ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00043930

Parties:

	Complainant	Respondent
Parties	Olivera Tranpa	Maybin Support Services (Ireland) Limited

Representatives

Ms. Emese Baranyi, Immigrant Advice Bureau

Mr. Dermot O’Loughlin, Alpha Employment Representation Services

Complaints:

Act	Complaint 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-00052793-001	14/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00052793-002	14/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997	CA-00052793-003	14/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00052793-004	14/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00052793-005	14/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00052793-006	14/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00052793-007	14/12/2022

Date of Adjudication Hearing: 27/10/2023

Workplace Relations Commission Adjudication Officer: Brian Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant commenced employment with the Respondent on 1st December 2020. The Complainant was a part-time, permanent employee, in receipt of an average weekly payment of €348.18. The Complainant’s employment was terminated on 15th August 2022.

On 14th December 2022 the Complainant referred the present set of complaints to the Commission. Herein, the Complainant alleged that she was constructively dismissed as a consequence of the Respondent’s persistent failure to correctly record and compensate her working hours. In denying this complaint, the Respondent stated that the Complainant’s queries were answered at the relevant time and that all her statutory entitlements were respected.

A hearing in relation to this matter was convened for, and finalised on, 27th October 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

In advance of the hearing, both parties issued extensive submissions. These submissions were expanded upon and contested during the hearing. The Complainant gave evidence in support of her complaints, while an Account Manager for the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross-examination by the opposing side.

No issues as to my jurisdiction to hear the matters listed above were raised at any stage of the proceedings.

Summary of the Complainant’s Case:

The Complainant commenced employment with the Respondent as a cleaning operative on 1st December 2020. At the outset, the Complainant’s term of employment was contingent on a specified purpose, in this case the busy Christmas season. Nonetheless, this period of time elapsed and the Complainant continued to be rostered by the Respondent. The Complainant never received an updated contract of employment to reflect her permanent status.

While the Complainant was initially engaged as a part-time employee, she soon began to receive full-time hours. Part of these hours involved working in the late evening, with the Complainant stating that she was required to work until 1 a.m. on several occasions. The Complainant submitted that she did not receive the correct statutory payment for these night hours.

Throughout her employment, the Complainant encountered ongoing difficulties with the clocking system operated by the Respondent. As the Respondent company offered cleaning services to third party clients, the Complainant was obliged to use the client’s clocking facilities for her evening shift. This clocking system would consistently fail to record the Complainant’s hours correctly, and would under calculate her hours on an ongoing basis. In circumstances whereby this incorrect recording would be used to calculate the Complainant’s wages, she routinely suffered deductions in her wages for the relevant period.

In circumstances whereby the Complainant was underpaid in respect of her wages, she would contact her line manager with a query and, usually, the matter would be resolved with reasonable efficiency. However, the Complainant stated that towards the end of her employment, these responses from management began to take longer and would frequently be incorrect. The Complainant gave evidence regarding a particular incident that occurred in April 2022 whereby she receive a significant underpayment in respect of her working hours. The Complainant stated that she brought this issue to the attention of a newly appointed line manager. When she received no timely response from this person, she then escalated that matter to another manager within the organisation and was informed that the matter would be resolved shortly thereafter. Despite such assurances on the part of management, issues continued to arise regarding the Complainant’s wages, with a further issued being raised in July 2022.

These matters cumulated in July 2022, with the Complainant issuing a lengthy breakdown of the unpaid wages over the last number of months. While this was ongoing, the Complainant believed that she could not continue in a role that routinely failed to pay her for hours worked. In this regard, she looked for an alternative role elsewhere. When the Complainant secured such a role in August of 2022, she gave notice of her intention to resign her employment via text message. By response, her line manager asked for confirmation of her resignation in writing, which the Complainant duly supplied. Thereafter, the Respondent failed to pay the Complainant’s outstanding balance of annual leave. While the same was outstanding on the date of lodgement of the complaint, it was accepted that the same was paid by the date of the hearing.

