Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

 Self-Represented

 LK Shields LLP

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00051006-001

03/06/2022

The Employer is an Energy Company.  The Worker commenced employment with the Employer on 29 November 2021.  His monthly salary was €4,666.67 gross.  The Worker tendered his resignation on 01 May 2022 to take effect from 30 April 2022.   The dispute referred to the Workplace Relations Commission on 03 June 2022 relates to an alleged unfair dismissal submitted in accordance with the Industrial Relations Acts, in circumstances where the Worker did not have the requisite 12 months service in order to refer a complaint in accordance with the provisions of the Unfair Dismissals Act, 1977.  On the WRC complaint form, in respect of “Unfair Dismissal Type” the Complainant states “I had to leave my job due to the conduct of my employer or others at work (Constructive Dismissal). I do not have at least 12 months service.” The Worker’s claim is denied by the Employer.  The Employer submits the Worker terminated his own employment by reason of voluntary resignation. The Employer further submits that the worker resigned without raising any formal grievance.  

The Worker submitted extensive documentation in advance of the hearing between the lodging of the claim and up to the date of the hearing.  The Worker provided a detailed statement of the specific details of his complaint on the WRC complaint form.  He submitted threads of numerous email exchanges with the Employer.  He provided a very helpful complaint timeline.  I have carefully reviewed all the Worker’s submissions and I have extrapolated the core issues and summarised them hereunder.

The Employer’s submission was received the evening before the hearing.  It was stated by the Employer’s representative that due to the postal strike in the UK they had not received the letter with the date of the hearing until 07 December 2022.

The outcome the Worker is seeking from this hearing is that I recommend the Employer should “fix payroll” and “sort out HR”.

The Worker states he had issues in relation to his pay from the first pay day, namely 20 December 2021.  He states he had expected that his December pay would be subject to emergency tax as he did not have the Employer’s registered number to provide to Revenue.  He states he did not receive a payslip in respect of his December, January, February, and March salaries.  He had to request them every month.   The Worker states he remained on emergency tax until May 2022.  Further problems arose regarding the Worker’s need to change his bank account details as his existing provider was exiting the Irish market.  This bank account issue commenced on Friday 11 March 2022 when the worker contacted HR to see what action he needed to take in order to change his bank account details.  HR responded on Monday 14 March advising that he would need to advise the payroll team details of his new bank account as soon as possible.  However, this transition did not run smoothly.  New bank account details were provided by the Worker on 27 March.  Salaries continued to be paid into his existing bank account up until May.  The Worker did not receive his June payment on the due date and the efforts made to retrieve this were a cause of further frustration to him. 

The Worker states the ongoing issues caused him financial hardship.  He used all his savings and he had to borrow from his parents and from a Credit Union.  The Worker attributes full blame for this situation to the Employer.  He sent numerous emails to HR during the course of his employment outlining his difficulties regarding his salary and seeking resolution of same.  He states in his submission that in his opinion it is unreasonable that an employee should have sole responsibility for his/her salary and tax entitlements.  He further states the payroll department whose job it is to process salaries should not have to rely on an employee on how they have to conduct their business. 

The Worker made reference to interpersonal issues that arose on a business trip to the US when he took exception to comments passed by his line manager in the company of co-workers.  The Worker states his line manager may have been joking but he, the Worker, did not take it that way.  

He tendered his resignation on 01 May 2022 to take effect from 30 April 2022 wherein he stated, “due to many issues I don’t feel I can work with the company anymore”.

Employer’s Preliminary Argument: Filing of Complaint / Pre-Lodged Complaint.  The Employer’s representative made a preliminary objection to my jurisdiction to hear the matter on the grounds the complaint was filed on 03 June 2022 at a time when the Worker remained in the employment of the Employer and prior to the termination of his employment taking effect.  The Employer’s representative submits the Worker’s resignation was formally accepted by the Employer by letter dated 05 May 2022 wherein it was noted that the Worker had to give a three month notice period but that the Employer would place him on garden leave during that notice period and that his last day of employment with the Employer Company would be 29 July 2022. 

