essential terms of the contract.  In the case of Brady v Newman UD330/1979, the Tribunal stated at pp 9-10:

“…an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him and so also must the employer behave.”

In respect of the complainant in this case, I find that the essential requirement for mutual trust and confidence was severed by her employer and that the complainant was justified in her decision to resign.

While I have concluded that the contract test has been met, I wish to briefly address the second limb of the burden of proof which requires the complainant to show that the conduct of her employer was so unreasonable that it couldn’t be tolerated any longer and it was reasonable for her to resign.  Many of the issues that resulted in the repudiation of the complainant’s contract, also go to the heart of the issue of reasonableness.  It was entirely unreasonable and unconscionable for the directors not to respond to the complainant’s request for information about her wages and about what their intention was regarding her job.  I find that the complainant’s efforts to deal with the circumstances in which she found herself were reasonable, making strenuous efforts to seek information and enlisting the help of her union when her own efforts came to nothing.  It is to the complainant’s credit that she tried to protect the reputation of the business, when there was no reciprocation on the part of her employer to protect her interests.     

Conclusion

Having examined the complainant’s evidence, and, in the absence of any rebuttal from the respondent, I find that the complainant’s contract was repudiated and that her treatment by the respondent was disrespectful and unlawful.  I am satisfied that the complainant has discharged the burden of proving that it was reasonable for her to resign from her employment and that the cause of her resignation was the manner in which she was treated by her employer.  I find therefore, that her dismissal was unfair.

I have decided that this complaint is well-founded.  Considering the amount to be awarded in redress, I note that the complainant commenced working in a new job on February 1st 2022.  She was therefore unemployed for almost seven weeks.  I decide therefore, that the respondent is to pay the complainant €6,730.78, equivalent to seven weeks’ gross pay.  As this award is in the form of loss of earnings, it is subject to the normal deductions of tax, PRSI and USC.

CA-00048393-001:   €12,846.47   Compensation for non-payment of wages

CA-00048393-002:   €729.19        Compensation for non-payment of personal pension contributions

CA-00048393-003:  €1,706.35      Compensation for non-payment of employer’s pension contributions

CA-00048393-004:  €6,730.78      Redress for unfair dismissal (subject to normal deductions)

Non-payment of wages, failure to remit pension contributions, constructive dismissal