Worker

Employer

Anonymised Parties

{Apprentice Success Engineer}

{A Company}

Representatives

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001100

09/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00068038-001

09/02/2023

The Worker worked as an Apprentice for the company from 5th September 2022 until he resigned on 16th January 2023.

The Worker was offered a position while he was in college. He was told that travel to the office would be a paid expense. This was not confirmed in writing. He was pressured to travel to Cork which was an ultimatum, when the Worker advised it was not financially viable as it is an apprenticeship. The Worker had no option but to resign and was constructively dismissed.

The Worker was bullied and harassed. The Employer threatened the Worker with financial repercussions should he fail to return equipment after he had worked with another party in the company to return the equipment.

The Worker was employed as an apprentice while he was in college. Another intern was employed at the same time.

An apprentice agreement was put in place, there was no agreement to cover the cost of commuting to the office. It was a hybrid role and there was an expectation the Worker would come to the office each week.

The Worker resigned on 17th January 2023 and questioned the notice period. He said the equipment would be available for collection. The Employer arranged for a courier to collect the equipment, but was unable to collect the equipment. At times the Worker was not cooperative and responsive.

On 25th January 2023, the Employer wrote to the Worker regarding his queries on travel reimbursement. The Chief People Officer said that as the Worker had not provided notice, he was not entitled to payment of notice and this is an overpayment which the company can seek to recover. However, they would allow the overpayment as an ex-gratia payment on the basis he promptly returned the equipment.

The Worker resigned from employment. He was considering resigning on 3rd January 2023 and made the decision himself there was no coercion. The company have no information about bullying and harassment of the Worker. No complaint or grievance was ever made by the Worker in relation to the issues and they are open to investigating any legitimate concerns.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Worker was employed with the company as an apprentice while in college. He found the role unsustainable as the cost of commuting from Kildare to the Cork office was not covered by the company. It was over 200 km per week. He spoke to his supervisor about this on 3rd January 2023.

The company did not agree to pay the cost of commuting to work for the Worker or the other intern  who was on a lower rate. The Worker felt forced out as he couldn’t afford it. The place of work was not defined in his contract and there was no obligation to travel to Cork. When he decided to resign he informed his Supervisor, then his company profile was removed immediately and he did not get the opportunity to work out his four week’s notice.

The Worker was provided with an apprenticeship contract when he commenced employment. He was required to work from the office in Cork two days per week. Travel expenses for work were reimbursed by the company, but not the cost of commuting. The Worker raised his concerns with the sustainability of employment with his Supervisor, but did not lodge a formal grievance. He was informed the company do not pay the cost of commuting. The Worker resigned on 16th January 2023.

The Worker claims unfair dismissal pursuant to S 6 of the Unfair Dismissals Act 1977-2015 and that he has been constructively dismissed. The Act defines “dismissal” in relation to an employee 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”.

In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, the employer has breached his contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.

The Worker said the company agreed to pay his travel to the Cork office but there was no clause confirming this provision in writing. The Worker raised his concerns on the cost of travel to the office with his Supervisor and was told this would not be paid. The Employer confirmed they do not pay costs of commuting and the Worker was given a higher rate on commencement of his apprenticeship. In the circumstances, there is no evidence of breach of contract by the employer or unreasonable conduct. I make no recommendation in relation to the complaint of unfair dismissal.

The Worker complains that he was bullied and harassed after he resigned. He was threatened with financial repercussions if he did not return company equipment when he was arranging this. He was not allowed work his notice of four weeks and his profile was deleted. The Worker complains he was then threatened that the company were entitled to seek an overpayment of two week’s pay.

The Workers contract of employment provides for four week’s notice. At the time he handed in his notice he was overpaid for two weeks. He did not receive the opportunity to work his four week’s notice as his profile was deleted immediately. In the circumstances, I recommend the Worker is paid an additional two week’s notice of 768 euro by the Employer.