This is an Industrial Relations investigation.  Nevertheless, for the avoidance of any doubt over my jurisdiction and in the interest of completeness I have considered the Employer’s preliminary argument.   The issue of pre-lodged claims has been addressed by the High Court in Brady v. Employment Appeals Tribunal [2015] ELR 1.  The High Court found that the claim was not pre-lodged in circumstances whereby the claimant had lodged his claim during his notice period and therefore, his termination was imminent.  I am guided by this decision and find that I do have jurisdiction to hear this dispute in circumstances where the Worker’s notice period had not yet expired. 

The Employer’s representative submits the Employer has a legal duty to make deductions to an employee’s wages in accordance with prevailing tax and social insurance legislation.  The Employer’s representative further submits the issues with emergency tax were a direct result of the Worker’s failure to record the Employer as his employer with Revenue.  Details were provided of some of the email interactions with the Worker and in particular an email dated 28 March 2022 directing that the Worker must set up his details on Revenue Online Service (ROS) and ensure that his credits are moved to his new employer.  Specific detail was provided on how to best manage this process with Revenue.  The Employer’s representative submits that following this email to the Worker he updated his revenue information to correctly reflect his employer as being the Employer as verified by an amended tax credit certificate issued by Revenue dated 28 March 2022.   

The Employer’s representative acknowledges the Worker had issues receiving his payslips and when this was raised by the Worker the Employer raised it with the external payroll provider.  The Employer’s representative submits pending a satisfactory resolution to the payslip problem by the external provider, a contingency plan was put in place to ensure the Worker was in receipt of his payslips.  The Employer’s representative refutes the Worker’s allegation that he did not receive his payslips. 

The Employer’s representative in her written submission provides comprehensive details on the bank account issues that arose around the changing of the Worker’s bank account details.  She submits that when the Worker alerted the Employer to the fact he had not received his salary for the month of June immediate action was taken to investigate this matter.  The new IBAN and BIC codes provided by the Worker were reaffirmed with him.  Upon receipt of this reaffirmation the Employer commenced an investigation into the missing monetary transfer.  A query was raised with the Employer’s bank and a trace was put on the funds the Employer had paid across in accordance with the Bank account details provided by the Worker.  The funds had bounced back into the Employer’s bank account as confirmed by the bank on 06 July.  The error code assigned to the bounce back was the ‘incorrect details’ error code.  The Employer sought alternative bank account details from the Worker and the funds were paid into the existing account heretofore used which remained open. 

The Employer’s representative submits the issues in respect of the bank account occurred after the Worker had resigned his position and could not have informed his decision or justification in respect of his resignation. 

The Employer’s representative submits the resignation of the Worker was freely given.  It is further submitted the Worker has failed to meet the most basic test for justification of a claim of constructive dismissal and his complaint should fail.  It is acknowledged by the Employer’s representative there may have been room for improvement in respect of some of the communications in terms of minor delays.  The Employer’s representative submitted at the closing of the hearing that the Company was genuinely sorry for any collateral damage caused arising from the circumstances that prevailed around salary during his employment.

In support of their position the Employer’s representative referred to the following cases:

Olivia Barry v. Quinn Insurance Limited UD 1775/2010

Murray v. Rockavill Shellfish Ltd [2002] 23 ELR 331   

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.  I have carefully considered the written and oral submissions. 

On the basis that the Worker had less than the 12 months service required under section 2(1)(a) of the Unfair Dismissals Act, in order to avail of the protections provided by that Act, the Worker referred this dispute to the Workplace Relations Commission under the Industrial Relations Acts and is, in essence, a claim of constructive dismissal.  The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act, 1977.    However, it is a term commonly understood to refer to that part of the definition in section 1(b) of the Act which provides:

“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, or it 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.”

I am satisfied the definition of constructive dismissal set out above is the appropriate backdrop against which I will base my conclusions.  Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it must satisfy either one or a combination of both of the following “tests”.

There are two sets of circumstances in which a resignation may be considered a constructive dismissal.  The law is well settled here, and these tests are known as the “contract” test and the “reasonableness” test.  The first test, that of breach of contract, requires that the contract of employment must have been breached to such a degree that the employee is left with no option but to resign.  However, it is now also generally understood that an employee must act reasonably in terminating their employment and that resignation must not be the first option taken by the employee.  All other options including grievance procedures must be explored.  The reasonableness test requires that the employee must satisfactorily demonstrate that the Employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  The employee must show that his action or behaviour in resigning was reasonable in all the circumstances. 