By submission, the Complainant stated that she was forced to resign her contract of employment in circumstances whereby the Respondent persistently and routinely failed to properly pay wages due and owing to her. She submitted that she brought this issue to the attention of numerous managers within the Respondent organisation, however rather than solve the issue, it apparently became worse towards the end of her employment. Having regard to the foregoing, the Complainant submitted that her complaint under the Unfair Dismissals Acts should succeed and be deemed to be well-founded.

Summary of the Respondent’s Case:

By response, the Respondent denied the Complainant’s allegations, particularly the complaint under the Unfair Dismissals Acts.

In evidence, an Account Manager for the Respondent gave evidence as to their method of operation. In this respect, he submitted that for some accounts, the Respondent relied on third party recording systems to record working hours. He stated that while these systems are usually accurate, an issue arose with one of the systems used at one of the sites visited by the Complainant. In this regard, he stated that it was not unusual for issues to arise regarding the recording of employee’s hours and the hours actually worked. He stated that in this respect, it was not unusual for management within the Respondent to have to complete a reconciliation process regarding the hours claimed by an employee, the hours recorded by a system, and the hours actually worked. He stated that he always endeavoured to complete such reconciliations in good time but conceded that he was not the account manager assigned to the Complainant’s contract for much of her employment.

The witness stated that in August 2022, he understood that the Complainant had secured alternative employment and would be leaving the company. This did not cause concern for the witness, as employees frequently left and joined the company to suit their own requirements. In this respect, he submitted that the Complainant confirmed this position by text message and, on the request of management, confirmed the same in writing. Again, the witness stated that no issues were raised in either of these communications to indicate that the Complainant had any grievance leaving the organisation, and she was processed as a leaver in the normal fashion.

By submission, the Respondent stated that at the commencement of the Complainant’s employment, she received a contract and employee handbook. They submitted that this handbook contained an extensive grievance procedure to be utilised in such circumstances. Having regard to the foregoing, they submitted that the Complainant failed to instigate a grievance in accordance with this procedure, either during the currently or at the conclusion of her employment. As a consequence of the foregoing, the Respondent submitted that the Complainant’s application under the Unfair Dismissals Act should fail.

Findings and Conclusions:

CA-00052793-004 – Complaint under the Terms of Employment (Information) Act

The Complainant accepted she received a contract of employment at the commencement of her employment. In these circumstances, I find that the Complainant under Section 3 of the Act is not well founded.

CA-00052793-005 – Complaint under the Terms of Employment (Information) Act

Notwithstanding the foregoing, the Complainant submitted that her initial contact of employment was subject to a specified purpose. She submitted that this specified purpose expired without the relevant term being amend.

In this regard, Section 5(1) of the Act provides that,

“..whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3..the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) the day on which the change takes effect…”

It is further noted that Section 3(1)f of the Act provides that an employee is to receive a written statement regarding,

“..in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires”.

In circumstances whereby this term was amended without written notification, I find that the complaint is well-founded.

CA-00052793-007 – Complaint under the Protection of Employees (Fixed-Term Work) Act

Regarding this particular complaint, the Complainant alleged that the Respondent failed to inform her that she was engaged under a permanent contract. In this regard it is noted that the Respondent accepted that the Complainant was engaged on a permanent contract and that her contract was simply not updated in this regard.

In circumstances whereby this allegation is covered by the complaint above, I find that the same is not well-founded.

CA-00052793-001 – Complaint under the Organisation of Working Time Act

In respect to this particular complaint, the Complainant alleged that she worked excessive night hours.

In this regard,

Section 16(1) defines “night worker” as,

“…an employee—

(a) who normally works at least 3 hours of his or her daily working time during night time,

and

(b) the number of hours worked by whom during night time, in each year, equals or exceeds 50 per cent. of the total number of hours worked by him or her during that year.”

