Complainant

Respondent

Parties

Suellen  Oliveira Farina Ferreira

Mbc Products Ireland Ltd

Act

Complaint Reference No.

Date of Receipt

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

CA-00057989-004

31/07/2023

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

CA-00057989-005

31/07/2023

The complainant commence with the respondent  in January/2022 in a Sales Support role, but in  June 2022  was promoted to Logistics Manager. She gave her evidence on affirmation.

Following her promotion  then experienced a number of serious difficulties with her employer.

The first of these was that she was not given an updated contract to reflect her new position and the details of her remuneration although she requested it several times over a period of months. She continued to work for fourteen months on her previous contract and was provided with two versions  which did not accurately reflect the  role or the terms that attached to it.

There were other problems.

The company was sending inaccurate information to the Revenue Commissioners regarding her wages in order to reduce her tax liability, despite her frequent requests that this be corrected.

She did not get her monthly pay slips and always had to request it. She provided written evidence of disparities in her payments which could vary greatly from week to week. (There are eight payments for the month of March 2023).

Between January and  May 2023 none of her pay slips  matched her wages, or matched the actual payment received in her bank account and she submitted that her wages were reduced without her approval.

The complainant was trying to get a mortgage at this time and the company would not provide her with an accurate income statement so that she could process her application. Taken with the inaccuracy in the pay slips and revenue returns this was very damaging to her prospects of getting a mortgage.

Eventually she resigned on July 4th, 2023. She says that she was not paid her wages for the month after she submitted her resignation despite offering to ensure a smooth transition to her departure.

The respondent, which is a company in liquidation, did not attend the hearing or send a representative.

The complainant set out the grounds above which she says justified, indeed required her resignation from the respondent.

This is not entirely borne out by her letter of resignation on July 4th, 2023, to Mr. Andrzej Labedz which read as follows.

DearAndrzej,

PleaseacceptthisletterasformalnotificationofherintentiontoresignfromherpositionasLogisticsManagerwith MBCProject.Inaccordance withher noticeperiod,her final daywill beJuly28th.

I wouldliketo thankyouforthe opportunitytohave workedinthecompanysinceJanuary2022. Ihavelearneda greatdealduringhertimehereandhaveenjoyedcollaboratingwith hercolleagues.Iwill takealotofwhatI have learnedwithmeinhercareerandwilllookback athertimehereas avaluableperiodofherprofessionallife.

Duringthenext4weeks,IwilldowhatIcantomakethetransitionassmoothaspossibleandwillsupportin whatever way I can to hand over her duties to colleagues or to her replacement. Please let me know if there is anythingfurther,Icandotoassistinthisprocess.

Kind regards

Suellen Ferreira

Logistics Manager

Normally a letter drafted in such amicable terms would be a contra-indicator of the elements necessary to ground a complaint of constructive dismissal and this was the subject of further inquiry in the course of the hearing, to which I return below.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment. It is, after all, a breach of a legally binding contract.

When an employer wishes to terminate the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings.

The most common source of complaints under the Act is when an employer has terminated the employment, and the criteria referred to are then the key tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning.

A different situation arises when an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

 ‘The conduct of the employer 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.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to open an assessment of whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

In other words, has it been at a level and of a nature that represents a repudiation of the contract of employment?

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

Turning to these elements, the conduct of the employer and the steps taken by the employee to seek a remedy, the complainant set out some very serious allegations against the respondent.

As it happens, she also stated that they had serious consequences for her in her attempts to apply for a mortgage, but even detached from these consequences she alleges that the complainant unilaterally reduced her wages, made inaccurate returns to the Revenue Commissioners and refused to supply her with contemporaneous payslips.

Looking back at February 2023 the total paid to her (in five instalments) was €1908.83, about €800 less than her due wages.

The position regarding payments in March 2023 was referred to above in the complainant’s submission. The records of transfers to the complainant ‘s bank account shows that payments of varying amounts were made on March 7th, 10th, 14th, 21st, 24th, 30th and 31st. Despite this erratic pattern of payments, the total amount lodged, €2594.81 is still just under €200 less than she was due as her net wage.

For some unaccountable reason the payments for April are correct.

On the question of her contract, there was some confusion in her understanding of the position.

It is common to refer to the statutory statement required under the Terms of Employment (Information) Act as a contract, and even many employment law professionals do so.

But it is inaccurate to do so and occasionally both unhelpful and misleading.

Therefore, while the complainant thought she had legal grounds for complaint in general terms about the failure to issue her with a new ‘contract’ that is not strictly true.

 Nonetheless, sufficient of the particulars required by the statutory statement had changed to require the employer to issue an amending statement and he did not do so. While a complaint has also been made under that Act it is perhaps more persuasive as contributing to the accumulation of conduct on the part of the employer which feeds into the test set by Finnegan J above in Berber v Dunnes Stores.

She submitted payslips and I accept her sworn evidence that these did not accurately reflect the true position and she claimed that she has been left with a debt to the revenue Commissioners of some €800 as a result.

So much for the conduct of the employer.

The complainant confirmed that she had not lodged a formal grievance and said that she was not aware of any provision within the company to do so. It seems unlikely that the respondent had a grievance procedure or, if it did, it was not known to the complainant.

However, her evidence was of constantly seeking to have the situation regularised. This is where her mortgage application becomes relevant and added credibility to her submission as it provided her with a very definite motivation to have these matters put to rights.

For that reason, I believe she meets the test of having exhausted internal avenues for a resolution before resigning.

This brings us to and provides context for the tone of the letter of resignation, which as noted above does not convey the impression of a disgruntled employee.

On the basis of the totality of the evidence I accept that the tone of the letter does not reflect the reality of the complainant’s disposition at the time of her resignation and the overwhelming evidence supports that.  She said she was concerned that there would be retaliation against her for leaving the respondent.

And it turns out that she was right as the respondent did not pay her for her final month’s work.

Accordingly, the complainant has made out a good case and meets the criteria for a constructive dismissal and complaint CA-00057989-005 is upheld. She succeeded in gaining employment about a month later and I factor this into my decision on redress.

Her complaint under the Terms of Employment (information) Act CA-00057989-004 is also well founded. I consider the breach of her rights to have been at serious level of gravity and I award her four weeks’ pay.

Complaint CA-00057989-005, constructive dismissal is upheld, and I award the complainant €3333.00 for her losses attributable to the dismissal.

Her complaint under the Terms of Employment (information) Act CA-00057989-004 is also well founded and I award her €3333.00, being four week’s pay for the breach of her rights under the Act.

Constructive dismissal