It is also well established that an employee is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal.  This is clearly set out in Reid v. Oracle EMEA Ltd [UD1350/2014] where the EAT stated:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

Having considered all of the information presented to me, I find there is no doubt the Worker’s period of employment with the Employer can be characterised by a catalogue of unfortunate events in terms of his salary payment.  I sense the Worker’s frustration and anger at how matters unfolded regarding his pay issues in his belief the Employer was entirely at fault.  However, I find that fault is attributable to both parties in this regard, though at very different levels on the blame spectrum, despite the Worker’s assertion that in his opinion it was unreasonable that an employee holds sole responsibility for salary and tax entitlements.  The fact of the matter is the employee does have sole responsibility for his / her tax affairs. 

In the instant case the Worker failed to update his details on ROS and his tax credits never moved over to his new employer.  As a result of this failure to update his details, his previous employer was still identified as Employment ID 1 with Revenue.  The Worker’s growing frustration was palpable from the exchange of emails that took place over the period of his employment where the parties were literally at cross purposes for much of these exchanges as the fundamental problem lay with the fact Employment ID 1 was not updated with Revenue and correcting this was within the sole remit of the Worker.   I find the fault to be attributed to the Employer, at the lower level on the blame spectrum, is that during all the email exchanges between the Worker and the Employer during which contact was made with ten individual staff members in HR and elsewhere, it seemed to take a significant amount of time before anybody seized ownership of the problem to uncover the underlying issue. 

As stated above the Worker made contact with ten individual staff members in all in HR and elsewhere in the organisation throughout this period but he never once thought to raise a formal grievance.  His statement that he did not know why he had not done so when I questioned him on this during the hearing is perplexing.   It is even more perplexing when the Worker mentioned he had trained in HR in the past.  He would have been aware of the benefit of raising a formal grievance because it immediately promotes ownership and accountability in terms of the specific grievance and an assurance the matter will be dealt with in a timely fashion by the individual appointed to investigate the matter.    He would have been aware of the existence of a grievance policy as the Employer’s representative stated that employees are advised where the policies are saved and how to access them during the onboarding / induction process.  The Worker was scathing in his view of the induction he received.  Nonetheless, the policy was available to him as it was saved in the Work Day Tool for all employees and he clearly had access to this.  Having had sight of the Grievance and Disciplinary procedures it appears to me the comprehensive policies conform to the general principles of natural justice and fair procedures in terms of compliance with S.I. No. 146/2000 (Code of Practice on Grievance and Disciplinary Procedures).

The Worker referred to interpersonal issues in his submission and during the hearing regarding comments made to him by his line manager in front of co-workers that may have been made in jest, but the Worker did not take it that way.  It is clear to me the Worker felt aggrieved about this issue and he could have formally invoked the grievance procedure, but he failed to do so.  

My role as an adjudication officer is to examine how the workplace procedures are utilised and to assess the reasonableness of the outcome.  In the instant case there is no outcome for me to consider as the Worker did not take the opportunity to raise a grievance.  This failure to raise a grievance is determinative in terms of considering his claim for constructive dismissal.  Furthermore, the Worker has failed to establish that he was constructively dismissed, particularly when regard is had to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” as provided for at section 6(7) of the Unfair Dismissals Act. 

Based on my careful consideration of the written and oral submissions, I find the Worker has failed to discharge the burden of proof to support his claim that he was constructively dismissed for the following reasons.   I do not find the conduct of the Employer amounted to an essential breach of the contract of employment.  Having carefully reviewed all the information I cannot find the Employer acted or behaved in a manner so as to leave the Worker with no option but to resign. Finally, the Worker did not avail himself of the grievance procedure prior to resigning. 

Neither do I find I can recommend that which the Worker sought by way of an outcome.  HR responded with alacrity to the Worker throughout albeit both parties were at cross purposes during numerous of those exchanges.  The payroll function was delivered by an external provider.  However, the Employer’s internal senior payroll analyst, once apprised of the salary situation, was quick to act in liaising with the external payroll provider and communicating to the Worker the action needed to be taken by him in order to ensure the correct allocation of his tax credits. 

At the close of the hearing the Worker confirmed he commenced in a new position on 02 August 2022 following the expiration of his notice period with the Employer on 29 July 2022.  I wished him well for the future in his new role.