Complainant

Respondent

Parties

Martin  Corboy

City Colleges Education Ltd.

Representatives

  Self-represented

Mr. Seamus Collins, B.L, instructed by Ormonde Solicitors

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-00048149-001

14/01/2022

The complainant submits that he was constructively dismissed on 13/1/2022.

The complainant commenced employment with the respondent as a lecturer in Accountancy Studies in February 2016.

He resigned on 13/1/2022.

He earned €100 an hour. He worked on average 15-18 hours a week.

He submitted his complaint to the WRC on 14/1/2022.

Incorrect respondent.

The respondent states that no such entity as that impleaded exists. The correct respondent is City Colleges Education Ltd.

The respondent rejects the complainant’s request to amend the tile of the respondent to reflect its correct legal title but accepts that the Adjudicator has a role in accepting or rejecting said request.

Incorrect respondent.

The complainant asks that the employer’s name be amended to reflect its correct legal title.

Incorrectly impleaded respondent.

The matter of correcting the respondent’s name was addressed in Auto Direct Ltd v Vasile Mateui, DWT1922. While the circumstances of the instant case differ somewhat from those pertaining in the appeal before the Labour Court what they have in common are the following elements which were set out in that decision:

“The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter……. In arriving at this conclusion, the Court is also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held

:“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)”….

 “In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

The Labour Court continued

“Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response “as envisaged in O’Higgins. Accordingly, the Court considers the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd’.

in the instant case, the respondent has been on notice of the complaint, provided with all relevant documentation and will suffer no prejudice or injustice by my acceptance of the complainant’s request to change the name.

 For the reasons cited above, I agree to correct the name of the respondent to reflect its correct legal title.

The complainant contends that the unilateral alteration of his terms and conditions of employment, specifically an 83% reduction in his wages, a reduction in his teaching hours from 15- 5 per week and the unavailability of work compelled him to submit his resignation on the 13/1/2022.

The complainant took up employment with the respondent on 1/1/2016 as a lecturer in Accountancy Studies, preparing students for the Association of Chartered and Certified Accountants examinations, the required professional qualification for Accountants.

Evidence of complainant given under affirmation

The complainant has no written contract, but he was advised upon taking up employment by the then MD of the college in 2016, that the hourly rate would be €100, and that his hours would be between 15-18 per week.  From 2016 –March 2020, the complainant worked an average of 15-18 hours a week.

As a result of the Covid-19 Pandemic, classes which he had taught previously were suspended indefinitely in March 2020.

He received an email from the respondent on 10/9/2020 advising him that the modules which he had taught were to be reduced from three to one and his rate was to be reduced from €100 to €50 an hour. He did not respond directly to the CEO as he had already advised a Senior Lecturer that he could not accept these revised terms when the latter presented them to him.

He wrote to the CEO on 23/9/2020 seeking redundancy payments. The respondent replied on 28/9/2020, acknowledged the complainant’s rejection of his offer of 10/9/2020. No alternatives were provided to the complainant as to how his salary or the number of modules could be restored to its existing pre – Covid levels. But as against that the prospect of returning to teaching was held out to the complainant. The CEO advised him that it had been a lay off; a redundancy did not exist as the respondent hoped to have work for the complainant when the economy improved. He never had any discussions with the respondent about a lay off.

The respondent advised the complainant to communicate henceforth with the respondent’s solicitors.

The September 2020 pay, and hours proposals amounted to a reduction of 83% in his income. Classes which he had given prior to the Pandemic were not advertised and were no longer available. This seemed like a straightforward redundancy to the complainant.

 There was no way he could accept the revised terms in September 2020.

He duly lodged a claim with the WRC seeking redundancy payments on 9/10/2020. A decision issued numbered, ADJ -00030495- of the 5/10/21, acknowledging that the complainant was an employee- a matter hitherto contested by the respondent who argued that he was an independent contractor. The Adjudicator rejected his claim for redundancy payments finding that he was still an employee as he had not resigned and had not been dismissed. On the 17/1/2022, the complainant appealed this decision to the Labour Court as did the respondent. His appeal to the Labour Court was deemed to be out of time. This Determination, RPD226 issued on the 22/4/2022.

The complainant contends that he had no choice but to submit his resignation on 13/1/2022.

The Adjudicator in ADJ -000 30495 had determined that he was an employee and not employed on a contract for services as contended by the respondent.  He ruled that the complainant should be awarded 52.48 hours of annual leave, in respect of his complaint under the Organisation of Working Time act, 1997, plus €100 in respect of his complaint under the Terms of Employment (Information) Act, 1994. The respondent ignored these awards.

The respondent failed to engage with him as to future work.

