Complainant

Respondent

Parties

Tushar  Joshi

Cleandata Limited

Representatives

Rory Treanor BL instructed by Crushell & Co Solicitors

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-00054685-001

25/01/2023

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

CA-00054685-002

25/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00054685-004

25/01/2023

The Complainant worked for the Respondent from the 1st of May 2020 until his resignation, which he alleges was a constructive dismissal, on the 3rd of June 2022.

The Complainant filed the above complaints on the 25th of January 2023.

In hearing the Complainant only pursued the complaints under Section 8 of the Unfair Dismissals Act, 1977 and Section 5 of Payment of Wages Act, 1991.

The Complainant attended the hearing and gave evidence under affirmation. Legal submissions were made on his behalf by counsel.

The Respondent did not attend the hearing. A hearing notification was sent to their registered address.

Time Limits

Both the Workplace Relations Act 2015 and the Unfair Dismissals Act 1977 contain similarly worded time limits. Complaints under these acts must be referred to the WRC within a 6 month time limit.

In certain circumstances an Adjudication Officer can extend that timeline by another 6 months.

These circumstances were considered by the Labour Court in the seminal case of Cementation Skanska v Carroll, DWT0338. The Court’s position on the issue of time limits is set out below.

“It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be 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 Complainant at the material time.  The Complainant’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 Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

This case essentially concerns the failure of the Respondent to pay the Complainant and his  colleague. Both of their evidence was that while they were constructively dismissed on the 3rd of June 2022 due to their employer failing to pay them. However, they maintained a relationship with the Respondent’s CEO who was promising not only to pay them their back wages but was also planning to rehire them via an associated company.  This rehiring would involve them relocating to France. The Complainant was quite limited in their options because of their visa status which was subject to renewal and this was a prospect they felt they were required to maintain. The Complainant believed they would be moving to France on a visa secured by the Respondent until shortly before he submitted the above complaints.

I am satisfied that there was a continuing relationship with the Respondent CEO and that the Complainant was led to believe that they were being rehired. I believe it is reasonable to recognise the damage submitting WRC complaints would have caused to such prospects. I am satisfied that that reason explains and excuses the delay, particularly the context of the Complainant’s visa status. 

I am of the view that I ought to extend the 6 month time limit in this matter and consider the substantive complaints. 

Payment of Wages Act, 1991 CA-00054685-002

The Complainant’s evidence was that the Respondent had gone through financial difficulties in the past which had affected their salary. In January 2022 these resurfaced, and the Complainant’s salary essentially stopped. Instead of being paid €3300 at the end of each month the Complainant was paid €1000 on two occasions over a period of 5 months. He was not paid €14500 in outstanding wages from January to June.

Section 5(6)(a) of the 1991 Act provides:

“Where 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) . . . 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.”

I am satisfied that the Complainant’s wages were properly payable. The Respondent has advanced no case that there were any deductions permitted under the above act.

Unfair Dismissals Act CA-00054685-001

The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns.

Thiis is outlined in section 1 of the act which defines dismissal as to include:

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 wouldv have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

As outlined by UK Court of Appeal put it in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 there are grounds under which a person can claim constructive dismissal. The “contract ground” and the “reasonableness” ground.

 Lord Denning, in that Judgment, summarises the position regarding the “contract ground” 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. If he does so, he then terminates the contract by reason of the employer’s conduct. He is constructively dismissed”

One of the most core terms of any contract is that an employee is paid for their services at an agreed rate. The Complainant’s evidence was that the Respondent resiled from that key term.

In the circumstances the Complainant was entitled to treat themselves as constructively dismissed.

Redress

Section 7 of the Unfair Dismissals Act outlines the options for redress that I must consider. The Complainant is not seeking reinstatement or reengagement since he has secured alternative employment.

As such I will limit considering redress to Section 7.1.C, that is financial loss.

7.1.C states at subclause (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,

Section 7 goes on to state that 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 Acts, 1981 to 1993, 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.

Sub section 3 then defines “financial loss”, in relation to the dismissal of an employee, 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;

The Complainant made no submissions on loss or diminution of his loss under the Redundancy Payments Acts or superannuation. The Complainant made submissions regarding his attempts to find alternative employment. The Complainant registered with a number of recruitment agencies and made 185 applications for alternative roles, which he interviewed for 30 of, to mitigate his loss.

The Complainant began employment in their current position on 23 November 2022 with a higher salary.

The Complainant was out of work for 24 weeks. The total loss of earnings between the termination date and commencement date was €18288.

I am satisfied that he attempted to mitigate his loss and that the constructive dismissal was entirely due to the actions of the Respondent.

Employment Equality Act CA-00054685-004

This case appears to involve parallel claims. Section 101.4.A  of the Employment Equality Act outlines a process in which a Complainant is required to elect between the two complaints or see the Employment Equality withdrawn automatically.

That process is set further out in S.I. No. 126/2016 - Employment Equality Act 1998 (Withdrawal of Certain Claims) (Relevant Date) Regulations 2016 and does not appear to have been followed in this case. As such the claim remained live.

This case was not pursued at hearing and no evidence of prohibited conduct was put forward.

CA-00054685-001

The above complaint is well founded. I direct the Respondent to pay the Complainant €18288.

CA-00054685-002

The above complaint is well founded. I direct the Respondent to pay the Complainant €14500.

CA-00054685-004

The above complaint is not well founded.