ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00003200
A Legal Firm
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
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 21/09/2017
Workplace Relations Commission Adjudication Officer: Ray Flaherty
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,andfollowing 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.
The Complainant commenced working with the Respondent on 17 February 2014, in the role of Legal Secretary. The Complainant commenced her training, as an apprentice solicitor, in the Law Society on 9 September 2015. In this regard, the Respondent agreed to sign her Indentures and to be the Apprentices’ Master.
Following her 28 weeks training course in the Law Society, the Complainant returned to the Respondent on 21 March 2016. On that and the following day a number of interactions took place between the Complainant and the Respondent regarding her role within the office and the duties she was required to carry out. This culminated in an email from the Complainant, on 22 March 2016, in which she stated that the discussions, earlier that day, with the Respondent, in relation to her training and her Indentures had been helpful. The Complainant also stated in this email that she was happy to do all tasks required of her by the Respondent.
The Complainant then took three days leave before returning to the office on 29 March 2016. On her return, the Complaint stated that she was issued with a written warning in relation to her behaviour the previous week and a pay cut amounting to almost 40%.
The Complainant continued to work for the Respondent until 19 April 2016, by which time she had secured alternative employment. The Complainant formally resigned from the employment of the Respondent by way of a resignation letter dated 18 April 2016.
Summary of Complainant’s Case:
Payment of Wages: (CA00004728-001)
The Complainant stated that she was employed with the Respondent as a Legal Secretary and worked for almost two years in this role. The Complainant was paid €520 per week.
The Complainant stated that, in September 2015, she successfully applied for a position on an apprentice solicitor training course (PPC1) which was run by the Law Society, in Blackhall Place. The Complainant stated that it was agreed with the Respondent that she would not be paid during the 28 weeks of her apprentice training. The Complainant further contends that she agreed to this, on the basis that the Respondent assured her that when she returned from the training course, in March 2016, she would return ono the Legal Secretary salary of €520 per week.
The Complainant stated that, in October 2015, she approached the Respondent and advised that she was finding it difficult to manage without pay during her training course. The Complainant further stated that she informed the Respondent she was not seeking her full statutory entitlement of €247.50 per week while on her training, however, she indicated that she was seeking some payment during her training course. She further stated that she informed the Respondent that, if he could not assist in this regard, she was unable to continue without pay and would need to look elsewhere for a training contract.
According to the Complainant, the Respondent urged her to stay and assured her that, while he was not in a position to pay her while she was training, he confirmed that when she returned from her training she would return on her previous salary of €520 per week as opposed to the €329.40 per week applicable to apprentice solicitors for in-office training. On the basis of the Respondent's assurances in this regard, the Complainant stated that she was happy to accept this arrangement, as the deficit in wages during her training course would be offset by the higher rate she would receive when she returned. Consequently, the Complainant decided not to take up a paid traineeship elsewhere and remained in the Respondent’s employment.
The Complainant stated that, in the light of the above assurances from the Respondent, she took out a student loan to cover costs/expenses during her training programme and committed to the repayments on this loan based on her understanding that she would be in receipt of a salary of €520 per week on her return to the office following completion of the PCC1 programme.
In evidence, the Complainant stated that on her return to the office in March 2016 there was no issue in relation to her salary and she was paid at her previous rate of €520 per week. However, the Complainant stated that an issue did arise in relation to her role within the office and her training contract as an apprentice solicitor. In this regard, the Complainant detailed a series of interactions between herself and the Respondent, which took place on 21/22 March 2016.
Following one of the above interactions, the Complainant stated that she confirmed in an email to the Respondent (dated 22 March 2016) that she found their most recent discussions on the matter to have been helpful and, as a result, stated that she was happy to do all and any other jobs required to be done, in addition to those relating to her Indentures. The Complainant stated that she then took three days’ annual leave before returning to work on 29 March 2016.
The Complainant stated that, on her return to work on 29 March 2016, the Respondent issued her with a written warning in relation to the meetings of the previous week and he also applied of 40% pay cut, by reducing her weekly pay rate from €520 per week to €329 per week.
