SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015
BARRY O'HEA TRADING AS O' HEA LANDSCAPING
(REPRESENTED BY THOMAS CUMMINS HUMAN RESOURCES CONSULTANT)
- AND -
(REPRESENTED BY DERMOT O'LOUGHLIN)
Chairman: Mr Foley
Employer Member: Mr Murphy
Worker Member: Ms O'Donnell
1. Appeal of Adjudication Officer Decision No. ADJ-00000610/RG.
2. The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 8th July, 2016 in accordance with Section 9(1) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 7th December, 2016. The following is the Determination of the Court:
This is an appeal by Mr Robertas Gailius (the Appellant) against the Recommendation of an Adjudication Officer in his claim that he had been constructively dismissed by his former employer Barry O’Hea t/a O’Hea Landscaping (the Respondent).
In a decision dated 4thJuly 2016 the Adjudication Officer found that the Respondent had been unfairly dismissed and awarded compensation in the amount of €2,000.
The Fact of Dismissal
The fact of dismissal is in dispute.
The Appellant was employed from 4thOctober 2014 until the termination of his employment on 5thFebruary 2016. It is common case that the Appellant was employed at a rate of pay of €10.50 per hour and that he was employed for 40 hours per week – a weekly pay rate of €420.00.
It is common case that the Respondent failed to pay his appropriate wage to the Appellant over an extended period of time and that on occasion no wages at all were paid to the Appellant. The Respondent at all times during the period of non / underpayment acknowledged the fact of non / underpayment but nevertheless the fact of non / underpayment persisted.
The Appellant, by letter dated 5thFebruary 2016, terminated his employment citing the fact that he had not received ‘the few month’s salary’.
Position of the Appellant
The Appellant contended that he had, as result of the behaviour of the Respondent, been left with no option but to terminate his employment and that in effect he was constructively dismissed. The Appellant stated that he had been unsuccessful in securing employment in the period since the termination of his employment.
Position of the Respondent
The Respondent acknowledged to the Court that the non / underpayment of wages was unacceptable but contended that the Respondent was a sole trader whose business was suffering financial difficulty at the time. The Respondent stated to the Court that he had continued to make payments in lieu of unpaid wages following the termination by the Appellant of his employment.
Discussion and Conclusions
It is common case that the Respondent failed over a period of time to pay to the Appellant the wages which were properly due to him. It is clear that the Appellant repeatedly raised the matter of non / underpayment of wages prior to taking a decision to terminate his employment.
It is clear that a foundation of the contract between employer and employee is that the employer will discharge the responsibility to pay wages which have been earned. In the within case the Respondent failed in that basic requirement.
The Court accepts that the Respondent’s failure over an extended period to pay wages which were properly due to the Appellant in full or occasionally at all undermined a basic tenet of the employment relationship in a manner which goes to the heart of the contract of employment. In those circumstances the Court finds that it was reasonable for the Appellant to terminate the contract of employment.
In those circumstances the Court concludes that the Appellant was constructively dismissed by the Respondent.
The Court, for the reasons stated above, finds that the Appellant was unfairly dismissed by the Respondent. In all of the circumstances the Court finds that the amount of compensation which is just and equitable is €13,000. The Respondent is required to make a payment in that amount to the Appellant. The decision of the Adjudication Officer is varied.
The Court so determines.
Signed on behalf of the Labour Court
13th December 2016______________________
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.