ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034281
Parties:
| Complainant | Respondent |
Parties | Omer Koreng | Lidl Ireland Gmbh |
Representatives | Initially represented by Mr. Paul Mitchell and then represented himself at subsequent hearing. | Killian O'Reilly Fieldfisher Solrs Roland Rowan BL |
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-00045342-001 | 25/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00045342-002 | 25/07/2021 |
Date of Adjudication Hearing: 05/10/2022 and 21/06/2023
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 he 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 a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust all internal mechanisms which might be available in the particular workplace before tendering a resignation. I would therefore have regard for the seminal Employment Appeals Tribunal case of UD 474/1981 Margot Conway -v- Ulster Bank Limited wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”
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 also brought a further complaint of a 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 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.
Of significance in these proceedings is the issue of timing. I must have regard to Section 8 of the Unfair Dismissals Act 1977 (as revised)
A claim by an employee against an employer for redress for unfair dismissal may be referred by the employee to the Director General who can, in turn, refer the claim to an Adjudication Officer for Adjudication.
Section 8(1)(c) The Adjudication Officer shall inquire into the claim, give the parties the opportunity to be heard and to present evidence. The Adjudication Officer will make a decision consisting of an award of redress or the dismissal of the claim. The reasons for the award or for declining redress should be given.
Section 8(2) A claim for redress under this Act shall be initiated by giving as notice in writing to the Director General within 6 months beginning on the date of the relevant dismissal or within such period (not exceeding 12 months) from the date of the dismissal as the Adjudicating Officer deems appropriate in circumstances where the Adjudication Officer is satisfied that the giving of the notice in writing within the said six month period was prevented due to reasonable cause (Section 8(2)(b) of the Unfair Dismissals Act 1977 (as revised)).
The issue of timing is also pertinent to the claim brought under the Payment of Wages legislation. As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).
The Act (at Section 41(8)) does allow for an exception where I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six month period (after the contravention) was due to reasonable cause.
Background:
This hearing was conducted over the course of two days. The hearings were held in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with 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) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. As there was an IR issue to be dealt with, the hearing was not open to the general public. A separate and anonymous recommendation will issue concerning the dispute. It should be noted that one of the Respondent witnesses did not attend in person and she was allowed to attend remotely. Remote attendance is provided for 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 contact was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that the neither party was prejudiced by having a part of 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 line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it was open to me to require that all parties giving oral evidence before me would swear an or make an affirmation as may be appropriate. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.
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Summary of Complainant’s Case:
The Complainant was represented on the first hearing date but not the second. The Complainant made an Affirmation to tell the truth. The Complainant provided me with a comprehensive submission together with over 100 pages of supplementary documentations in advance of the hearing. The Complainant additionally relied on the detailed submission outlined in the Workplace Relations Complaint Form. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alledges that he was Unfairly dismissed (by way of Constructive Dismissal). The Complainant also brings a complaint of an unlawful deduction having been made from his wages. Lastly the Complainant takes issue with the manner in which the Dignity at Work Grievance procedure was implemented. 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. In his evidence the Complainant set out a comprehensive history of the twelve months leading up to his resignation on the 25th of January 2021. The Complainant says that his Line Manager was giving him an unnecessarily hard time. In the first six months of 2020 the Complainant was faced with no less than two Disciplinary Investigations both of which he says were abandoned as they were without foundation. In response to a third disciplinary Investigation triggered in and around August of 2020 the Complainant countered by bringing Grievances against his Line Manager and his Disciplinary Line Manager. This Grievance was brought under the Respondents Dignity in the Workplace Policy. An Investigation commenced. The two Managers against whom complaints had been made were given a right to reply. The Complainant takes issue with the Statements made by these Managers. In particular, the Complainant states that the Managers were allowed to make comments and statements about him which were personal and offensive. This included calling him a liar, calling him a drunk and criticising his personal appearance. The Complainant states that no such issues had ever been raised in the past and had no relevance to the Grievance brought by the Complainant. In effect the Complainant was saying that the tables were turned on him in the course of this Investigation and it was his behaviour which was being called into question and not the behaviour of the two Managers with whom he had had a problem and about whom he had triggered the Grievance. In addition to this, there were ongoing issues concerning the Complainant’s health and the validity of his absences from work were being called into question. On the 22nd of January the Complainant was advised that he should return to the workplace where he would continue to work alongside the Line Manager against whom his complaint had been raised. The outcome of the Dignity at Work process was made known to the Complainant and he was made aware of the fact that his complaints had gained no traction (all of them, but one, were not upheld). In the meantime, a fourth Disciplinary Investigation had been commenced against the Complainant. It was at this point that the Complainant resigned his position of Deputy Store Manager citing the “…company’s appalling approach to my health and safety, continued underpayment of my salary and a combination of other negative factors to have made this position untenable”. The Complainant stated that he did not feel he was obliged to utilise the internal Grievance process all over again or to Appeal the outcome of the Grievance process in circumstances where he had lost faith in the process. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent provided me with a written submissions dated 3rd of October 2022 together with a folder of relevant documents. I have additionally heard from a number of witnesses for the Respondent. All evidence was heard following an Affirmation/Oath. The Respondent witnesses were 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. The Respondent raised a preliminary issue regarding the Adjudicator’s entitlement to entertain a complaint which has been presented after the expiration of six months beginning on the date of the contravention. In terms of loss the Respondent asserted that the Complainant had not made his case in the absence of any supporting documentation concerning loss which had been repeatedly sought. |
Findings and Conclusions:
In the first Instance I have been asked to consider whether the Complainant’s claims under both Acts can be proceeded with when it does not appear that they have been lodged with the WRC within the six-month time frame. As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act). This covers the Payment of Wages claim. The Act (at Section 41(8)) does allow for an exception where I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six-month period (after the contravention) was due to reasonable cause. Regarding the claim for Unfair Dismissal. Section 8(2) of the Unfair Dismissal Act 1977 (as revised) states that a claim for redress under this Act shall be initiated by giving a notice in writing to the Director General within 6 months beginning on the date of the relevant dismissal or within such period (not exceeding 12 months) from the date of the dismissal as the Adjudicating Officer deems appropriate in circumstances where the Adjudication Officer is satisfied that the giving of the notice in writing within the said six month period was prevented due to reasonable cause (Section 8(2)(b) of the Unfair Dismissals Act 1977 (as revised)) The Respondent is claiming that the Complainant has never showed and has failed to adduced evidence of a reasonable cause which prevented the Complainant from submitting the notice iin writing before the expiration of six months. The Complainant submitted his resignation with his employer on the 25th of January 2021. The legislation demands that I include the date of the 25th of January 2021 as the date of the contravention. Where the claim is one for Unfair Dismissal (by reason of Constructive Dismissal) I must find that the cause of action accrues on the date that the Complainant tenders his resignation. The Complainant therefore has six months form the 25th of January 2021 to bring his claim under the Unfair Dismissal legislation. This brings him up to the 24th of July 2021. The Complaint form is submitted on the 25th of July 2021. The Complainant has therefore submitted the Complaint Form one day after the expiration of the first six-month period post resignation. He is bound to establish a reasonable cause for not getting the complaint form into the WRC before midnight on the 24th of July 2021. The Complainant put forward the proposition that he was allowed to interpret the time to run from the date of an event to the exact same date in 6 months time. That he should in other words allow a month to run form the 25th of one month to the 25th of the next. This makes no sense, and such an interpretation is not allowed for under the Statute of Limitations. The Respondent made the point that the Complainant was not ignorant of his rights and in fact he had sought seek Solicitors advice in mid-April of 2021. Inexplicably, he took a further 11 weeks to file the complaint from he eventually did. The Complainant indicated that he was not mentally or financially ready to submit a complaint form before the point in time that he did. However no medical reports to back this argument and as there is no cost implication in bringing a claim before the WRC this argument does not stand up. As previously noted, an Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates. Similar language is used at (Section 8(2)(b) of the Unfair Dismissals Act 1977 (as revised)). Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
The Labour Court, in the definitive case of Cementation Skanska v Carroll DWT0338 28/10/2003, considered the issue of “reasonable cause” in the context of a similar provision to S.41(8) contained in the Organisation of Working Time Act, 1997 Section 27(5): “Not withstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause” The Labour Court stated: “It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford and excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.” The case of Cementation Skanska -v- Carroll (Labour Court Determination DWT0338 (2003)) sets out the tests to be applied to determine whether “reasonable cause” has been shown and/or demonstrated such that allows for the extension of the Statutory time limit for the bringing of case ( for a period no greater that six further months). In this case the Labour Court stated that ”It is the Court’s view that in considering if reasonable cause exists: a) It is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. b) The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. c) In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. d) The Claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. e) Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. f) The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. g) Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise it’s discretion in favour of granting the extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case For the avoidance of doubt, the Respondent relies on the High Court decision in the case of Minister for Finance -v- CPSU and Ors [2007] 18 ELR 36, wherein the Court said:- ”..ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing the statutory time limit.” The Complainant has failed to bring these matters before the WRC within the six-month time limit allowed. The Complainant has failed to demonstrate a reasonable cause upon which he can rely for his failure to present within the time allowed. In the circumstances I do not have the jurisdiction to hear this case. |
Decision:
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.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00045342-001 – The Claim for Unfair Dismissal was brought out of time and I do not have jurisdiction to make a decision. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00045342-002 -The complaint herein was brought out of time and I do not have jurisdiction to make a decision. |
Dated: 08th September 2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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