Complainant

Respondent

Parties

Theresa  Mc Guinness

HPL Engineering Services Ltd

Representatives

Ken Stafford Consultant

 Self-Represented

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-00054102-001

12/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054102-002

12/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054102-003

12/12/2022

The Complainant was employed as an Office Manager/Bookkeeper from 19 October 2021, until the termination of her contract on 2 December 2022 with the Respondent Electrical/ Mechanical  Engineering company. Her gross salary was €40,000 p.a. The Complainant submits that her working conditions were made so intolerable by the Respondent company that she had no option but to resign her employment. She is claiming unfair dismissal under the Unfair Dismissals Act 1977, as amended (hereinafter “the 1977 Act) by way of constructive dismissal.

The Complainant further submits that she did not receive wages properly payable to her in breach of the Payment of Wages Act 1991 (hereinafter “the 1991 Act”), to the total of €1,538.50.

The Complainant submits that she did not receive her terms of employment under the Terms of Employment (Information) Act 1994 (hereinafter “the 1994 Act”).   

The Respondent denies all complaints.

  CA-0005412 – Unfair Dismissal:

Summary of the Complainant’s evidence:

The Complainant gave evidence of never having received an employee handbook nor information of bullying and harassment procedures. In March 2021 she had to personally take care of some Romanian employees who found themselves in a distressed state due to accommodation problems. After she had sorted the problem, she received an abusive call from a supervisor which she found to be totally unacceptable. She wrote to Mr Peter Lambe, Director, giving details of the incident but received no reply (exhibited).  

The Complainant stated that Mr. A joined the firm in June 2022 and made her life a misery. They shared an office, and he was in a supervisory position, now being the in-house accountant.  On 14 June a work colleague reported to her a conversation that took place the previous day  between Mr. Lambe and Mr A,  wherein Mr A  told Mr Lambe  that the Complainant  was no longer needed in the company. Later that day, Mr A called the Complainant into Mr Lambe’s office  where she was told by Mr A that that he was coming to work full time with the Respondent  and that he was bringing in his own team; someone he had trained in Accounts , and also  his wife who  was  to handle HR. Mr A told her that there was no work for her in her present capacity. The Complainant was told that her salary would be reduced to €30,000, which he described as “the going rate”. This was further reduced when the Complainant’s working hours were reduced. Mr A told her to “take it or leave it”. Later, Mr Lambe spoke to her and assured there will always be work for her at the company and that her salary was not being reduced.

 On 21 July Mr Lambe asked the Complainant if a particular client had been invoiced, and she told him that Mr A had instructed her that he was going to handle it two days earlier. Later, the account was yet to be invoiced  and Mr Lambe  instructed the Complainant  to do this immediately. Later Mr A found out that the invoice had been issued, and he proceeded to tell her that she had no business issuing it. The Complainant stated that Mr A was deeply unpleasant to her in this interaction.

Later that day, Mr A raised an issue with the Complainant based on incorrect information. The Complainant explained the correct situation, and Mr A became nasty and said he did not like her attitude.   He went on to say that he did not like that she had complained to a colleague about the tension in the office – which she had not done. Around this time, she noticed that her access to her work systems had been revoked by Mr A, with no explanation or notice to her.

On 25  July 2 Mr A  had told a colleague  that the Complainant  was withholding information from him, and held  a meeting with Mr A, the Complainant  and two other colleagues to discuss this. The Complainant asked Mr A as to what information she was supposedly withholding from him.  He became angry, which she reports  which was not unusual in his dealings with her. Mr A became angrier again with her,  and a colleague of the Complainant had to tell him to calm down. The Complainant stated that  Mr A stormed out of the office, slamming doors behind him, and then kicking the door in the  joint office he shared with the Complainant.

On 25 August the Complainant and a colleague  were called into the  office of Mr Lambe to be told that their hours were being cut. They were told that the reason was that the accountants  had made substantial errors in the 2021 Accounts. Her hours were reduced by  half to  2 .5 days per week, and she  would get a contribution to fuel and parking costs as her  role involved some travelling for the company. The Complainant and her colleague were the only two employees targeted for hours reduction.  Mr A was again angry over the expenses allowance and  blocked the arrangement that Mr Lambe had made. She sent Mr Lambe an email setting out the content of the meeting, but he did not reply. (exhibited).

