ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034699
Parties:
| Complainant | Respondent |
Parties | Paul Carroll | C. Rutter Custom Software Limited |
Representatives |
| Caoimhe Ruigrok BL, instructed by James P Evans Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under s 7 of the Terms of Employment (Information) Act 1994 | CA-00045718-009 | 18/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00045718-010 | 18/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under s 77 of the Employment Equality Act 1998 | CA-00045718-011 | 18/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under s 8 of the Unfair Dismissals Act 1977 | CA-00051746-001 | 19/07/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under s 6 of the Payment of Wages Act 1991 | CA-00051746-002 | 19/07/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under s 27 of the Organisation of Working Time Act 1997 | CA-00051746-003 | 19/07/2022 |
Date of Adjudication Hearing: 13/12/2022
Workplace Relations Commission Adjudication Officer: Bríd Deering
Procedure:
In accordance with s 41 of the Workplace Relations Act 2015; s 8 of the Unfair Dismissals Acts, 1977- 2015; and s 79 of the Employment Equality Acts 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant submitted two complaint forms to the Workplace Relations Commission. The first complaint form was submitted on 18 August 2021 while the complainant was still in employment. Three specific complaints were presented within this form. The second complaint form was presented to the Workplace Relations Commission on 19 July 2022 alleging constructive unfair dismissal. At the outset of the hearing counsel for the respondent stated that the instructing solicitor had not been consulted regarding the joining of the complaints. On reviewing the file, I was satisfied that the instructing solicitor was issued with notice of the hearing on 9 November 2022 and of the intention of the Workplace Relations Commission to hear all complaints on this date.
Counsel for the respondent also submitted that the respondent was not on notice of the specifics of the unfair dismissal complaint. On reviewing the file, I noted that the complaint form relating to the unfair dismissal complaint was sent to the respondent on 9 September 2022. The respondent submitted that he did not receive it. I was satisfied that the instructing solicitor was put on notice on 9 November 2022 of the intention of the Workplace Relations Commission to hear the unfair dismissal complaint. The solicitor acknowledged that he noted the date of the hearing and that he did not request particulars of the unfair dismissal complaint until 9 December 2022. I noted that the complaint form included considerable detail around the issues leading to termination of employment. I proceeded with the hearing on the basis that the respondent was on notice of the complaints to be heard on 13 December 2022 and I was satisfied that the respondent had particulars of the complaint.
I notified the parties at the outset of the hearing of my intention to generate two additional specific complaint reference numbers for the complaints in relation to unpaid annual leave and the complaint of unpaid wages which were detailed within the narrative of the complaint form CA-00051546.
The complainant, who was not represented, gave evidence under oath. The respondent called one witness, Mr Babar Shahzad, Managing Director, who gave evidence under oath.
Background:
The complainant alleges, inter alia, unfair constructive dismissal due to breach of contract and the unreasonable behaviour of the respondent. Dismissal is in dispute. |
Summary of Complainant’s Case:
Evidence of the Complainant The complainant commenced employment with the respondent on 24 March 2003. He held the position of senior software engineer. The complainant reported into Mr Babar Shahzad, Managing Director. Mr Shahzad was located at the Irish office. A second director, Mr Ageel Shad, was based in Pakistan and was not involved in the day to day running of the business. There were only two employees employed in Ireland, the complainant and one other engineer.
