Complainant

Respondent

Parties

Radu  Zaharia

Derry Court Company Limited

Representatives

N/A

John Barry, MSS The HR People

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056777-001

22/05/2023

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

CA-00056777-002

22/05/2023

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

CA-00056777-003

22/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00056778-001

22/05/2023

The Complainant started his employment with the Respondent as a Cleaning Operative on 1 September 2010. He stated that he was constructively dismissed on 23 November 2022. He also alleged that he did not receive a written statement of his terms and conditions of employment and that he was not paid in respect of overtime that he worked.

CA-00056777-001:

The Complainant did not give any evidence of any overtime he worked on 23 November 2022, which was the last day he attended for work with the Respondent.

CA-00056777-002:

The Complainant stated that he had initially started working with ISS in 2010 prior to his employment transferring to the Respondent in 2014. He remained based at the Garda Offices on Harcourt Street following the transfer. He highlighted several issues that he stated caused him to terminate his employment with the Respondent.

In the first instance, he alleged that he usually acted up as the supervisor when the supervisor was on holidays but was only paid for fulfilling the acting up duties on one occasion.

He also stated that even though he was not paid as a supervisor, he was required to train new colleagues who were paid the same as him.

As well as not being paid when acting up and having to train new colleagues, the Complainant stated that he had ongoing difficulties with his supervisor which started in 2015. Specifically, he stated that she continually criticised him and was very jealous of him because he was more respected by the Gardai than she was. He alleged that he raised these issues informally but was told that he didn’t like it there, he could find a job elsewhere.

He also stated that his base of employment moved from the Garda Offices on Harcourt Street to Military Road when the Gardai moved to a new building. Further to this move, he was required to work additional hours but stated that he asked for more people to assist him because he could not manage all of the increased workload.

The Complainant also highlighted that he was no longer allowed to park at Garda HQ when he moved to Military Road because the Respondent wasn’t allowed any more parking spots there even though there were plenty spaces available.

CA-00056777-003

The Complainant did not give any evidence of a breach of the Act on 23 November 2022, which was the last day he attended for work with the Respondent.

CA-00056778-001:

The Complainant stated that he did not receive a written statement of his terms and conditions of employment.

CA-00056777-001:

The Respondent stated that the Complainant did not work any overtime on 23 November 2022.

CA-00056777-002:

In 2014, the Respondent was awarded the contract for cleaning services at Harcourt Garda Station. This contract commenced on 3 June 2014. The Complainant transferred his employment to the Respondent on 3 June 2014 under the Protection of Employees (on Transfer of Undertakings) Regulations 2003, as a Cleaning Operative. All operatives on site were aware, for several years, that the Garda Harcourt site would move to a new location on Military Road. All operatives were formally notified in writing by the Respondent with confirmation of the move on 10 October 2022.

As the Complainant was a permanent Cleaning Operative for the CAB offices on Harcourt Street, it was natural that he would be the first to move with his department (CAB) on 28 October 2022.  The Complainant agreed to move. It should be noted that the Complainant was the only team member from the cleaning team who used parking at the Harcourt Street location.

On 21 November 2022, the Garda Estate planning advised the Complainant, onsite, that it would no longer be possible for him to park at the location as the footfall had increased and the building was being officially opened by the Minister of Justice on Friday 25 November 2022. The Complainant contacted his Regional Manager to complain that his parking was being removed.  The Regional Manager reiterated to the Complainant that he had already been made aware that parking would be removed as activity increased. However, he was able to offer the Complainant free parking at a location which was less than a 10-minute walk away and arranged to meet the Complainant and show him the new parking area.

On the following day, 22 November 2022, the Complainant advised the CAB department that he was unhappy that his parking was removed. The Estate Planning department notified the Respondent of this communication and noted it was not appropriate that the Complainant was speaking negatively on site, given that clear advance information had been given relating to parking and that he had been afforded free parking for as long as possible.  The Regional Manager made contact again with the Complainant to advise that the Respondent had sourced alternative parking, but the Complainant advised he was not happy that he had to walk between the two locations. The Regional Manager reiterated to the Complainant that arranging parking facilities was not under the remit of the Respondent, however he had been obliged by the Respondent in sourcing an alternative location.

On 23 November 2022, the Complainant sent an email to the Respondent stating the following ‘Reason of resignation : due to impossibility to park my car in the Garda Station spaces , I cannot afford to pay 10 euros / hour , on Super Value parking , to work 8 hours in Garda Station building . Due to my health problem, I cannot walk in cold and rain.'

