ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00045901

Parties:

Complaints:

Date of Adjudication Hearing:  02/04/2024, 18/06/2024, 20/11/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following 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 complaints are that the Complainant was unfairly dismissed by way of constructive dismissal, that unlawful deductions were made from his wages, his terms of employment were changed without notification and he did not receive his entitlements to annual leave and public holidays.

Summary of Complainant’s Case:

The Complainant was employed as an electrical supervisor with the Respondent from February 2021. The Plaintiff’s most recent statement of written terms of his employment was issued to him on the 27th of April 2022 and sets out, inter alia, that his hourly rate of pay was €33.03 and his normal working week was to consist of 39 hours inclusive of one 15 minute paid lunch break each day. While the most recent statement of terms and conditions of employment purports to deprive the Complainant of the benefit of his continuous service up until that date, the Complainant has been continuously employed by the Respondent since February 2021 and was paid via payroll from 15th February 2021.

On or about the 20th of March 2023 the Complainant suffered a family bereavement. The Complainant informed the Respondent that he would have to take week off work in the circumstances and requested that he could take a week of annual leave. The Respondent informed him that the request could be facilitated.

When the Complainant received his payslip on the 24th of March 2023 he noticed that the Respondent had reduced his hourly rate to €25.72 in respect of the week starting the 20th of March 2023. This resulted in an unlawful deduction of 20% of from the Complainants pay.  The Complainant queried this error immediately with the Respondent. The Complainant made it clear to the Respondent how fundamental a term his rate of pay was.

The Complainant also reported hostility from a fellow Electrical Supervisor he had to work with on the site of the NCH.

THE FACT OF DISMISSAL

While the fact of dismissal is not frequently in dispute between the parties, it has come before the Labour Court on a number of occasions. 

In AA Euro Recruitment Ireland LTD v Padraig Cotter UDD2228 the Labour Court held that where the fact of dismissal is in dispute, it is a matter for the Complainant to establish as “a matter of probability that his employment came to an end in circumstances amount to a dismissal as the term is defined in the Act”. 

It is common case that the Complainant’s last day of work with the Respondent was the 31st of March 2024. This is accepted by the Respondent throughout their submissions.  The Respondent provides no authority in statute or caselaw for their assertion that the Complainant could have remained in employment with them up until September 2023 (as outlined at paragraph 112 of the Respondent’s Supplemental Submissions) despite not being paid, required to work or subject to any of the obligations arising from the contract of employment during this period.  Neither the Respondent can point to no contractual basis for the Complainant being on unpaid leave during this period. The Respondent did not invoke the disciplinary mechanism open to it where, in line with the appropriate procedures, an employee could be placed on unpaid suspension for abandonment of duties, were this the case.

CONSTRUCTIVE DISMISSAL

As outlined in the Complainant’s submissions, the case that is being made is that of constructive dismissal on the basis of fundamental breach of contract.

Section 1 of the Unfair Dismissal’s Act 1977 provides that this can be the termination by the employee with or without giving prior notice of the termination.  

Where an employee makes a claim for constructive dismissal, they bear the burden of proving that one of the tests outlined in Section 1 has been met.

• (i) The conduct of the employer was so unreasonable it was reasonable for the employee to leave (the reasonableness test).
• (ii) They were entitled to terminate under the contract test. It is submitted that the supplemental submissions of the Respondent in so far as they relate to the application of test (i) are not relevant in circumstances where the Complainant has very clearly made a case that the second test (the contract test) is the appropriate test in the circumstances of the case.

The Respondent accepts and understands that the nature of the claim is that of a breach relating to a fundamental term– at paragraph 8 of the supplemental submission the Respondent accepts that the unfair dismissal case arises from the deductions/reduction in pay.  For the avoidance of doubt, the Complainant does not make the case (as is suggested by the Respondent) that the conduct of Mr T resulted in the fundamental breach of contract which brought about the termination of the employment.

Where the Respondent relies on the evidence of Ms C in relation to allegations concerning a phone call between the Complainant and Ms C the following is submitted:

The primary complaint before the Workplace Relations Commission is a claim of unfair dismissal and the fact of dismissal is in dispute. In circumstances where the complaint of Ms C was made 4 months after the period in which the dismissal occurred, it is not relevant under the test set out in DPP v MJ [2014] IECCA 21 and is not admissible before the WRC.

The Complainant’s claim is for loss of earnings from 31st March 2023 until 7th of July 2023.

Summary of Respondent’s Case:

Mr. Ian Church (hereafter “the Complainant”) started employment in 2019 working as an independent contractor and as an employee during the years.

The last contract of employment between Respondent and Complainant started on the 27th of April 2022.

On the 16th of May 2023, the Complainant lodged complaints with the WRC under Section 6 of the Payment of Wages Act, 1991, Section 8 of the Unfair Dismissal Act, 1977, Section 7 of the Terms of Employment (Information) Act, 1994, and Section 27 of the Organisation of Working Time Act, 1997. The Respondent strongly denies these allegations.

Preliminary Issues

The Complainant has taken a claim for Unfair Dismissal (Constructive Dismissal) under the Unfair Dismissal Act, 1977 on the 16th of May 2023.

