Complainant

Respondent

Parties

Shane  Howard

Attitude Technologies Limited

Representatives

  Self-Represented

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-00052551-001

02/09/2022

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

CA-00053319-001

17/10/2022

The Complainant was employed as a sales representative with the Respondent from 16 August 2018 to his resignation by what he claims was constructive dismissal on 1 September 2022. The Respondent was involved in importing goods from China and selling them on the Irish market. The Complainant’s monthly pay was €2,666.67 gross; net €2,266.04 for a 40-hour week.  The Complainant is claiming that he was not paid wages that were properly payable and also that he was unfairly dismissed by way of constructive dismissal.

CA-00052551-001: Complaint under the Payment of Wages Act 1991 (1991 Act):

The Complainant gave evidence under affirmation. He had issues over a period with the non-payment of his wages and exhibited payslips as well as emails to the Respondent to this effect. He was led to believe that the issue would be resolved, according to a communication from his CEO on 20 July 2022. However, this did not turn out as promised. There are overdue wages going back over June, July, and August. He received his wage slips but not the corresponding monies. He quantified his wages outstanding as €5,268.67.

The Complainant attempted to contact the CEO four times between 1 August 2022 and 29 August 2022, but no reply was forthcoming.

CA-00053319-001: Complaint of Constructive Dismissal under the Unfair Dismissals Act 1977, as amended (the 1977 Act):

There had been an ongoing issue with pay and payslips going back to the start of the year. Pay had been arriving on later and later dates. Payslips stopped being issued altogether in May 2022 but pay was still being processed. The situation looked as though it was going to finally be resolved in July when all overdue expenses were paid, and the Complainant had an email from the CEO stating that all overdue and due pay would be paid at the start of the following week. (exhibited). The Complainant got part of his wages due from June on 29 July but that was the end of the sequence of payments.  Nothing was paid since, though the Complainant continued working.  The Complainant sent numerous emails to the CEO in China without response.

The Complainant incurred expenses on behalf of the company over the period of June, July, and August 2022.  No further pay has been processed to date and the CEO of the company has not responded to any attempt at contact to resolve the situation. The Complainant had no option but to terminate his employment by resignation effective from 1 September 2022 and commenced a search for alternative employment. The Complainant finally secured a position as a salesperson in a technology company at a higher salary at the end of November 2022.

The Complainant is seeking compensation for constructive dismissal under the 1977 Act.

The Respondent did not attend the hearing. I am reasonably satisfied that the Respondent was notified of the time, date, and venue of the hearing.

CA-00052551-001: Complaint under the Payment of Wages Act 1991 (1991 Act):

Section 5 of the Payment of Wages Act 1991 (The Act) provides, in its relevant parts:

5.(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—  

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,  

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or  

(c) in the case of a deduction, the employee has given his prior consent in writing to it….

… (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”.

The Complainant gave credible oral and documentary evidence that he was not paid his full wages from June to the end of August 2022. The net material unpaid sum being €5269.  I am satisfied that the non-payment of wages properly payable is an unlawful deduction under section 5 of the 1991 Act.

I find that the complaint was well founded under section 6(1) of the Payment of Wages Act 1991, and I order the Respondent to pay the Complainant the net sum of €5269.

CA-00053319-001: Complaint of Constructive Dismissal under the Unfair Dismissals Act 1977, as amended (the 1977 Act):

Section 1 of the Unfair Dismissals Act 1977, as amended, (the 1977 Act)  defines constructive dismissal 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 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.”

There are two tests for determining if a constructive dismissal has occurred. The first test is the ‘Contract Test’. A fundamental illustration of this test is found in    Western Excavating (ECC) ltd. v. Sharpe [1978] ICR 221:  where it was stated:

 “If an 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, then the employee is entitled to treat himself as discharged from any further performance”.

In considering this test I have to consider if a term of the Complainant’s contract was breached by the actions of the Respondent such as to make it reasonable for the Complainant to determine that the contract had been terminated.

Implied in every contract of employment is the fundamental obligation to be paid for work done. The Complainant gave wholly credible oral and documentary evidence that he was not paid for the latter months of his contract though he remained working. The Complainant also submitted cogent evidence that he had repeatedly brought the matter of non-payment to the attention of the Respondent, but to no avail. I am therefore satisfied that it was wholly reasonable for the Complainant to terminate his contract under such circumstances, and I find that the Complainant was unfairly dismissed by way of constructive dismissal.    

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (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,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

It is well established in law under the 1977 Act that there is an obligation on a Complainant to mitigate their loss. I am satisfied that the Complainant gave credible evidence of diligent efforts to seek work and was ultimately successful three months later when he commenced employment in a position at a higher rate of pay than that he enjoyed at the Respondent company.

Having regard to all the circumstances in this complaint, I am satisfied that it is just and equitable to conclude that there was a financial loss of three months. The compensatory sum to be paid, therefore, should be the equivalent of 3 months net which is €6798.

CA-00052551-001: Complaint under the Payment of Wages Act 1991 (1991 Act):

For the reasons outlined above, I find that the complaint was well founded under section 6(1) of the Payment of Wages Act 1991, and I order the Respondent to pay the Complainant the net sum of €5269.

CA-00053319-001: Complaint of Constructive Dismissal under the Unfair Dismissals Act 1977, as amended (the 1977 Act):

For the reasons outlined above, I decide that the Complainant was unfairly dismissed, and I award him the compensatory sum of €6798.

Payment of Wages Act 1991, Unlawful Deduction, Unfair Dismissals Act 1977, Constructive Dismissal.