CA-00045718-009 - Terms of Employment This complaint was referred to the Workplace Relations Commission on 18 August 2022 while the complainant was still in employment. The complainant stated that his contract of employment provided for weekly payment intervals but that this was not being adhered to and that the respondent had tried to change this to monthly payment intervals without his consent. This was very stressful for the complainant. He engaged the services of a solicitor to write to the respondent. This was costly for the complainant. In cross-examination, the complainant accepted that the non-payment of wages was confined to a two-month period and that by early September 2021 any wages due to the complainant had been paid in full. The complainant confirmed that no further issue arose regarding the payment of his wages and that the employer did not change the payment intervals. CA-00045718-010 - Persons Performing Mobile Transport Activities This complaint was referred to the Workplace Relations Commission on 18 August 2022 while the complainant was still in employment. The complainant stated he was required to go to a client site no more than twice a month. He selected this complaint on the complaint form on the advice of his solicitor. In cross-examination the complainant confirmed he was not a mobile worker. It was put to the complainant that he is not covered by the provisions of that Regulation. The complainant replied that he selected this complaint following legal advice he received at the time. CA-00045718-011 – Employment Equality This complaint was referred to the Workplace Relations Commission on 18 August 2022 while the complainant was still in employment. The complainant submitted that he was harassed by Mr Shad and was accused of conspiring with Mr Shahzad. The complainant contended that he was not treated as an Irish citizen should be in that he was denied his employment rights. The complainant outlined how he was asked by Mr Shad to provide evidence of alleged inappropriate business activity by Mr Shahzad. The complainant stated that Mr Shad had no right to treat him that way as that was not how things were done in Ireland. The complainant detailed how he was told by Mr Shad that “he could go” if he did not provide Mr Shad with the information he wanted. The complainant felt this was a threat of dismissal if he did not do as Mr Shad asked. Mr Shad had no right to treat him that way as Mr Shad was not the person the complainant ordinarily worked with or reported into. From June to October 2021, Mr Shahzad was not around, and the complainant and his colleague were left to do the work. In cross-examination the complainant was asked to clarify if his complaint was that he was not treated as an Irish citizen should be, to which the complainant affirmed. The complainant was asked for dates on which this behaviour allegedly occurred. The complainant stated that it was over the phone on several occasions. The complainant confirmed that Mr Shad looked for documents and nothing else. The complainant confirmed that Mr Shad was very apologetic about Mr Shahzad’s conduct in relation to the business and reassured the complainant that he would sort it out. The complainant replied that while he had a certain amount of sympathy for Mr Shad, the whole incident should not have happened in the first place. The complainant confirmed that his complaint of racial discrimination was on the advice of his solicitor at the time and was based on the denial of his employment rights as an Irish citizen. CA-00051746 – 001 - Unfair Dismissal This complaint was presented to the Workplace Relations Commission on 19 July 2022. The complainant alleges unfair constructive dismissal on 24 January 2022 due to breach of contract and the unreasonable behaviour of the respondent. The employee stated that there were no concerns regarding his employment until 30 June 2021. On this date, wages due to him were not paid. This continued for several weeks. Mr Shad had accused Mr Shahzad of unscrupulous activities in the business account and had frozen the business account from which wages and other bills were paid. Rent had not been paid and mobile phones stopped working. Mr Shad visited the Irish premises in October 2021 and advised the complainant that Mr Shahzad was allegedly trying to cheat him out of the business, and he needed proof of his alleged inappropriate activities. The complainant stated that he had worked for the respondent for 18 years and was shocked this could be going on. The complainant stated that he was instructed not to work for Mr Shahzad anymore, that Mr Shad would sort it out and that the complainant was to continue working as normal. In November 2021 Mr Shad said Mr Shahzad would be leaving the business. In December 2021 the complainant became aware that the respondent had not paid tax on the complainant’s earnings since August 2021. This caused the complainant and his family grave concern. Local Property Tax which was supposed to come out of his salary also had not been paid. The complainant sent two emails to Mr Shahzad on 6 and 11 January 2022 requesting payslips and requesting that the respondent correct the complainant’s tax affairs. The respondent sent the complainant payslips; however, the payslips were completely incorrect. Taxes were not paid, and the salary amount was incorrect. Revised payslips were then sent to the complainant, these too were incorrect. The complainant contended that it had now got to the stage that the complainant didn’t know how the company was being run. CCTV cameras had also been installed in the office without the complainant’s consent. This was unwarranted and was extremely upsetting after 18 years of service. The complainant resigned his position on 24 January 2022 as the work environment had become so difficult. There was no grievance procedure and no one to turn to. The complainant