On 24 November 2022, the Respondent phoned the Complainant to discuss his resignation email and why he left the site with no communication. The Complainant advised he was not happy about his parking. The Respondent again outlined the previous discussions and asked him to reconsider his resignation. The Respondent advised the Complainant that an alternative site could be considered, but the Complainant advised he only wanted a site that had parking facilities. The Respondent advised that this was very difficult as contractors generally do not have parking facilities on client sites but that they would be happy to review alternative options. The Complainant advised he would take some time to think about this.

On 29 November 2022, the Complainant sent an email to the Respondent which included several claims regarding his working conditions. On both 29 November and 30 November 2022, the Respondent phoned and messaged the Complainant but had no response. On 1 December 2022, the Respondent sent an email to the Complainant acknowledging his email and shared the Respondent’s Grievance procedure. The Respondent also scheduled a meeting for 8 December 2022 at 10am with the Complainant to discuss the issues highlighted and asked him to confirm his attendance. The Complainant replied to the email later that day thanking the Respondent and confirmed that he would be at the meeting. The Complainant subsequently sent another email that he would not be participating in any meeting after his resignation, and that his health did not allow him to deal with stress. He also advised that his decision to resign was final and irrevocable and that he was waiting for his P45.

On 10 December 2022, the Complainant sent an email to the Respondent acknowledging that he refused to meet previously, which was due to his health and doctor's advice, and requested if another meeting could be scheduled. On 12 December 2022, the Respondent replied with a suggested time for a meeting on 13 December 2022. The Complainant replied on 13 December 2022 confirming his attendance and that he would be bringing he wife with him.

On 13 December 2022, the meeting took place with the Complainant as well as three employees of the Respondent. The Complainant was informed that he had been aware months in advance that free parking was not available in the new Garda building, but that the Respondent had successfully managed to secure the Complainant a free parking space in a location that was less than 10 minutes’ walk from the site. The Respondent reiterated to the Complainant that sourcing car parking facilities for staff was not in their remit but highlighted that they had managed to solve this issue.

The Complainant advised his resignation was not only due to the parking issue, but also related to the fact that he felt his supervisor with whom he had worked with for over 7 years, was difficult to work with. The Respondent asked the Complainant for examples of how his supervisor was difficult, as he had never raised a grievance. The only issue the Respondent had on file was a local issue where the Complainant was upset that the supervisor held the cleaning stock in a lockable unit. The Respondent advised him that the supplies were provided by the Gardai and given that multiple contractors had entry to the building, it had been agreed between the Gardai and the Respondent that the supervisor would keep the supplies locked, but staff just had to ask for what they needed.

The Complainant also advised that the supervisor sat with him during his break time and spoke very loudly.  The Respondent advised the Complainant that there was nothing they were aware of which prevented him from having his break by himself. The Complainant also advised that he was unhappy that he had to train holiday cover onsite and that he was not paid to do this. The Respondent informed him that they always used a buddy system, which he followed for many years without issue. The Complainant also advised that he was not happy that he had to cover the supervisor whilst she was on holiday. Although the Respondent asked the Complainant for examples of this, he was unable to provide any example of extra work assigned to him while she was on annual leave.

The Complainant also advised that he assumed he would be given a supervisor’s role in the new building as he had recently completed a trainee supervisor programme. The Respondent advised that they had spoken with him weeks previously, and had confirmed that those who completed this programme would be interviewed for any supervisor roles that became available. It was also pointed out to the Complainant that he knew the supervisor and the full team cleaning team would be moving to the new building.

The Respondent also reminded the Complainant that a few weeks earlier they had offered him an opportunity to trial a new janitor role in the new building, given he was the first staff member to move. The Complainant had tried the janitor role for 2 days before advising that he did not like it and wanted to resume his original position as a cleaning operative. The reason he gave was that he did not like the responsibility of accepting the milk delivery or recording snagging issues. The Respondent advised the Complainant at the time that a supervisor’s role would require several responsibilities and that if he found milk and snagging an issue then perhaps it was premature to review him for a supervisor role.

The Respondent also reminded the Complainant that they met with him for a coffee beside the new building on the introduction day with the clients and congratulated him on successfully completing his supervisor programme and that he should monitor the Respondent’s website for upcoming vacancies and, with a progression plan, to become an Area Manager, which they would have fully supported. At this point, the Complainant’s wife stood up and advised that this was not over and that the Respondent would be hearing from a solicitor. The Respondent urged them to sit down and to allow further discussion but they refused and left the building.

On 14th December 2022, the Respondent sent a follow up email to the Complainant highlighting the disappointment that he would not return to work on any of their sites.  The Complainant did not reply.

CA-00056777-003:

As the Complainant did not give any evidence of any breach of the Act on 23 November 2022, the Respondent did not present any evidence in relation to this complaint.

CA-00056778-001:

The Respondent accepted that they did not provide the Complainant with a written statement of his terms and conditions of employment.