In her complaint, the Complainant stated that she was informed by the Respondent that if she did not accept the warning letter and the pay cut she could go elsewhere. The Complainant further stated that she believed the issuing of the written warning and the pay cut resulted from her seeking to be allowed to comply with her training contract. The Complainant further stated that, in her view, the Respondent reneged on the explicit agreement which had been reached the previous October to apply a salary rate of €520 per week on her return. The Complainant contended that, in her view, the Respondent was only willing to pay the €520 per week, if she was willing to continue working as a Legal Secretary.
The Complainant stated, in evidence, that the situation presented to her at this point was intolerable and the only decision open to her was to resign from the Respondent’s employment and find another firm who would take on her training contract. She further stated that in the weeks following the imposition of her pay cut she did not raise any further issue but got on with her work. The Complainant stated that she quickly got an offer from another firm and resigned from the Respondent. She further stated that on furnishing the Respondent with her resignation letter he requested her to stay and offered to increase her salary, to a figure which she could determine. The Complainant contended that she did not trust the Respondent and, as a result, declined the offer and left the employment.
The Complainant is seeking the wages relating to the 28 weeks she spent on the PPC1 training programme in Black Place. While the Complainant accepts that she agreed to this non-payment, as a result of the Respondent's subsequent reneging on the agreement in relation to her pay when she returned to the office in March 2016, she is now seeking her statutory entitlement to payment during that period.
In a submission filed after the WRC Hearing had taken place, the Complainant identified her statutory entitlement as emanating from Section 16 the National Minimum Wage Act, 2000.
The Complainant also responded, in this subsequent submission, to the Respondent’s contention, made during the Hearing, that she accepted the non-payment of salary during her 28-week training course. The Complainant stated that she accepted the non-payment of course fees.
With regard to the non-payment of wages, the Complainant contends that, while she accepted the Respondent could not make a commitment regarding the payment of wages during her training programme, she understood this aspect of the arrangement to have been was left open initially. The Complainant further stated that it was only when a few weeks of the course had passed and wages were not being paid that she realised that was going to be the ongoing position.
The Complainant stated that she then approached the Respondent in October in an effort to have some wages paid while she was in Blackhall Place, as she was finding it difficult to manage without wages. The Complainant confirms that the Respondent reiterated to her that he was not in a position to pay and that if she wished to move firms then that was her decision.
The Complainant stated that it was at this juncture the Respondent agreed that, on her return from Blackhall Place, she would be paid her usual salary of €520.00 per week. The Complainant contends that this position was confirmed by the Respondent, in a letter he provided to her, to assist with her bank loan application.
In conclusion, the Complainant disputes that she expressly agreed not to be paid during the training course and that she did not freely consent to this arrangement. She stated that she and the Respondent were in an unequal relationship of power and she submitted to non-payment of wages because of the circumstances she was in. However, she stated that she took consolation from the Respondent’s assurances that she would recommence on her usual salary when she returned from the training course.
Unfair Dismissal: (CA00004729-001)
The Complainant’s complain is that she was constructively dismissed from her job by virtue of the fact that her salary had been cut from €520 to €329 per week gross without notice or consent. According to the Complainant, the salary deductions involved amounted to a 40% cut. The details pertaining to the circumstances in which the pay cuts took place, are as set out above, under the Payment of Wages claim.
The Complainant contends that this deduction took place in circumstances where there was an explicit assurance given to her by the Respondent not to reduce her wages in exchange for her agreement not to be paid while she was attending her apprentice training in Blackhall Place.
The Complainant stated that she had invested her loyalty, career aspirations, hard work and hopes in the Respondent's firm. However, the Complaint stated that she was deceived to the extent that she had to leave her employment. The Complainant contends that the Respondent knew she would not be able to sustain the pay cut because of her family circumstances and the fact that she had already sacrificed a significant amount of salary during her training in Blackall Place.
The Complainant contends that the pay cut was designed to either punish her for challenging the Respondent in relation to her work/training contract or to push her out by making her pay and conditions impossible.
Summary of Respondent’s Case:
The Respondent stated that, at the time he took over the practice in March 2015, the Complainant was employed as a Legal Secretary. According to the Respondent, Complainant had indicated an interest in applying for an apprenticeship. The Respondent stated that there were no apprenticeships available within the office. However, in circumstances where the Complainant had completed all of the requisite exams for entry into Blackhall Place (the professional training school for solicitors) the Respondent agreed to sign her indentures, which is an agreement whereby the Respondent agrees to be her Apprentices’ Master, during her apprenticeship as a solicitor.
