Complainant

Respondent

Parties

Conor  Saruwatari

Indeff Limited

Representatives

  Self-Represented

 No-Appearance

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-00067811-001

02/12/2024

The Complainant commenced employment with the Respondent on 5 December 2022 as a Medior MES Engineer at a monthly salary of €4,416.67. His work involved implementing and maintaining manufacturing execution system (MES) software for industrial clients in Ireland and abroad. The Complainant is claiming constructive dismissal under the Unfair Dismissals Act 1977, as amended, (“the Act) on the basis that he had no option but to resign because he was not being paid a salary in the latter part of 2024.

Difficulties arose in mid-2023 when the Respondent began to pay staff salaries late. From June 2023 onwards, the Complainant’s salary was consistently delayed, sometimes by several weeks. He gave evidence that he and other employees repeatedly contacted management about the delays. The Respondent’s Chief Executive Officer, Mr Peter Bresseleers, issued a signed written undertaking to employees confirming that salaries would either be paid on time or that notice of any delay would be communicated. That assurance was not honoured, and delays persisted throughout 2023 and into 2024.

The Complainant submitted evidence of a series of emails he sent to management, including correspondence dated 11 December 2023, 2 January 2024, and 29 January 2024, all seeking confirmation of payment and raising concerns about continuing breaches of contract.

By September 2024, salary payments ceased altogether. The last payment received by the Complainant was on 5 September 2024. On 4 September 2024, the CEO wrote that Irish salaries would be processed that day, but no such payment was made. The Complainant continued to correspond with the CEO and HR in September and October 2024, but no further payments were forthcoming.

On 22 October 2024, the Complainant submitted his resignation in writing to the Respondent’s HR department, citing non-payment of wages as a fundamental breach of contract.

The Complainant testified that the failure to receive wages caused severe financial hardship and resulted in the rejection of his mortgage application due to lack of consistent income. He explained that the continued breach of the most basic term of his employment contract left him with no option but to resign.

After resigning, the Complainant actively sought new employment and made multiple applications over a three-month period before securing a position with Imperium Solutions in February 2025 at an annual salary €3,000 lower than his previous rate.

He seeks compensation for the financial loss suffered as a result of his constructive dismissal.

In the absence of any appearance or submission by the Respondent, I accepted the Complainant’s uncontested evidence as credible and consistent.

Section 1(b) of the Unfair Dismissals Acts, 1977–2015 defines a constructive dismissal as:

“the termination by an employee of his contract of employment, 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.”

The seminal case referred to by authorities both in Ireland and the UK is Western Excavating (ECC) Ltd v Sharp[1978] IRLR 332 when  Lord Denning MR described the tests as followed:

“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.”

It is well established that the failure to pay wages, or to pay them on time, strikes at the heart of the employment relationship. It is a core contractual obligation, and persistent failure to do so constitutes a repudiatory breach.

In this case, the Respondent repeatedly failed to pay the Complainant’s wages, culminating in two months of total non-payment. The Complainant raised the issue repeatedly and provided the Respondent ample opportunity to remedy the breach. No payments were made and no credible explanation was offered.

The Respondent’s conduct amounted to a fundamental breach of the contract of employment, entitling the Complainant to treat the contract as terminated. His resignation was therefore not voluntary but was a direct consequence of the Respondent’s conduct. Accordingly, I find that the Complainant was constructively dismissed, and that the dismissal was unfair within the meaning of the Act.

Redress:

Redress for unfair dismissal is provided for under Section 7 where it provides: - 

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (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 17of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, 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...

The Complainant has sought compensation. Under Section 7(1)(c) of the Acts, compensation is based on the financial loss sustained due to the dismissal, subject to a maximum of 104 weeks’ remuneration. The Complainant was unemployed for three months following his resignation and made genuine efforts to mitigate his loss. I am satisfied that he did so based on his plausible evidence and documentation submitted after the hearing.  He later obtained employment at a salary €3,000 less per annum. I calculated loss based on the following formula:

Loss of salary for three months:

€4,416.67 × 3 = €13,250

Ongoing loss of earnings over two years (€3,000 per annum):

€3,000 × 2 = €6,000.

Total loss: €13,250 + €6,000 = €19,250

I am satisfied that this amount reflects a fair and reasonable measure of the Complainant’s actual loss.

For the reasons outlined above, I find that the Complainant was constructively dismissed by the Respondent and that the dismissal was unfair. I direct the Respondent to pay the Complainant the compensatory sum of €19,250.

Unfair Dismissals Act 1977. Constructive Dismissal.