The Respondent submits that the Complainant had not resigned from his employment with the Respondent at the date of the lodgement of the claim. It is to be noted that the Claimant had not filled in the claim papers as regards Date of Employment Ended (if applicable).

It is submitted that the Complainant’s rate of pay was mistakenly reduced in March 2023.

It is submitted that the Complainant walked out from the site in National Children’s Hospital in week ending on the 31st of March due to wrong rate received on his payslip.  However, it is respectfully submitted that the Complainant did not resign nor gave notice to terminate his employment.

On the contrary, the Complainant was actively engaging with the Respondent to be allocated to other sites to provide his services as an employee over the next couple of months such as Grand Canal Harbour Site and Sweden.

The Complainant himself admitted in the claim papers “I am seeking work from them, on Friday the 12th that morning HPL Office staff requesting information to go to work in Sweden to fly out that Sunday night 14th or Monday or Tuesday couldn’t give me a definite answer with minimum notice. I sent all relevant information back to them on Friday and I’ve still no contact from company.”

On this note, the Respondent respectfully submits that the Complainant was still engaging with the Respondent to be allocated on sites to perform work.  In these circumstances, it is respectfully submitted that the Complainant had not submitted his resignation or the notice of termination of his employment to the Respondent by the date of the lodgement of the claim.

The Respondent submits that the Complainant was active in the Respondent until the 5th of June, when he requested to be removed from the Respondent’s employment records.

In light of the above, it is respectfully submitted that the Complainant has in fact pre-lodged his claim for Unfair Dismissal as no such termination had taken place as of the 16th of May 2023 and consequently the claim is improperly constituted under the Unfair Dismissals Act.

Case law was submitted in relation to the pre-lodgement of claims.

Failure to exhaust internal procedures

The Complainant has never raised a grievance regarding alleged underpayment of salaries, annual leave, bank holiday, or change of position and as such, it is respectfully submitted that he has failed to exhaust the procedures open to him and his complaints must fail.

Case law was submitted in relation to failure to exhaust internal procedures.

Without prejudice to the preliminary issues outlined above, the Respondent respectfully submits that there are no breaches to employment rights nor employment legislation on this matter.

Payment of Wages Act, 1991

The Complainant submits that he is owed €7.31 for alleged unlawful deduction made on the 24th of March 2023.  It is submitted that the Complainant walked out site in National Children’s Hospital due to the wrong rate submitted on his payslip.  The Respondent respectfully submits that the Complainant’s rate of pay was mistakenly reduced at €25,72 for 3 weeks in week 12 ending 17.03.2023, in week 13 ending 24.03.2023 and in week 14 ending 31.03.2023.  The Respondent submits that the rate of pay was rectified, and differences were paid on the 19.05.2023.

The Respondent submits that it was a mistake and that the Respondent’s Director apologised to the Complainant.  The Respondent submits that the differences have been paid and therefore the instant claim should fail.

Constructive Dismissal – Unfair Dismissal Act, 1977

As outlined above, the Complainant has never resigned or terminated his employment by the time of the lodgement of the claim, thus, there are no grounds for a Constructive Dismissal claim.

It is respectfully submitted that the Complainant walked out of site in National Children’s Hospital in week ending on 31.03.2023 due to a wrong rate of pay on his payslip.

It is submitted that the Respondent’s Director was reviewing rates and mistakenly thought that the Complainant’s rate was referring to a night shift rate of €33.03 per hour and informed payroll to reduce his rate to day shift rate of €25.72 per hour.

In these terms, it was unnoticed at that moment that the Complainant was on Chargehand rate of €33.03 per hour and the payroll administrator changed his rate as per the Director’s request.  It was only when the Complainant raised the issue that he should be on the Chargehand rate of pay of €33.03 that the Respondent realised that it was a mistake changing his rate of pay.  It is respectfully submitted that the three weeks the Complainant had been paid at the rate of €25.72 (week 12 ending 17.03.33, week 13 ending 24.03.23 and week 14 ending 31.03.23) were rectified and paid the difference on week ending 19.05.2023 with the working hours, holidays and bank holidays back dated to the correct rate of €33.03. 51. As outlined above, this was a mistake and the Respondent’s Director apologised to the Complainant.

Due to walking out site in National Children’s Hospital in the week ending in March 2023, the Complainant was absent from work for a number of weeks insofar as it may take a couple of weeks and can be delays getting on to new sites depending on training, induction and availability. It is therefore submitted that the Complainant was in constant contact with the Respondent back and forth for the few weeks he was absent after 31st March. During this period, the Respondent tried to induct the Complainant on to the Grand Canal Harbour Site, but the Complainant did not have the correct training with heights to get on this site.

On the 12th of May 2023, the Respondent then attempted to set up the Complainant to go to a site in Sweden, however, the Complainant sent the wrong documentation to the staff member who process the paperwork to induct employees on the construction sites – and therefore, the Respondent could not proceed with the “On Site Induction” as regards the new project in Sweden. 