According to the Respondent, he agreed to sign the Complainant's Indentures as this was her last chance to avail of Blackall Place and, if she did not attend in October 2015, she would have had to resit all eight of the entrance exams. As a result, the Respondent agreed to sign the Complainant's Indentures on the express basis that the fees for Blackall Place would be borne by the Complainant. It was further stated by the Respondent that no salary would be paid to the Complainant as part of this arrangement.
The Respondent claims that this arrangement was clearly explained to and accepted by the Complainant, who, according to the Respondent was delighted to have secured a position on the Law Society course. It was further submitted by the Respondent that the Complainant obtained a personal loan, in addition to securing funding from the Law Society in order to complete the course, which commenced on 8 September 2015. The Respondent stated that the Complainant demonstrated her satisfaction with this arrangement by sending a personal text expressing gratitude for all the help provided in securing the position on the course.
It was submitted on behalf of the Respondent that while the Complainant attended at Blackall Place, she was provided with the opportunity to carry out some work at weekends and she was paid for this work. It was submitted on behalf of the Respondent that the complainant availed of this opportunity on an infrequent basis.
It was submitted in evidence on behalf of the Respondent that it was confirmed to the Complainant that, upon her return to the office, she would be paid at the rate applicable to a Trainee Solicitor. It was submitted that the Complainant expressed a preference, at this point in time to be placed on the rate of a full-time Secretary. It is further submitted that the Complainant indicated that if she was not paid at the applicable rate for Legal Secretary, she would seek employment elsewhere. It is stated that the Respondent informed the Complainant that while he understood her position, it was a decision for her if she was unhappy with the arrangement. The Respondent restated to the Complainant that her role would be as a trainee apprentice and the appropriate Law Society rate in such circumstances would apply.
The Respondent stated that the Complainant returned to work on about 21 March 2016. At this point in time, the Complainant was informed by the Respondent that she would be assigned an office as a trainee and would be dealing with debt collection matters as well as assisting the principal in respect of conveyancing and dealing with appropriate forms and preparing Injuries Board documentation.
It is submitted on behalf of the Respondent that arrangements were put in place to provide the Complainant with a workspace, however, she was requested to sit at her previous desk while that space was being prepared. The Respondent stated that, during this period of time, the Complainant was asked to answer phones. According to the Respondent, the Complainant saw this as being beneath her and she refused to do so on three occasions, despite being advised that the Office Manager would be returning to work at the start of June 2016, after which the Complainant would no longer required to answer phones. The Respondent stated that, on the basis that all staff, including solicitors, are required to answer phones in the office, the Complainant's refusal to do so in this instance was considered as a refusal of a reasonable work request.
The Respondent stated that the Complainant expressed dissatisfaction when she was informed that, pending the clearing of an office for her, her training would commence at a workstation located at the front desk. It is contended by the Respondent that, as part of apprenticeship training she would get a full education including all guidelines as set out by the Law Society, however, she would also be required to do general tasks as every solicitor is required to do. According to the Respondent, the Complainant was dissatisfied with this arrangement, which she referred to as a "smoke screen".
According to the Respondent, the Complainant then informed him that she would take annual leave until her office was cleared out. The Respondent stated that he informed the Complainant that, as he had factored her in to work schedules, it was not convenient to allow her to take leave. The Respondent stated that the Complainant then informed him that she would not answer the phones and left the office.
In further evidence, the Respondent stated that he later received a text from the Complainant which indicated her regret at the way matters had developed and she indicated that she would return to work the following morning. The Respondent stated that on her return to work the following morning he attempted to reassure the Complainant by informing her of his plans for her future employment. However, the Respondent pressed upon the Complainant the importance of performing all work functions.
According to the Respondent, the Complainant reiterated her objection to answering phones and then got up to leave. The Respondent informed the Complainant that by walking out again she would be walking out of her apprenticeship. According to the Respondent, the Complainant replied by indicating that this was not an apprenticeship and then left the office. The Respondent stated that, as a result, he was left with no option but to hire temporary staff to fill the vacancy, as he considered the Complainant had walked out of her employment.