He had not been provided with any Staff Handbook.

He was not offered a grievance procedure through which he could process his grievance about the unilateral change in his terms and conditions of employment.

He had no contact from the respondent from March 2020 until the respondent notified him in   September 2020 of an 83% reduction in earnings.

Between the 5/10/21 and the 14/1/2022, when he resigned, the respondent failed to provide him with any teaching hours. The respondent failed to engage in any way with the complainant.

Time limits compelled the complainant to submit a complaint of constructive dismissal on the 13/1/2022, even though the Labour Court appeal was in train.

When he first lodged the claim for redundancy payments in October 2020, he was more persuaded at that point that it was redundancy situation.

The respondent stated at the Labour Court hearing into his appeal that the disciplinary procedure did not apply.

Mitigation.

He was on PUP until May 2021. He Earned €7250 from January to May 2021.

He earned €10,409 September – December 2021

From January   2022 to December 2022, he earned €28,493,

From January – March 2023, he earned €7,500.

Cross examination of the complainant.

He confirmed that he sought redundancy. He confirmed that his claim for a redundancy payment was received by the WRC on the 9/10/2020.

He confirmed that he sent no mails nor made any telephone calls to the CEO.

He stated that there was no grievance procedure in place.

 Concerning the staff handbook, the complainant states that he may not have looked at it before April 2022, when he was preparing his case.

The respondent’s barrister asked him to address his email of January 2020 when he stated, “that he was not an employee”, a statement which contradicts his evidence that he was always an employee. The complainant responded that the statement was made out of annoyance.

The complainant stated that he never received a staff handbook.

 He received his payslips by email.

The complainant stated that he did not know if all staff were asked to take a pay cut.

Summing up

The management asked him to communicate with them through their solicitors.

The respondent failed to implement the terms of ADJ -000 30495.

He was given no offer of work after that point, 5/10/2021 The respondent did not engage with him.

It was unreasonable to expect him to accept new, inferior terms without the complainant’s agreement.

He asks the Adjudicator to uphold his complaint.

The respondent set out his case as per his written submission.

The respondent contends that this complaint of constructive dismissal fails on the reasonableness test. The employee did not behave reasonably.

An Abuse of Process.

The respondent contends that this complaint represents an abuse of process as he has already used the same set of facts to mount a complaint to the WRC for redundancy payments. He did not succeed in that claim so has resubmitted the complaint under a different statute.

The respondent maintains that the complainant’s staggering of his claims amounts to an abuse of process.

The complainant first lodged a complaint for redundancy payments, plus holiday entitlements in October 2020.The redundancy element of the complaint was not upheld. He then appealed it to the Labour Court on 17/1/2022 as did the respondent. On 22/4/2022 the Labour Court rejected his appeal. He used the same set of facts to mount a complaint of constructive dismissal which he lodged on 13/1/2022, thus describing two different dates of dismissal; the first date is 23/9/2020, the second date is 13/1/2022.

This is a vexatious complaint. The respondent’s barrister relies on the High Court decision of Behan v Mc Ginley (2011) 1 I.R. 47, where Irvine J, relied on a decision of the Ontario High Court in Re Lang Michener and Fabian (1987)37 D.L.R 94 (4th) 685, which held that proceedings can be considered to be vexatious when

“The issue in dispute are matters which h have already been determined by a court of competent jurisdiction, i.e., they are res judicata,

Where it is obvious that no action can succeed, or no reasonable person can expect to obtain relief.

where the action is for an improper purpose including oppression and harassment of other parties, as opposed to asserting legitimate legal rights,

where issues sought to be litigated tend to be rolled forward into subsequent actions and supplemented.”

This reasoning was followed in Vantive Holdings (2009) IESC 69, where Denham J held the following in respect of the finality of litigation, at para. 39:

“There is a constitutional right of access to the courts. This encompasses a right to apply to court, a right to legal representation, a right to a hearing, and a right to a decision with reasons. Thereafter there is a right to an appeal. There are exceptional circumstances, in the interests of justice, when a matter may be revisited. But the fundamental principle is that it is in the public interest and for the common good that there should be finality in litigation. An aspect of this principle is that parties should not be exposed to multiple litigation and should have closure on an issue. Also, there is the public interest that the limited resources of the courts should be used justly and with economy.”

The complainant considered that he had a claim for a redundancy payment or constructive dismissal back in September 2020. Rather than electing between the two contrasting claims at that point, as was required, he pursued both claims in a staggered fashion: first, the redundancy payment claim, then, following the failure of that claim, the present constructive dismissal claim.

The complainant’s claim is vexatious and should be dismissed pursuant to section 42 of the Workplace Relations Act, 2015.