The evidence of the Complainant was that she was normally rostered to work until midnight. Notwithstanding the same, she submitted that she would frequently be required to work beyond this time and occasionally until 1a.m. While this may be the case, it is apparent that this arrangement does not qualify the Complainant being an “night worker” for the purposes of the impleaded Act.

Having regard to the foregoing, I find that this complaint is not well-founded.

CA-00052793-003 – Complaint under the Organisation of Working Time Act

Regarding this particular complaint, the Complainant alleged that she was not placed on the appropriate band of hours. In this respect, the Complainant that her initial contract of employment provided for 23 hours of work. Thereafter, the Respondent increased the same to 39 hours per week, in contravention of this terms.

In this regard, Section 18A(1) of the Act (as amended) provides that,

“Where an employee’s contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours specified in the Table to this section.”

Subsection 2 of this provisions goes on to state that,

“…where an employee believes that he or she is entitled to be placed in a band of weekly working hours, he or she shall inform the employer and request, in writing, to be so placed.”

Having regard to the agreed sequence of events outlined by the parties, it is apparent that the Complainant did not make such a request in accordance with this provision. Having regard to the foregoing, I find that this complaint is not well-founded.

CA-00052793-006 – Complaint under the Unfair Dismissals Act

Regarding this complaint, which was the primary complaint pursued at the hearing, the Complainant alleged that her conditions of employment became intolerable to the point whereby she was entitled to resign her contract of employment and consider herself to be constructively dismissed. While the Respondent denied this allegation on a substantive basis, they submitted that in circumstances whereby the Complainant failed to raise a grievance in accordance with the relevant internal policies, the application should fail.

In this regard, Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal in the following terms,

“…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 Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘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, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

To succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that,

“…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that,

“…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

And,

“…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

Regarding the present case, it is apparent that the Complainant was engaged in an ongoing dispute with the Respondent regarding the recording of her hours of work and the correct payment in respect of the same. While the evidence of the Respondent was that a certain amount of reconciliation with third party records was required in relation to the same, it is apparent that the Complainant experienced persistent delays and incorrect calculations in respect of the same towards the end of her employment. In this regard, it is further apparent that the Complainant repeatedly raised this issue with her line manager and then escalated the matter to senior management following her dissatisfaction with the response as received.

Perhaps unsurprisingly, while these issues were ongoing, the Complainant was engaged in a search for alternative employment. It is apparent that the Complainant secured such an alternative role in August 2022, and duly issued notice of her resignation. The position of the Respondent in this regard is that the Complainant terminated her contract without raised a formal grievance in accordance with the internal policies, and as a consequence of the same, she did not meet the test outlined in the authorities reference above.

Having considered the argument advanced by the Respondent, I find that I do not agree with the same. In this regard, it is common case that the Complainant was involved in an ongoing dispute with the Respondent regarding one of the core terms of her employment. While the Complainant did not reference the wording of the internal policies, she did raise this issue in writing with management on numerous occasions, and they could be under no illusions as to the Complainant’s dissatisfaction regarding these issues on her resignation. This being the case, any reasonable employer would invite the Complainant to engage with their internal policies prior to their leaving the organisation. In circumstances whereby this did not occur, I find that the Complainant left her employment as a consequence of these issues. I further find that the she brought these issues to the attention of the Respondent in writing on numerous occasions, prior to her resignation. In circumstances whereby the issued raised by the Complainant were of fundamental importance to her, and related to a core term of her contract, I find that she has discharged the burden of proof imposed by Section 1 of the Act. Having regard to the foregoing, I find that the complaint was unfairly dismissed within the definition of the Act and her complaint is well-founded.

CA-00052793-002 – Complaint under the Industrial Relations Act 1946

Regarding this particular complaint, the Complainant alleged that she did not receive correct payment of annual leave, in accordance with the relevant ERO, on the termination of her employment. Notwithstanding the foregoing, the Complainant accepted that that all outstanding payments were discharged by the date of the hearing. Having regard to the foregoing. I find that this complaint is not well-founded.

Decision:

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.

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-00052793-004 – Complaint under the Terms of Employment (Information) Act