Complainant

Respondent

Parties

Ionut  Tifrea

Kilkenny River Court Hotel

Representatives

  Self

 Patrick Meyler, HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00059272-001

06/10/2023

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

CA-00059272-002

06/10/2023

The Complainant was employed by the Respondent as a Duty Manager from 03/06/2021 until 15/09/2023.  The Complainant submits that he was constructively dismissed and that he was not paid for annual leave due.  The Respondent confirmed at the hearing that there is a payment due for outstanding leave but denies that he was constructively dismissed.  He was paid €670.80 gross per week, and he submitted his complaint to the WRC on 06/10/2023.

The Complainant gave evidence on affirmation.  He was employed as a Duty Manger with the Respondent and paid €670.80 gross per week, and he worked a 39-hour week.  The Complainant outlined that he was suspended on 14/09/2023 pending an investigation into a discrepancy. The Complainant gave evidence that he submitted his resignation after a meeting on 15/09/2023 and he was due to be paid for outstanding annual leave but has not received this to date.

In relation to his complaint of constructive dismissal the Complainant outlined that he was on suspension arising from a discrepancy in  cash handling.  He attended a meeting on 15/09/2023 and he gave evidence that he “had a feeling that whatever the outcome of the meeting  there was no place for me in the hotel”.  The Complainant outlined that the investigation was held in relation to the way he was handling cash.  He was presented with a different way of handling the cash and there was no turning back.  He asked the Respondent what his options were, but he did not get an answer.  The Complainant gave evidence that he had a feeling he was to be dismissed so he put in his resignation.

The Complainant confirmed that he did not raise any grievances with the Respondent.  The Complainant outlined the various attempts he made to mitigate his loss and gave details of the various jobs he obtained.  He was working part time (24 hours per week) in mid-October 2023 and was paid €13.50 per hour.   He obtained a full-time job on 25/11/2023 and remains in that post.  He is paid €32,000.

There were no questions for the Complainant by way of cross examination.

Mr Patrick Meyler, on behalf of the Respondent,  outlined that  the Complainant was paid suspended pending an internal investigation into errors in the Respondent’s cash handline procedures.   This investigation had not concluded when the Complainant submitted his resignation.  There were other meetings to be held and ultimately the Respondent had to make findings based on the evidence they had collected. 

Mr Meyler confirmed that the Complainant did receive a final pay slip and he is due pay for holidays. The Respondent was in the process of sorting this when they received an instruction from the Respondent’s head office not to pay this amount until a Garda investigation had concluded.  In response to a question from the Adjudication Officer Mr Meyler confirmed that there was no provision in the Complainant’s contract of employment which provided for the retention of his annual leave payment in these circumstances.  The Respondent did not provide any witness from the Respondent’s head office to explain the decision to withhold this payment.

Mr Anthony Smith confirmed that the Complainant was due to be paid for 10 days annual leave. Mr Smith also confirmed that the Complainant had knowledge of the Respondent’s grievance procedure, but he did not utilise this.

The Complainant did not have any questions for the Respondent’s representatives.

CA-00059272-001: This is a complaint seeking adjudication by the WRC under Section 27 of the Organisation of Working Time Act, 1977.  It is not disputed that the Complainant is due to receive payment for 10 days annual leave which he had accrued at the time of his resignation on 15/06/2023.

Working time and other related matters such as annual leave entitlements are regulated by the Organisation of Working Time Act, 1997, which implements in Ireland the requirements of the Directive 2003/88EC of the European Union (the Working Time Directive).

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(a)    4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment).

(b)    One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)     8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

This Act (20 (1)) also deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions, but which are not relevant to this complaint.

Section 23 of the Act outlines the compensation to be given when an employee ceases to be employed:

23. (1) Where –

a)      an employee ceases to be employed, and

b)      the whole or any portion of the annual lave in respect of the current leave year or, in the case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave or both those years, remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

I find that the Complainant is due payment for 10 days annual leave and this should have been paid when the Complainant’s employment ceased.  This complaint is well founded, and the Respondent is directed to pay the outstanding amount to the Complainant within 42 days of the date of this decision.

CA-00059272-002:  The Complainant has submitted a complaint seeking adjudication arising from his constructive dismissal from his employment with the Respondent on 15/09/2023. 

The Law:

Section 1 of the Unfair Dismissals Act 1977, as amended, in relevant part, states as follows:

(1)                “In this Act –

“dismissal” in relation to an employee means – (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) 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, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

As the Adjudication Officer I am obliged to establish if Section 1(b) of the Act of 1977 operates to validate this complaint of constructive dismissal. 

Considering the statutory definition contained in Section 1 of the Act of 1977 as amended, and the authoritative principles adopted by the relevant fora and the Courts, the onus lies with the Complainant to demonstrate that his resignation was justified.

In supporting his decision to terminate his employment the Complainant will have to prove that the circumstances of his dismissal met the tests as set out by Lord Denning MR in Western Excavating (ECC) v Sharp (1978) IRL 332, and described as follows:

“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 entitles to treat himself discharged from any further performance.”

And the reasonableness test which was expressed in the following terms:

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be expected to put up with it any longer, the employee is justified in leaving.”

Both of these tests have been followed by various Irish authorities.

In relation to breach of the Complainant’s contract of employment the Complainant’s evidence was that no breach occurred. 

In examining the conduct of the employer there was evidence that the Respondent had initiated an investigation and placed the Complainant on paid suspension pending the outcome of this investigation.  The complaint tendered his resignation on 15/09/2023 after his initial meeting with the Respondent.  The Complainant did not raise any grievance in relation to the conduct of the investigation or his suspension.

In reviewing the “reasonableness test” the Supreme Court in Berber V Dunnes Stores [2009] E.L.R. 61 in considering the reasonableness test stated:

“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.”

There is no doubt that this was a difficult situation for the Complainant.  He had worked for the Respondent for just over 2 years. I am satisfied that the Respondent was entitled to conduct the investigation and there were no issues raised in relation to this by the Complainant.

Based on the evidence and the authorities cited, I find that the Complainant has failed to meet the tests set out in Western Excavating (ECC) v Sharp 91978) IRL 332. 

It is also well established that a Complainant is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”.

I do not find that the complaint of constructive dismissal taken under the Unfair Dismissals Act to be well founded.

CA-00059272-001:  I have decided that this complaint is well founded, and the Respondent is directed to pay the outstanding amount, equivalent to ten days pay, to the Complainant within 42 days of the date of this decision.

CA-00059272-002:  I have decided that the complaint of constructive dismissal taken under the Unfair Dismissals Act not to be well founded.

Holiday pay – cessation of employment. Constructive dismissal.