Should the Adjudicator fail to dismiss as per section 42 of the Workplace Relations Act 2015, a complaint of constructive dismissal cannot succeed as there was no repudiatory breach by the respondent of the complainant’s contract of employment. Additionally, the complaint of constructive dismissal fails on the reasonableness test. The employee did not behave reasonably.

 The respondent’s business primarily entailed running face-to-face academic courses. When the Covid-19 pandemic emerged in March 2020, the business of the respondent came to a complete stop. The complainant was issued a letter, dated 30 April 2020, advising that he was laid-off effective from 5 April 2020, due to the Covid-19 pandemic. This letter dated 30 April 2020 ensured that the Claimant could avail of the PUP.

Evidence of the CEO given under affirmation.

The witness is the CEO and founder of City College which he set up in 2011. There are approximately 300 staff on the payroll.

In March 2020 with the onset of the Pandemic he had to consider the future of the College. All face-to-face classes shut down. The witness communicated with all staff via email.

In September 2020 he informed staff that teaching would be done online at the rate of €50 an hour.

On 23 /9/2020 the complainant claimed redundancy payments also saying that he was not an employee.

The vast majority of staff were employees with a smaller number including the complainant being on a contract for service or so thought the witness at that time.

On the 14/9/2020, the complainant asked the witness to supply him with a character reference in order for him to register with the Teaching Council as a preliminary to gaining employment as a post- primary teacher. The witness thought that the complainant had made a decision to change direction, so he thought the request for a redundancy payment was opportunistic.

Contrary to what the complainant stated, the staff handbook was posted on the payroll website. The respondent’s HR provider placed payslips and Handbook on their website.

He offered the complainant no work after September 2020, though the complainant would have known from the Head of Accountancy Studies that work was there. The witness never received any request from the Head of Accountancy Studies that the complainant was enquiring about work.

The witness cannot say for certain that the complainant would have accessed the handbook before January 2022.

Availability of the Staff Handbook.

Concerning the accessibility of the Staff Handbook, the witness stated that he can prove that the complainant accessed the handbook as the system records entries. The complainant last accessed it on 6/4/2022 at 3.50 pm. The respondent sent an email to all staff in 2019 stating that the handbook had been updated and was available online.

The complainant never asked the respondent about the Handbook

The complainant did not seem very engaged in trying to turn things around and make a greater success of the Accountancy Studies department. The only time he engaged with the witness was to offer his resignation in January 2022. Accountancy Studies unlike Law continued to struggle to attract student numbers even before Covid -19 arrived in March 2020.

Teaching hours can fluctuate depending on demand. The complainant’s hours increased from first year to second year when he took on an extra subject. Originally, the college had two student intakes per year for the Association of Chartered Certified Accountants examinations, but later took in four intakes. An increase in classes would increase the college’s teaching costs.

The reason he issued the proposal for reduced hours and rates in September 2020 was the uncertainty generated by Covid -19. There was a reduced demand for Accountancy Studies whereas the demand increased in some disciplines like law. Accountancy courses continued to struggle and have never really recovered. They were struggling before Covid-19.

The witness texted the complainant about paying him the awards contained in ADJ -00030495; he asked the complainant to meet him to sort the matter out. The complainant replied by text to state that he would appeal ADJ -00030495.He told the witness that he was appealing that decision, so the witness then told the complainant that the College would appeal,

The witness stated that the complainant taught in other accountancy schools as well.

Summing up.

Without prejudice to the respondent’s argument that the complaint should be dismissed as per section 42 of the Workplace Relations Act, 2015, the respondent contends that the complaint of constructive dismissal fails on the reasonableness test and on the breach of contract test as it fails to meet the standards set out in Western Excavating (ECC) v Sharp (1978) IRL 332. The complainant, furthermore, chose not to invoke the grievance procedure. The requirement to do so has been set out in McCormack V Dunnes Stores (UD 1421/2008) and in subsequent decisions and in Dismissal Law (3rd edition, 2017) at paragraph 19.14, where Dr Redmond states:

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through a disciplinary procedure before dismissing, so too an employee should invoke the employer’s grievance procedure in an effort to resolve his grievance”.  

For all of the above reasons the complaint should be dismissed.

The dismissal is in dispute and therefore it is for the complainant to establish that in the circumstances of this case, the dismissal was unfair.

Does an abuse of process arise in this complaint?

I must address the request of the respondent that I dismiss the complaint in that it is an abuse of process and is res judicata. The respondent further, maintains that it should be dismissed in accordance with section 42 of the Workplace Relations Act,2015, due to it being vexatious.