On 30 August Mr A  removed the Complainant’s  office chair and replaced it with an unsuitable chair (photo exhibited).Her  computer monitor was removed from her desk.  Her  active files were also removed and could not be located. The Complainant asserted that at  this stage the tension  in the office was palpable – it had become total unbearable for her.

On 23 September the Complainant attended her doctor, as she was exhausted and very stressed. She  was told to rest  and try to get back to a proper sleep pattern. She a sent the medical certificate to Mr Lambe.

On 31 October the Complainant  set out  the  treatment she was subject to, in a letter  sent by registered post to Mr Lambe, seeking a response within two weeks (exhibited). There was no response.

On November 25 the Complainant  resigned from  her employment by letter, with an end date of December 2nd. The Complainant received two subsequent letters from Mr Lambe, but they did not address her specific concerns. The second letter referenced a grievance procedure which the Complainant said she had never received.

At this stage the Complainant asserted that the  relationship between herself and the Respondent had broken down. The Complainant could not contemplate returning to the workplace  alongside Mr A, which she believed would have been injurious to her health.

It was put to the Complainant that she received an  employee handbook on recruitment in October 2021. The Complainant denied ever receiving such a handbook. It was also put to the Complainant that the supervisor who verbally abused her in March 2022 was subsequently reprimanded, but the Complainant said she was not told of this previously. It was also put to the Complainant that  her wages were never reduced in the manner described, because Mr Lambe said he had her payslips in his possession. The Complainant said she had received no payslips for the period in question but that she vehemently denies no reduction in her wages.  

Complainant Legal Argument:

The Complainant submits that Constructive Dismissal is defined in the 1977 Act  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”.  

The Complainant submits that the  statutory definition contains two tests either or both of which may be argued by an employee:- 1. The “contract” test. In this test an  employee claims an entitlement to resign on the basis that there has been a significant breach of contract by the employer which goes to the root of the contract, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; 2. The “reasonableness” test. Here the employee claims that it was “reasonable” for him to resign.

The Complainant cites Berber –v- Dunnes Stores 2009 E.L.R.61 where  Finnegan J stated:

“The conduct of the employer complaint 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”.

The Complainant refers to Dr. Mary Redmond (Dismissal Law in Ireland p.34)  where it states:

Where grievance procedures exist, they should be followed. The Complainant asserts that no such procedures were available to her.

The Complainant cites  Laird v- Health Service Executive UD165/2007, where the EAT focused on the fact that a member of management had attended a staff meeting at which aggression was exhibited towards the claimant personally as well as towards management following a controversial shift change (she received a premium payment to work this shift). The EAT found that what occurred at that meeting was extraordinary and the Respondent should have taken immediate action to improve the situation. In the absence of evidence to the contrary, the EAT found that it was credible that the claimant had suffered from being isolated and bullied within the workplace and they further found the claimant had suffered by the Respondent’s failure to properly investigate the allegations made for the period of a year. The Tribunal awarded €28,536.

The Complainant cites the following cases, amongst others:

Melligan v Karmarton LimitedUD101/08

A sales executive successfully asserted constructive dismissal after his sales targets were trebled before any bonus would be payable. The EAT said that it was “bound to find that the contract of employment and the terms and conditions of his employment were being interfered with to such an extent that he could no longer continue in the workplace.” Mr Melligan was awarded €60,000.  

UD378/2009

The Complainant submits the Tribunal found that  an employee is entitled to terminate the contract only where the employer is guilty of conduct which is either of significant breach going to the root of the contract, or which shows that the employer no longer intends to be bound by one or more of the contractual terms of the contract.

The Complainant asserts that in this instant case the   Respondent’s accountant engaged in ongoing hostility to the Complainant. He utterly repudiated the employment contract by reducing the hours and pay by 50%. The Complainant contends that both Mr Lambe and Mr A were aware of the Complainant’s dismay at the actions of the company, but both chose to ignore her concerns.

The Complainant submits that only credible conclusion that the Complainant could reach was that the Respondent wanted her out of the job, and they  were quite prepared to engage in grossly unpleasant tactics to achieve their aim. The Complainant contends that she could not live with her treatment, nor with the degree of loss of earnings. When she had nowhere and no one else in the company to turn to, she resigned.