received no reply to his letter of resignation. At the time of termination, the complainant was earning €55,000 per annum. The complainant secured a new job on 31 January 2022 on a salary of €70,000. In cross-examination, it was put to the complainant that his resignation was on foot of two emails to the respondent regarding incorrect payslips. It was further put to the complainant that he did not utilise the grievance procedure which was contained within a handbook he signed on commencement of employment. The complainant stated he had no recollection of receiving a handbook. It was put to the complainant that he was repeatedly reassured that the matter concerning his taxes would be sorted out. The complainant replied that his solicitor sent letters and emails to the respondent on his behalf. It was put to the complainant that the solicitor’s letters related to the temporary non-payment of wages, a matter that had been sorted out. The complainant agreed but added that his tax was not in order and his payslips were a mess and that requests for payslips prior to that were ignored. It was put to the complainant that the payslips were available on the server. The complainant stated that this was not the case, and he was never made aware that payslips were on the server. CA-00051746-003 - Annual Leave The complainant stated that he did not receive payment for 10 days annual leave accrued and not taken on termination of employment. The complainant submitted that his contract of employment provided for 21 days annual leave. It was put to the complainant in cross-examination that an annual leave year is April to March and that the complainant had taken all leave accrued. The complainant stated that the annual leave year in the respondent business was January to December and that on 24 January 2022 he was owed 10 days annual leave. CA-00051746-002 - Payment of Wages The complainant stated that he worked two back weeks on commencement of employment which was due for payment on termination of employment. This was denied by the respondent. |
Summary of Respondent’s Case:
Evidence of Mr Shahzad Mr Shahzad outlined that there was an excellent working relationship between him, and the two employees based in the Irish office, and that there were no issues until June 2021 when wages were not paid. Mr Shahzad referred to a business issue between himself and the other director, Mr Shad, which led to Mr Shad freezing the business account. Mr Shahzad understood the difficulties non-payment of wages might present for the complainant, and he arranged for payment of the complainant’s wages from his personal account for some weeks until he ran out of money. Mr Shahzad stated that payslips were available and saved onto the server. He received no requests for payslips from the complainant prior to December 2021. Payslips were provided to the complainant when he requested them. The respondent had changed accountants at this time. The complainant emailed Mr Shahzad saying the payslips were incorrect. Mr Shahzad requested that these payslips be corrected, and the revised payslips were then forwarded to the complainant. He heard nothing further regarding the accuracy of the payslips. Mr Shahzad was out of the country from July 2021 to December 2021. By December 2021, he and Mr Shad had come to an agreement and the business account was then reopened. It was a bad episode, and they were now trying to get the business back on track. Mr Shahzad accepted that taxes were not paid but that was a matter between the respondent and Revenue and a repayment plan was in place to address that. Tax returns were filed and there was never an intention not to pay what was owed. Mr Shahzad was surprised to receive the complainant’s resignation as both directors had given assurances things would be sorted out. However, Mr Shahzad did not question the complainant’s resignation or contact the complainant thereafter. Mr Shahzad confirmed that the complainant was not a mobile transport worker and was only required to visit client sites once or twice a month. Mr Shahzad was unsure if the complainant was due two weeks in arrears as he was not with the respondent company when the complainant was hired. Mr Shahzad confirmed the annual leave year as January to December. Mr Shahzad was asked by the complainant why he was surprised that the complainant was leaving. Mr Shahzad replied that he was surprised the complainant was leaving as he had been trying to resolve matters for the complainant. Mr Shahzad stated that the shared drive containing the payslips was set up 3 or 4 years previously. The complainant put it to Mr Shahzad that this was untrue and added he was never aware of a filing system for payslips. Mr Shahzad stated that when he learned the payslips were incorrect, he asked his accountant to rectify them. He did not personally check them all. In response to a question as to why taxes had not been paid, the respondent stated that a repayment plan had been agreed with Revenue and it was the intention of the respondent to resolve that issue. The respondent stated that things had been handled badly and it was taking time to get back on track. Mr Shahzad confirmed that relationships were strained during the months June 2021 to January 2022. There was little communication, and everyone seemed to be working in silos. It was a difficult period for everyone. |
Findings and Conclusions:
CA-00045718-009 - Terms of Employment For several weeks commencing June 2021 the employee did not receive his weekly wages on time. This was due to the respondent bank account being temporarily frozen. The employer proposed to change the payment intervals. This was rejected by the complainant. It is common case that the respondent resolved the non-payment of wages issue by September 2021 and the employee was paid all that was due to him. The complainant continued to receive his wages thereafter on a weekly basis until termination of employment. Accordingly, the matter was resolved by September 2021. I must be satisfied of my jurisdiction to investigate this complaint by reference to the relevant legislation and the nature of the complaint. This is a complaint under the Terms of Employment (Information) Act 1994 (“the 1994 Act”). The 1994 Act places an obligation on employers to inform employees of the conditions applicable to the contract or employment relationship. I find that this complaint, which relates to non-payment of wages for a period and a proposal to change the frequency of payment intervals, does not fall within the remit of the 1994 Act. This complaint is based on a misunderstanding of the 1994 Acts. I find that this complaint is not well-founded. CA-00045718-010 - Persons Performing Mobile Transport Activities The employee referred a complaint under S.I No. 36 2012 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. The complainant did not particularise any specific complaint under this Regulation. The complainant selected this complaint on the advice of his solicitor at the time. These Regulations apply to mobile workers and self-employed drivers, participating in road transport activities to which either the Council Regulation or the AETR applies. It is common case that the complainant is not a mobile worker, or a self-employed driver. I find that the complainant does not come within the scope of S.I No. 36 2012 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. I find that this complaint is not well-founded. CA-00045718-011 – Employment Equality The Employment Equality Acts 1998 to 2015 (“the Acts”) promote equality in the workplace and provide protection against discrimination, harassment, and victimisation. An employer cannot discriminate against an employee in relation to several areas including conditions of employment. The Acts prohibit discrimination on nine grounds, including race. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated, on one of the nine grounds. The employee must demonstrate that they have been treated less favourably than a comparator. The Acts also prohibit any form of unwanted conduct related to any of the discriminatory grounds. This is referred to as harassment. Section 85A(1) of the Acts provides: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” The complainant is required to establish facts from which discrimination can be inferred. It is only when this burden is discharged does the burden shift to the respondent to show that no unlawful discrimination took place. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of this evidential burden on a complainant and held: “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.” Therefore a complainant must establish both the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy (EDA 21/2008), the Labour Court stated: “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.” In Valpeters v Melbury Developments [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. To determine whether the complainant has established a prima facie case a three-tier test is employed: (1) the complainant must establish that he is covered by the relevant discriminatory ground; (2) he must establish that the specific treatment alleged has actually occurred; and (3) it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground. The argument that mere membership of a protected class and difference in treatment is sufficient for a complainant to meet his or her burden of proof in terms of s 85A was rejected by the Labour Court in Valpeters. The complainant described how he was asked to provide information about one director to another director. Both directors were of a different nationality to the complainant. The complainant argued that this was not how an Irish citizen should be treated. I understand that these requests were very unpleasant for the complainant, and I appreciate that it was unfair that the complainant should be put under pressure to comply with such requests, however, I am satisfied that the making of these requests had nothing to do with the complainant’s nationality but rather because he was based in the Irish office and had access to the required information. Accordingly, I find that the complainant has not established a prima facie case of discrimination. CA-00051746 – 001 - Unfair Dismissal The burden of proof to establish that resignation was not voluntary rests with the complainant. There are two tests contained within the definition of constructive dismissal at s 1(b) of the Unfair Dismissals Acts 1977 - 2015, either or both may be invoked by an employee. The complainant in this case is relying on the contract test. Either test may be applied by the Workplace Relations Commission. Section 1 of the Unfair Dismissals Acts 1977 – 2015 defines dismissal, which includes at (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 . . . .” Where the contract is terminated by the employee, there is only a dismissal within the meaning of s (1)(b) if, “because of the conduct of the employer”, the employee was “entitled” to, or it was “reasonable” to terminate the contract of employment. Accordingly, the question of the dismissal must be considered under “entitlement” and/or “reasonableness”. The contract test is used to assess entitlement to terminate the contract and was summarised in a UK Court of Appeal decision by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.C.R. 121(cited in Berber v Dunnes Stores [2009] IESC 10) as follows: “If 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, then the employee is entitled to treat himself as discharged from any further performance.” An employee may be entitled to terminate the contract where the employer engages in conduct which results in a fundamental breach of the contract, or which indicates that the employer no longer intends to be bound by the terms