The respondent’s barrister relies on the High Court decision of Behan v Mc Ginley (2011) 1 I.R. 47, which relied, in turn, on a decision of the Ontario High Court ( Re Lang Michener and Fabian (1987) 37 D.l.R  (4TH) 685, whichheld that proceedings can be considered to be vexatious when

“The issue in dispute are matters which have already been determined by a court of competent jurisdiction, i.e. they are res judicata,

Where it is obvious that no action can succeed, or if the action will lead to no possible good, or if no reasonable person can expect to obtain relief,

where the action is brought for an improper purpose including harassment and oppression of other parties, as opposed to asserting legitimate legal rights,

where issues sought to be litigated tend to be rolled forward into subsequent actions and repeated and supplemented.”

The respondent in linking this decision to the present complaint states that the matters have already been litigated upon and are merely being rolled into a further action against the respondent.

The respondent relies on Vantive Holdings [2009] IESC 69, which entailed a repeat, second petition for the appointment of an examiner under the Companies Acts. The High Court had permitted the hearing of the petition. The creditors appealed to the Supreme Court against the decision of the High Court to admit a second petition for the appointment of an examiner, the petition having been rejected in the High Court on the first occasion.

Denham J went on to state in respect of this second petition for the appointment of an examiner

“To take a deliberate strategic decision to withhold evidence from the Court (contrary to legal and financial advice) when moving the first petition for the protection of the companies by the appointment of an examiner, and having lost, to seek then to go again with fundamentally the same petition but this time with the previously withheld evidence, is an abuse of the court's process. In the circumstances the explanation by the petitioner is not such as to ground an exception to fundamental principles of the administration of justice.

“It is for these reasons that I agreed with the decision of this Court on October 6th, 2009, to allow this appeal against the order of the High Court permitting the petition to proceed.”

However, in that same decision, Murray J concurred but did address the limits of a defence of an abuse of process as follows:

“It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”

Application of the Authorities to the instant complaint

But there is a difference here. What is in dispute is whether the complainant has been constructively dismissed. The previous case concerned the complainant’s entitlement to redundancy payments in the circumstances known to the complainant and obtaining in October 2020. This is a separate cause of action under a separate statute, based, albeit on a similar set of facts.

The previous complaint, seeking redundancy payments was lodged in October 2020 when Government guidelines closed colleges from March 20 to October 2021, limiting the respondent’s ability to offer work to the complainant on other than a very reduced level. This is completely different to the circumstances obtaining in January 2022 when the same constraints, arising from Covid -19, concerning face to face teaching no longer obtained. Despite that, the evidence indicates that the respondent failed to offer work to the complainant in the period between 5/10/2021, the date of issue of the Adjudicator’s decision clarifying that contrary to the respondent’s assertion, the complainant was, in fact, an employee, and the 14/1/2022 when the complaint of constructive dismissal was lodged. He had not been advised of even a partial restoration to his pre- Covid rates of pay -a promise which had not been withdrawn but lay in suspended animation.

It is also the case that at the time of the first complaint, there was uncertainty about his employment status, resolved with the issuing of the decision numbered ADJ -000 30495 which found that he was an employee and had not been dismissed- a prerequisite to an entitlement to redundancy payments- as no letter of dismissal had issued from the respondent.

But the employer’s actions in January 2022 – sustained non engagement, absence of an offer of teaching hours, a partial restoration of his pre-Covid salary - could not have been ventilated in October 2020.

Unlike in Vantive, the complainant did not have an opportunity to present to the Court all the evidence at his disposal which was material to a decision on the validity of his complaint of constructive dismissal and if, and whether, it could be decided in his favour.

A constructive dismissal complaint is concerned with a breach of a contract and/or unreasonable behaviour, a matter not litigated in the first set of proceedings

Unlike Vantive he did not deliberately withhold evidence from the respondent in the first hearing. He did not have legal advice.

For all the above reasons I do not consider this complaint of a breach of the Unfair Dismissals Act, 1977, to be an abuse of process The circumstances are sufficiently different to lead to a finding that the lodgement of this complaint of constructive dismissal is not vexatious.

Having decided that the complaint should not be dismissed on the basis of Section 41 of the Workplace Relations Act, 2015, I must examine the substance of this complaint of constructive dismissal

Relevant Law.

Constructive dismissal is defined in s 1. of the Unfair Dismissals Act, as 

“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 is 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 uncontested evidence is that the complainant terminated his contract of employment on 14/1/2022.

 In light of the statutory definition contained in section 1 of the Act of 1977 as amended, the established principles adopted by the relevant fora and the courts, the onus lies with the complainant to demonstrate that his resignation was justified.