The Claimant became quite abusive to the staff member.  Consequently, the Respondent submits that no confirmation was given that the Claimant was going to Sweden in the following week as he has never sent the right documentation to be inducted on that site. The Claimant is fully aware that induction is fundamentally necessary to start in a new site, and he was not sent to any induction to work in Sweden, nor received any flight details or any confirmation whatsoever on this.  Therefore,   the Claimant has never received confirmation that he was going to Sweden.  After the abusive phone call on 12th May 2023 with member of staff, the Respondent did not contact the Complainant again to let him calm down.  In the following week, the Respondent was notified as regards the instant complaint, which was a surprise as the Complainant seemed quite friendly with the Respondent’s Director in the text messages.

Findings and Conclusions:

CA-00056691-001  Payment of Wages Act 1991

The Complainant’s complaint was that his hourly rate was reduced from €33.03 by €7.31 to €25.72.  The evidence of the Respondent was that the reduction was an administrative error which occurred during a three-week period and was refunded to the Complainant.  I find the complaint to be not well founded.

CA-00056691-002  Unfair Dismissals Act 1977

The Complainant‘s complaint was that he was unfairly dismissed by way of constructive dismissal.   There were many issues in dispute between the parties, including a reduction in his rate of pay, his walking off the job due to this and the Respondent’s attempts to have him placed in another site, including relocation to Sweden.  There was also some disagreement between him and his colleague on the NCH site before he stopped working there in March 2023.  It is noteworthy that the Respondent did not invoke any disciplinary procedure due to him walking off the site. The Respondent also tried to place the Complainant in at least one other site in Dublin but this did not materialise due to qualification requirements for working at heights.  The main issue was that the Complainant walked out of his employment on 31st March 2023 following a dispute about rate of pay.  There were a number of issues raised by the Respondent relating to the nature and timing of the constructive dismissal complaint.    I am satisfied that at the time of the last date of his employment he was an employee and his last day of working with the company was 31st March 2023.  The issue now to be considered was he entitled to terminate his employment in accordance with the provisions of the Act?

The definition of constructive dismissal as provided for in the Unfair Dismissals Act 1977 (as amended) is:

“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 onus of proof rests with the Complainant to prove that the conduct of the employer was so unreasonable that that the employee cannot fairly be expected to put up with it any longer, and the employee is justified in leaving.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment.  In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

The burden of proof, which is a very high one, lies on the complainant.   As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is an “and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“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 I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

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

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

In this instant case, I note the sudden and unilateral reduction in the Complainant’s rate of pay which is a significant breach going to the root of the contract of employment.  Thus the ‘contract test’ has been proven. 

In considering the ‘reasonableness test’, I note that it took a number of weeks for the Respondent to resolve the reduction in pay issue.

In relation to exhausting internal procedures, I note that no action was taken by the Complainant to lodge an internal grievance.  However, he made numerous enquiries about the pay issue and suffered some understandable frustration about difficulty in getting answers.    

In this case, I note the Complainant made very clear his dissatisfaction at the reduction in rate of pay and it was incumbent on the Employer to rectify this as a matter of urgency.  In that circumstance, I find that the lack of formal invocation of internal procedures was not fatal to the Complainant’s case.      I find the complaint of unfair dismissal to be well founded.

I consider compensation to be the appropriate remedy.  I note the difficulties encountered when the Respondent tried to place the Complainant at another site.  I consider the Complainant contributed somewhat to his situation especially in his lack of cooperation with the Sweden documents.                 I award the Complainant the sum of €5,750.

CA-00056691-003  Terms of Employment (Information) Act 1994

The Complainant’s complaint is that he was not notified of a change in his terms and conditions of employment.  This complaint relates to the reduction in the rate of pay and the contention by the Complainant that his job was changed from Electrical Supervisor to Electrician.  I have found no evidence to support this contention and I find the complaint to be not well founded.

CA-00056691-004  Organisation of Working Time Act 1997

The Complainant’s complaint is that he was not given the benefit of the Act as it related to public holidays.  The last day the Complainant worked for the Respondent was 31st March 2023.  No evidence has been submitted to support a breach of the Act.  I find the complaint to be not well founded.

CA-00056691-005  Organisation of Working Time Act 1997

The Complainant’s complaint is that he was not given the benefit of the Act as it related to annual leave.   The last day the Complainant worked for the Respondent was 31st March 2023.  No evidence has been submitted to support a breach of the Act.  I find the complaint to be 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.

CA-00056691-001  Payment of Wages Act 1991

For the reasons cited, I have decided that the complaint is not well founded.

CA-00056691-002  Unfair Dismissals Act 1977

For the reasons cited I have decided that the complaint is well founded and I award the Complainant the sum of €5,750 compensation.

CA-00056691-003  Terms of Employment (Information) Act 1994

For the reasons cited, I have decided that the complaint is not well founded.

CA-00056691-004  Organisation of Working Time Act 1997

For the reasons cited, I have decided that the complaint is not well founded.

CA-00056691-005  Organisation of Working Time Act 1997

For the reasons cited, I have decided that the complaint is not well founded.

Dated:   5th of February 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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