of the contract. A general term is implied into every contract of employment that the employer will not impair the ‘trust and confidence’ of the employee. In Malik v Bank of Credit and Commerce International [1997] 3 All ER 1 (cited in Berber v Dunnes Stores [2009] IESC 10), Lord Stein stated: “The implied obligation extends to any conduct by the employer likely to destroy or seriously damage the relationship of trust or confidence between employer and employee”. In Malik the threshold was held to be high - it must “destroy or seriously damage” the trust between the parties, however, it is not essential that the employer be aware of the effect of the conduct. Nor that they intended such an effect. Similarly In Joyce v Brothers of Charity Services [2009] ELR 328, the Employment Appeals Tribunal held that the conduct “. . . cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee”. The reasonableness test “. . . asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving . . . ” (Cedarglade Limited v Tina Hilban, UDD 1843). Regardless of whichever test is applied, the threshold for constructive dismissal is very high (Nicola Coffey v Connect Family Resource Centre Ltd, UD 1126/2014 and Calderon & Others v Lootah & Others, UD1219/2013). To succeed in this claim, the complainant must establish the respondent engaged in conduct which was 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 and/or that the employer’s behaviour was so unreasonable that the complainant was justified in leaving. The respondent submitted that the complainant resigned on foot of two emails relating to incorrect payslips (a matter which the respondent had committed to resolving) and that the non-payment of wages was a temporary matter which had been resolved months earlier. It is the complainant’s case that over a period of 6 months, the respondent engaged in ongoing unreasonable conduct which seriously undermined his trust and confidence in the respondent. The complainant felt he had no option but to resign from his employment. The unreasonable behaviour complained of included failure to pay wages due for a period; requests made of the complainant to supply information relating to one director to another director; the provision of incorrect payslips; the failure to pay taxes due on wages; and the installation of CCTV cameras without the consent of the complainant. In Berber v Dunnes Stores Ltd [2009] 20 ELR 61, it was held by the Supreme Court that in determining if there has been a breach in the implied contractual term of mutual trust and confidence, an examination of the conduct of both the employer and employee much be examined as a whole, and the cumulative effect of the conduct must be looked at. The conduct of the employer must be unreasonable and without proper cause and its effect on the employee must be viewed objectively, reasonably, and sensibly to determine if it is such that the employee can no longer be expected to tolerate the behaviour. The question to be considered here is whether the cumulative effect of all the interactions between the respondent and the complainant crossed a threshold to damage the relationship to such an extent that it was reasonable for the complainant to resign. I find in this case that it did. The complainant was caught in the crossfire of a serious dispute between the two directors of the company and placed in an impossible position. The complainant found himself in a situation where the director he reported into had left the jurisdiction; his wages were not paid (albeit temporarily); the rent for the premises was not being paid; phones were cut off; he was under pressure to provide evidence of alleged wrongdoing of one director; CCTV cameras had been installed without his knowledge and customers were seriously concerned about the future of the company. The respondent did not deny the foregoing and acknowledged that the atmosphere was not pleasant, that there was little communication, and everyone seemed to be working in silos. The last straw for the complainant was when he discovered taxes due on his wages was not being paid and his payslips were incorrect. The complainant understandably had loss all trust and confidence in the respondent and had become very concerned for his livelihood and the future of the company. It is well settled law that an employee must make reasonable efforts to bring the grievance to the attention of the employer before resigning. In O’Gorman v Glen Tyre Company Ltd (UD2314/2010), the Employment Appeals Tribunal noted that “it is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and the employer be given an opportunity to resolve the issues”. At a minimum the employee will be expected to utilise the company grievance procedure. However an employee may be justified in resigning without utilising the grievance procedure in particular circumstances. In Mr O v An Employer (no. 2) [2005] 16 ELR 132, the court accepted “. . . that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal”. In Schonfield v. West Wood Club Clontarf Ltd (UD1013/2013), the complainant had no one to complain to about the conduct of the General Manager. The Employment Appeals Tribunal upheld the complaint of constructive dismissal. It is common case that the complainant in this case did not invoke the grievance procedure. The complainant stated that he never received a grievance procedure and further it would have been futile to raise a grievance as there was no one to complain to. I am satisfied that the only persons the complainant could have raised his grievance with was either of the two directors. Mr Shahzad had returned to Ireland and whilst he may have been trying to get back on track, I find that it was reasonable for the complainant to have lost all trust in Mr Shahzad and Mr Shad at this stage, especially after a second opportunity to rectify payslips failed to address the complainant’s concerns. In