In justifying his decision to terminate his employment, the complainant will have to demonstrate that the circumstances of his dismissal met the tests as set out by Lord Denning, MR in Western Excavating (ECC) v Sharp (1978) IRL 332, and described thus:

“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”.

and the reasonable test which was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

These tests were followed in a line of Irish authorities.

In Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. The Supreme Court stated:

“Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them”.

In the instant complaint the complaint contends that the circumstances obtaining in January 2022 were such that he had no option but to resign.

From the point at which his status as employee was accepted, which was October 2021, a fact until then disputed by the respondent, the respondent submitted no evidence of trying to engage with the complainant about a return to work, or under what circumstances that might take place.  The respondent had failed to examine the even partial reversal of the pay cuts. Plus, the Covid 19 restrictions had been lifted. These were the circumstances obtaining when the complainant submitted his resignation on 14/1/2022. The only engagement the respondent had with the complainant concerned their failure to implement the terms of the award contained in ADJ -000 30495.  At that point the complainant had lodged an appeal to the Labour Court on the redundancy payments claim.

Unilateral change to the terms of the complainant’s contract.

The complainant has no written contract.

The uncontested evidence delivered at the hearing is that he was promised 15-18 hours a week on the commencement of his employment at a rate of €100 an hour. It is accepted that those terms applied for the duration of his employment up until September 2020 when they were altered unilaterally (from 15 to 5 hours a week and from an hourly rate of €100 to €50) without any effort to seek the complainant’s consent.

The Adjudicator in Batkof v Sugarloaf Ventures Limited, ADJ-0002971, found that a Covid -19 driven reduction of 9.8% in that complainant’s salary amounted to a constructive dismissal. In coming to his decision, the Adjudicator considered the determination of Oaklodge Fostering Limited -v- Lareina Kirwan, UDD 2161, where the Labour Court held that a 50% reduction in wages, on foot of a 50% reduction in hours, was deemed to be

 “ a significant breach going to the root of the contract and on that basis the complainant was entitled to terminate the contract."

As is well established, an essential term of a contract is the pay and hours. The evidence shows that the respondent no longer intended to be bound by one or more of the essential terms of the contract, namely, the salary and hours. The evidence also indicates that the respondent no longer saw himself bound by their contractual obligation to offer work to the complainant.

 I also find that the respondent’s conduct was damaging to the relationship of confidence and trust between them.

Based on the evidence and authorities cited, I find that the complainant has met the tests set out in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.

I find that the complainant employee is entitled to treat himself discharged from any further performance.

I find that these actions of the respondent  amount to a breach of contract such that the complainant was entitled to consider himself discharged from the contract.

 Requirement to use the Grievance Procedure.

The requirement to do so in cases of constructive dismissal has been identified in McCormack V Dunnes Stores, UD,1421/2008 and in many other decisions.

The respondent states that the grievance procedure was on the online staff handbook.

However, the respondent was unable to present evidence that they had supplied him with a copy or notified the complainant directly of its existence. Nor when the complainant submitted his resignation did they advise him of its existence or ask the complainant to reconsider his position.

More importantly they had, in 2020, advised him to communicate his issues through their solicitors.

They give no indication that they wanted him to continue working with him.

In these specific circumstances, the failure to use the grievance procedure is not fatal to this complaint of constructive dismissal.

I find that the complainant was constructively dismissed

Redress.

The complainant’s preferred redress is compensation 

Section 7 of the Act provides that

 “(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,”

Any redress is based on the loss of earnings from 14/1/2022 up until the date of the hearing on 20/3/203.

 Given the complainant’s evidence that there was no change in the terms of employment on offer to him after September 2020 but the one module for 5.3 hours  a week at a rate of €50 an hour, these are the terms, operative in January 2022, upon which I must base my award as this is not a complaint under the Payment of Wages Act,1991, nor a complaint of constructive dismissal lodged in 2020 when the pre- Covid salary was in force. It was the existence of these terms coupled with the non -engagement on teaching hours which led the complainant to resign.

His loss therefore for the 39 weeks which he would have taught from January – December 2022 was €10,335.

His loss for the period January- March 2023 was €2915

His earnings for these same periods were:

€28,493 for the period January 22- December 22, and

€7,500 for the period Jan 23 – March 23.

Hence the complainant incurred no loss.

As I find this complaint to be well founded, I decide in accordance with section 7 of the Act of 1977 that the respondent should pay the complainant sum of €1060 which is equal to four weeks salary.

I find this complaint to be well founded.

I require the respondent to pay the complainant the sum of €1060 which is equal to four weeks salary.

Constructive dismissal complaint upheld; abuse of process; second complaint