On mitigation of loss, the Complainant in evidence gave details of numerous efforts in finding work, which included contacting eight employment agencies, and attending in excess of 10 interviews in the period between 2022 and March 2023. In March 2023 she engaged with a Government Department and was successful in a new position. She commenced employment on 18 June 2023 on an annual salary of €28k.  In calculation of loss the Complainant submitted figures to show her overall total loss in the 2-year post-termination period is €39,162.34, when her new employment is factored in.

CA-0005412-002 – Terms of Employment.

The Complainant submits, that despite requesting them, the Complainant was never given written terms of Employment.  She submits that this was a major disadvantage to her because there were no Grievance or Bullying and Harassment Procedures, she could rely on in the circumstances described above in the associated constructive dismissal complaint.

CA-0005412-003 – Payment of Wages Complaint.

For a 4-week period the Complainant asserts she was only paid 50% of her contractual pay. The weeks were 2, 9, 16, and 23 September 2022  The Complainant submits that the  Respondent had not established a contractual right to reduce her working hours or pay. The Complainant submits that based on an annual salary of €40k, the gross weekly pay is €769.23, and 50% pay is €384.625. On that calculation, 4 weeks at 50% loss is €1538.50, is the amount the Complainant submits was properly payable under the 1991 Act.

Mr Peter Lambe, Director of the Company, gave evidence and oral submission on behalf of the Respondent. In his opening statement he described how he felt “the company had grown too fast” and that the situation in the office was “toxic in hindsight”. He outlined how the Company was predominantly an electrical contractor but that they also did some mechanical work. He described that he had interviewed the Complainant and whilst she was good with the European work “she was not as fast as we would have liked it” on the financial side. The Company had a lot of clients and a lot of infrastructure. He reported that he had not been a witness to any of the alleged incidents that the Complainant alleged happened between herself and Mr A. He stated that he wrote twice to the Complainant asking that she might reconsider her resignation. He was adamant that the Complainant had received her full pay which he maintained were in records available to him.

In cross examination, he stated that whilst he accepted there was a salary decrease, that any shortfall was made up to the Complainant later. He stated that he didn’t know at the time that her hours were reduced.   

CA-0005412 –001 Unfair Dismissal:

Section 1 of 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’. The Respondent opened the 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 Kennedy v. Foxfield Inns Ltd UD 549/1994 at page 4, the Employment Appeals Tribunal stated: “The question for the Tribunal is to decide whether the claimant's decision to terminate her employment was reasonable. We are satisfied on the evidence that, by virtue of the type of conduct of which she had complained, coupled with the status of the perpetrator of that conduct; the claimant's situation in her employment became intolerable to the extent that she was left with no option but to terminate her employment.

In considering the test I have to consider if a term(s) 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 repudiated by the Respondent.

The second test is the “Reasonableness Test”. This is a testin which there is a burden of proof on a Complainant to establish that the behaviour of an employer was so unreasonable that it was reasonable for the employee to terminate their contract of employment. There is also a reciprocal duty on a complainant to show that they acted reasonably.  This test asks whether the employer conducted their affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer.   The seminal case is  Conway v Ulster Bank Ltd. (UD 474/1981) where the Tribunal found that the claimant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints.”  

There was uncontested evidence in this case that the Complainant was subject to intolerable behaviour from Mr A. I am satisfied that the constant abuse and negative tones constituted bullying, Mr A did not appear as a witness to testify otherwise but Mr Lambe acknowledged, that in hindsight the situation was toxic in the office. The Complainant gave further evidence that her salary was reduced by 50%. The Respondent submitted that if this happened, then the money was repaid but the Respondent submitted no documentation to that effect, nor was the Complainant issued with payslips- she was excluded from the payroll and filing systems that she normally had access to, in the weeks prior her resignation.  

