ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044622

Parties:

	Complainant	Respondent
Parties	Shane Fagan	Eiratech Robotics Limited

Representatives

Mr. Alexey Tabolkin

Chief Executive Officer

Complaints:

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-00055022-001	06/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00055022-002	06/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055022-003	07/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055022-004	07/02/2023

Date of Adjudication Hearing: 02/06/2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.

The Complainant’s complaint is that he was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that he was forced to terminate his Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment, or it was reasonable for the Employee to terminate his employment (as defined in Section 1 of the Unfair Dismissals Act 1997).

It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.

The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the Employment Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.

Secondly, the employee may allege that she satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for him to resign. That is to say that the employer has conducted its affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving. The test is objective. The test requires that the conduct of both employer and employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. The conduct of the employer that is being 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.

In the case of Curtin -v- Primark UD 234/2003 the Labour Court clearly sets a high bar on those that resign and claim it as not voluntary. In that case the Labour Court found against a store Manager of a large store who should have been “…able to handle the kind of pressure that he alleges he was put under”.

In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed from his place of employment (by reason of Constructive Dismissal) wherein he had worked for in excess of one year and where the Workplace Relations Complainant Form (dated the 7th of February 2023) issued within six months of his Constructive dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.

Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement, or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.

The Complainant has brought a number of further complaints of contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented the Director General, the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.

In particular, the Complainant herein has referred the following complaint:

A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.

By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 1st of February 2019 was submitted within the time allowed.

Background:

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

Summary of Complainant’s Case:

The Complainant was not represented and made his own case. At the outset the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. In advance of the hearing, I was also provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent witness.

The Complainant alleges that he was Constructively Dismissed in circumstances where the non-payment of his remuneration operated as a fundamental breach of the Contract of Employment.

The Complainant additionally brings claims under the Payment of Wages legislation where the non-payment of wages is an unlawful deduction.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Summary of Respondent’s Case:

The Respondent entity was represented by the Chief Executive Officer. All evidence was heard following an Affirmation. The Respondent was questioned by the Complainant.

The Respondent rejects that there has been a Constructive Dismissal and does not accept any contravention of Employment Rights as protected by statute.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Findings and Conclusions:

I have carefully listened to the evidence adduced in the course of this hearing. The Complainant has worked in Engineering Management with the Respondent company for upwards of five years. This is a company which launched in and around 2014 and which relies heavily on international investment as it finds its place in the market. As I understand it, the company operates in the area of automation especially in the warehouse environment. A significant number of the inward Investors are based in Russia. There can be no doubt that the current political climate including the sanctions imposed on high nett worth Russian individuals was bound to have an effect on the revenue stream relied on by this Employer.

Things it seems came to a head in October/November of 2022. Mr. AT (on behalf of the company) gave evidence that the Russian Investors were unable to send promised funds as and when they had promised they would. It appears there were no reserve funds to fall back on and the Employer was simply unbale to pay it’s workforce.

The Complainant was on a monthly salary of about €6,000.00 to €7,000.00. He says it became clear from the end of November 2022 that there was concern over whether or not he would be paid. Many assurances and promises were given but the evidence is that the complainant was not paid for the months of November 2022 December 2022 and January 2023.

The Complainant gave a distressing account of how difficult this was for him as he had a wife, family and household bills to be met. In particular he noted that the Christmas of 2022 was ruined by this non-payment and that he defaulted on loans. By the end of February 2023, the Complainant was at a Gross shortfall of about €19,000.00 though some small sums amounting to €1,800.00 had been paid.

The Complainant could not understand why large clients such as ASDA had not been prevailed upon to pay outstanding invoices so that salaries amongst the forty strong workforce could not be met.

In the end, the Complainant was put Lay-Off which was notified to him on or about the 1st of February 2023. The Complainant could not trust that the Employer would ever be in a position to repay what was owed to him, and even if it did, the Complainant could not be confident that the same would not happen again. The Complainant believed it was not reasonable to expect that he would continue in an employment arrangement where there had been such a clear breach of one of the fundamental aspects of the Contract of Employment. The Complainant tendered his resignation and was fortunate enough to find alternative employment within a month of terminating this employment relationship. He felt it was “an abuse of power” and that he would find it difficult “to be in the same room” as the CEO ever again.

Mr. AT gave evidence on behalf of the Company. He indicated that there was a heavy reliance on ongoing Russian investment and that the war in Ukraine had had a profound impact on this. When I asked him whether he had sought investment elsewhere he confirmed that he had not. Mr. AT did not appear to recognise that there was an obligation on him and his Financial Director to organise their affairs so that (at a minimum) payroll would be met as a matter of urgency every month. The war in Ukraine had started in February 2022 (and indeed had been building up for some time prior to that) and yet Mr. AT could not demonstrate any steps had been taken in reaction to the fact of the financial impact he must have suspected was coming. There was no evidence of careful and/or prudent management and planning. I accept the Complainant’s argument that a the very least Mr. AT ought to have insisted on payment for services rendered to various existing clients.

I accept that the Complainant was Constructively Dismissed. This is one of those cases which fall under the heading of there having been a clear breach of the Contract of Employment. The Employee has successfully argued an entitlement to terminate the Contract of Employment because of a fundamental breach of the Employment Contract on the part of the Employer. The breach is significant breach going to the root of the Contract. The breach herein is the non-payment of wages.

I do note that sometime after the Complainant had resigned his employment with this Respondent, and taken up an alternative position, the balance of the wages which were owing to him were paid to him. This happened on the 22nd of March 2023.

However, the Complainant was at a financial loss of circa four weeks remuneration arising out of the Constructive Dismissal.

One figure (in the amount of €1,500.00) remains outstanding as between the parties. This relates to what I would describe as a Finder’s Fee which Management offered to pay to any employee who successfully recruited an appropriately skilled individual into the employment ranks of the company. The Complainant says he was owed such a fee at the time that the Employer was not paying any remuneration whatsoever (November 2022 through January 2023). On balance I am inclined to accept the Complainant’s argument as being correct as to custom and practice in the company. The Complainant had been paid such a recompense previously. I accept that this figure was an unlawful deduction.

The Employer’s attempt to say he should have to wait 12 months and not 6 months before receiving this fund is not verifiable.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

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

CA-00055022-001 – the Complainant has demonstrated that he was Constructively Dismissed. I note that the Complainant was re-employed within one month of the termination of his Contract. I award the sum of €6,000.00 compensation for financial loss.

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 - This Act was not addressed by the Complainant and nothing in the evidence disclosed a claim. The complaint herein is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 – The Complaint herein is well founded, and I award the sum of €1,500.00.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 – Not well founded.This is a repeat of the above.

Dated: 24-07-2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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