CA-00056777-001:

The Law:

I note firstly that this complaint was referred to the WRC on 22 May 2023 and that section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” 

It is a matter for the Complainant to establish that there is reasonable cause for the delay.  As no reasonable cause was presented by the Complainant for an extension of time, the cognisable period is the six-month period from 23 November 2022 to 22 May 2023. 

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated that a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

In the instant case, the Complainant stated that he was entitled to be paid overtime after having worked more than 25.5 hours each week.

As he was unable to present evidence of any overtime he worked on 23 November 2022, the only day he worked in the cognisable period, I find that this complaint is not well founded.

CA-00056777-002:

The Law

Section 1 of the Act defines what is commonly termed ‘constructive dismissal’ as follows: -

“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”

Findings

As dismissal as a fact is in dispute, it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal within the meaning of the Act.

The case law envisages two circumstances in which a resignation may be considered a constructive dismissal which is unfair within the meaning of the Act. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee would be entitled to regard himself as having been dismissed and that the dismissal was unfair. In the UK Court of Appeal, Lord Denning, in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332, held that

“an employer must be “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”.

A line of authorities has since established this decision as defining the “contract test”.

Secondly, an additional ‘reasonableness’ test may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, and, if so, he/she is justified in leaving. It is clear from the case law, that in addition to asserting that an employer acted unreasonably, an employee must also conduct themselves reasonably prior to resigning if they are to succeed in a case for constructive dismissal.

In this case, the Complainant stated in evidence, that his resignation was attributable to:

·        his increased workload

·        the Respondent’s failure to pay him as a supervisor when he worked as one

·        the removal of his parking space following the move to Military Road even though there were plenty of available spaces there  

·        the constant criticism of him by his supervisor

He has not submitted that the conduct of the Respondent amounted to a repudiation of his contract of employment which went to the root of, or undermined that contract in such a manner as would have permitted him to have regarded that contract as having been terminated.

The question I must therefore consider is whether it was reasonable for the Complainant to terminate his employment in circumstances where the conduct or behaviour of the Respondent was so unreasonable as to mean that it was reasonable for him so to do.

In normal circumstances, a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the grievance procedures, which the Complainant did not dispute he had been made aware of on 31st May 2014 in an on-line induction and had been shared with him by the Respondent when he informally raised concerns on 1 November 2022.

My view that he should have pursued his grievance through the grievance procedures is supported by the decision of the Employment Appeals Tribunal in Beatty v Bayside Supermarkets UD142/1987, where, in referring to the need to utilise grievance procedures, it was held that:-

“The Tribunal considers 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 475/1981.  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”.

The Supreme Court in Berber v Dunnes Stores [2009] IESC 10, 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 assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant”.

In the instant case, I note that the Complainant made a decision not to raise a grievance, despite having been given the opportunity to do so, and consequently deprived the Respondent of the opportunity to address any such concerns.

When considering the Respondent’s position and having heard evidence around the numerous informal attempts they made to engage with the Complainant, I find that they acted reasonably throughout.

While I have carefully considered the Complainant’s sworn evidence wherein he outlined several concerns that caused him to terminate his employment, I find, considering all of the foregoing, that he has failed to establish that the Respondent’s conduct amounted to conduct which undermined the contract of employment or otherwise was so unreasonable as to mean he was entitled to resign his employment and to have that resignation interpreted as an unfair dismissal within the meaning of the Act.

CA-00056777-003:

The Law:

This complaint was referred to the WRC on 22 May 2023. Section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” 

It is a matter for the Complainant to establish that there is reasonable cause for the delay.  As no reasonable cause was presented by the Complainant for the extension of time, the cognisable period is the six-month period from 23 November 2022 to 22 May 2023. 

As no breach of the Act was identified on 23 November 2022, the last day on which he attended work with the Respondent, I find that this complaint is not well founded.

CA-00056778-001:

The Law

The Terms of Employment (Information) Act 1994, as amended, (the “TE(I)A”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1) of the TE(I)A also obligates an employer to provide employees with a statement in writing concerning other aspects of an employee’s terms and conditions of employment within two months of commencing employment. This provision was recently amended to indicate one month.

Findings:

The Complainant stated that he did not receive an agreed statement in writing of his general terms of employment within one month of commencing his role.

As the Respondent did not dispute this, I find that this complaint is well founded.

CA-00056777-001:

I find that this complaint is not well founded for the reasons set out above.

CA-00056777-002:

I find that this complaint is not well founded for the reasons set out above.

CA-00056777-003:

I find that the Complainant was not unfairly dismissed for the reasons set out above.

CA-00056778-001:

I find that the complaint is well founded for the reasons set out above.

In making a decision on what compensation to award, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that the Respondent was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment must be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in respect of the within complaint. I therefore award the Complainant compensation of four weeks remuneration, namely €2,079.