On the reasonableness test, there is a requirement for an employee to exhaust the grievance procedures before resignation. The Complainant gave convincing evidence that she never received a grievance procedure, contract of employment nor employee handbook when she commenced employment in October 2019. The Respondent witness stated that there was an employee handbook given to the Complainant at the initial stage, but no documentation was submitted by the Respondent to support that position. Furthermore, the Complainant wrote to Mr Lambe on 31 October 2022 outlining the serious problems she was encountering at work. No reply was forthcoming to this letter from Mr Lambe until after the Complainant’s resignation. I conclude that the Complainant has fulfilled the reasonableness test, that in the absence of formal available grievance procedures, she gave the opportunity to Mr Lambe to rectify matters, which was not availed of.

Having considered the evidence and submissions, I am satisfied that fundamental terms of the Complainant’s contract  were breached by the Respondent, in that  : (1)  her place of work was unsafe due to intolerable behaviour of Mr A and (2)  she did not receive a substantial part her full wages. This breach of fundamental terms was such as to make it reasonable for the Complainant  to determine that the contract had been repudiated by the Respondent. I therefore find that she was unfairly dismissed by way of constructive dismissal.

Redress:

Section 7 of the 1977 Act, in its relevant parts, provides:

(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:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

…. (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;

The decision of Coad v Eurobase (UD1138/2013), outlines the duty to mitigate loss under the Act where the Tribunal noted:

“In calculating the level of compensation, the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. “It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

The Complainant’s evidence in this case was that she made earnest efforts to secure alternative employment, detailing numerous companies and interviews she attended until her contact with a public service employer in March 2023, leading to re-commencement of employment on 18 June 2023. Therefore, I am satisfied that she did everything reasonable to mitigate her loss. The figures submitted in uncontested evidence by the Complainant make out a loss of €39,162.34 over two years, after factoring in her earnings in the new employment.  I conclude, based on the evidence, that the Complainant did not contribute in any way to her dismissal.

Having regard to all the circumstances in this complaint, I am satisfied that it is just and equitable to conclude that  the compensatory sum should be €39,000.

CA-0005412-002 – Terms of Employment.

The 1994 Act requires that an employer must provide his/her employee with a written statement of the particulars of the employee’s terms and conditions of employment.

Furthermore, redress in the Act is described as follows at Section 7(2):

 A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6or 6C shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

 (d)in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)  order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

 (e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The Complainant stated that she never received her initial terms of employment as per the 1994 Act. The Respondent maintained that the Complainant received an employee handbook, which was denied by the Complainant. No record of such a receipt was submitted. The Respondent otherwise did not give any evidence in support of a position of compliance with the Act.  I therefore find that the evidence of the Complainant to be convincing and I conclude that the complaint was well founded.  It should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. I find that the complaint was well founded and that the Respondent pay the Complainant the sum of €770.00, the equivalent of one week’s salary.

CA-0005412-003 – Payment of Wages Complaint.

Section 5 of the 1991 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 evidence that s she was only paid 50% of her contractual pay in the weeks of paydays 2, 9, 16, and 23 Sept. 2022 The Complainant  submitted that the  Respondent had not established a contractual right to reduce her working hours or pay. The Respondent, on the other hand, gave evidence that any outstanding deductions were made good to her. However, the Respondent did not submit any documentary evidence to support this contention. Having regard, to the submissions and the evidence on this complaint, I find that the complaint was well founded.

Section 6 of the 1994 Act deals with redress where it provides:

(1) 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 tips or gratuities as the case may be] (after the making of any lawful deductions 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 Complaint submitted a calculation based on her gross wage over 4 weeks, deducted at 50%. However, she is only entitled to the net loss under the Act which I estimate to be €1,031.00.

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.

CA-0005412 –001 Unfair Dismissal:

For the reasons outlined above, I find that the Complainant was unfairly dismissed, and I order the Respondent to pay the Complainant the Compensatory sum of €39,000.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-0005412-002 – Terms of Employment.

For the reasons outlined above, I find that the complaint was well founded, and I order the Respondent to pay the Complainant the compensatory sum of €770.

CA-0005412-003 – Payment of Wages Complaint.

For the reasons outlined above, I find that the complaint was well founded, and I order the Respondent to pay the Complainant the net amount of the unlawful deduction which is €1,031.

Unfair Dismissals Act 1977, Constructive Dismissal, Terms of Employment 9Information) Act 1994, Payment of Wages Act 1991.