conclusion, I find that the cumulative effect of the respondent’s interactions with the complainant crossed a threshold such that the complainant was entitled, and it was reasonable for the complainant, to terminate his contract of employment within the meaning of s 1(b) of the Unfair Dismissals Acts 1977 – 2015 and that the complainant was unfairly dismissed. Section 7(1)(c)(i) of the Unfair Dismissals Acts 1977 – 2015 stipulates that where an employee incurs financial loss attributable to the dismissal, an award of compensation can be made in respect of the loss as is just and equitable having regard to all the circumstances. Financial loss includes 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 1973, or in relation to superannuation. At the time of termination on 24 January 2022, the complainant was earning €55,000 per annum. The complainant secured a new job on 31 January 2022 on a salary of €70,000. Therefore the complainant’s loss is confined to 6 days which I calculate to be €1,269.23. CA-00051746-003 - Annual Leave The complainant stated that he did not receive payment for 10 days annual leave accrued but not taken on the date of termination of employment. The respondent submitted that an annual leave year is April to March and that the complainant had taken all leave accrued. The complainant stated that the annual leave year in the respondent business was January to December and that on 24 January 2022 he was owed 10 days annual leave. Section 19(1) of the Organisation of Working Time Act 1997 (“the 1997 Act”) provides: “. . . an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to— (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)”. Section 23(1)(a) of the 1997 Act provides: “Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.” The respondent did not produce records of annual leave accrued or taken. Where records are not kept in the prescribed from, the onus of proving that the provisions of the 1997 Act have been complied with rests on the respondent. The respondent has not discharged that burden in relation to this complaint. The complainant referred this complaint in relation to unpaid annual leave to the Workplace Relations Commission on 19 July 2022. Therefore the cognisable period covered by the claim is the six-month period from 20 January 2022 until 19 July 2022. The complainant was dismissed on 24 January 2022 which falls within the cognisable period. The leave year for the purpose of determining if an employee received their statutory entitlements is that prescribed by the 1997 Act, a year starting on 1 April and ending on 31 March the following year. Any contravention of the 1997 Act arising from the respondent’s failure to pay the complainant in respect of outstanding annual leave on the cessation of his employment accrued within the period from 1 April 2021 to 24 January 2022. I cannot consider the respondent's failure to pay the complainant in respect of annual leave outside of this period and I cannot have regard to any leave entitlement more than the statutory leave amount provided for under s 19. The complainant accrued 16.7 days annual leave within the period of 1 April 2021 until 24 January 2022. The complainant stated that he had already taken 10 days leave. Accordingly, the complainant was due 6.7 days pay in lieu of statutory leave accrued but not taken on termination of employment. I find that this complaint is well-founded, and that the complainant is entitled to payment of €1,417.31 in respect of accrued annual leave entitlements on the cessation of his employment. CA-00051746-002 - Payment of Wages The complainant stated he worked two back weeks on commencement of employment which was due for payment on termination of employment. Mr Shahzad was unsure if the complainant was due two weeks wages in arrears as he was not with the respondent company when the complainant was hired. Section 1 of the Payment of Wages Act 1991 (“the 1991 Act”) defines wages as: “. . . 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 . . . .” Section 5(6) the 1991 Act provides: “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”. Section 6 (1) of the 1991 Act (as amended) provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding-(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that-(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment . . . . “ The complainant gave a cogent account of being owed two weeks wages in arrears that fell due to be paid on termination of employment. This was not contradicted by the respondent. I therefore find that the complainant is owed €2,115.38 in unpaid wages. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints 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 decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with s 7 of the 1977 Act. Section 79 of the Employment Equality Acts 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under s 82 of the Act.
CA-00045718-009 - Terms of Employment I decide that this complaint is not well-founded. CA-00045718-010 - Persons Performing Mobile Transport Activities I decide that this complaint is not well-founded. CA-00045718-011 – Employment Equality I decide the complainant was not discriminated against on grounds of race. CA-00051746 – 001 – Unfair Dismissal I decide that the complainant was unfairly dismissed, and that the respondent shall pay to the complainant compensation of €1,269.23. CA-00051746-003 - Annual Leave I decide that this complaint is well-founded, and I award the complainant €1,417.31 in respect of accrued annual leave entitlements on the cessation of his employment. CA-00051746-002 - Payment of Wages I decide that this complaint is well-founded, and the respondent shall pay to the complainant compensation of €2,115.38. |
Dated: 2nd March 2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
Key Words:
Constructive dismissal. Payment of wages. Annual leave. |