The Respondent stated that, on the following day, he received an email from the Complainant. In this email, the Complainant provided a copy of a guide/training log which she indicated might be helpful in relation to her Indentures. The email also stated that the Complainant was happy to do all and any jobs required in the office.
The Respondent stated that he responded to this email by requesting a meeting with the Complainant to determine the future course of action. At this meeting, the Respondent agreed to recommence the Complainant's Indentures. According to the Respondent, the Complainant was happy to move into the office space when it was free and she also agreed to carry out other duties as required, until 1 June 2016 when the Office Manager was due to return to work.
According to the Respondent, the Complainant was allowed to take the days she had walked out of the office, as annual leave, notwithstanding that the Respondent had to hire a temporary replacement in the meantime.
It was submitted that the Complainant was given a written warning, on 29 March 2016, in respect of her behaviour towards the Respondent. Following this, the Complainant worked on in her role as an apprentice, until she tendered her resignation by way of letter on 18 April 2016.
Payment of Wages: (CA00004728-001)
The Respondent’s representative stated that the Complainant herself concedes that she expressly agreed with her employer not to be paid during the training course. It was pointed out that this matter was not in dispute between the parties and the Complainant’s claim in relation to these monies is therefore unstateable.
The Respondent's representative referred to Section 6 (4) of the Payment of Wages Act, 1991, wherein it states that a complaint under this section cannot be entertained unless it is presented within a period of six months beginning the date of the contravention to which the complaint relates. In this regard, the Respondent's representative pointed out that the Complainant's specific complaint is that she should have received a payment on 10 September 2015. The Respondent pointed out that the Complainant's complaint was referred to the WRC on 22 May 2016. It was stated that, as the period of time involved is greater than the six months set out in the legislation, the complaint is therefore out of time.
Notwithstanding the above position, the Respondent contends that it appears the Complainant was attempting to make the case that he was somehow obliged to pay her as a Legal Secretary. The Respondent stated that there was never any agreement to pay the Complainant a rate of pay in excess of the apprenticeship rate. It was submitted that the Respondent was not under any obligation to pay the Complainant anything other than the rate applicable to apprentice solicitors. It was further contended that the Complainant was retained as an apprentice upon her return from Blackall Place and not in any other role.
With regard to the submission presented by the Complainant subsequent to the WRC Hearing, the Respondent stated that the Complainant did not have any statutory entitlement to payment, as she agreed that the apprenticeship will be undertaken by her at her own expense. In this regard, the Respondent submitted the letter, referred to by the Complaint in her subsequent submission, which he had provided in order to assist her with her bank loan application. The Respondent stated that this letter confirmed that she was not in receipt of payment during the course of training.
The Respondent further contends that the position in relation to the non-payment of wages during her training course was not disputed by the Complainant and she raised no grievance or made no claim in this regard until after she had left the Respondent’s employment.
Finally, in relation to this matter, the Respondent stated that an error was discovered in respect of the Complainant's wages. As a result of an error made by the Bookkeeper, the Complainant had been restored to the Legal Secretary pay rate when she returned from Blackhall Place, rather than been placed on the apprenticeship rate. According to Respondent he informed the Complainant that he would not seek reimbursement of the overpayment. It is contended that the Complainant responded that she was grateful for this and commenced work as a Trainee Apprentice on the appropriate rate.
Unfair Dismissal: (CA00004729-001)
The Respondent's representative stated that the Complainant resigned from her position of employment on 18 April 2016 by way of a letter entitled, “notice of resignation”.
It was further stated that no dismissal, either constructive or otherwise, arose. The Respondent claimed that it was entirely unreasonable for the Complainant to terminate her own contract of employment in consideration of all the circumstances. It was contended that no act on the part Respondent could be considered at any time to have amounted to behaviour, which would entitle the Complainant to terminate the contract of employment and claim constructive dismissal thereafter.
The Respondent's representative stated that the alleged conduct of the Respondent as claimed by the Complainant, is denied in the first instance. It was further stated that the alleged conduct does not go to the root of the relationship between the employer and employee and therefore, could not in any way be considered behaviour reaching the high threshold establishing a constructive dismissal complaint. It was further stated that the Complainant had simply failed to prove the fact of any dismissal and that this was nothing other than a voluntary resignation.
Findings and Conclusions:
Payment of Wages: (CA00004728-001)
In their submission, the Respondent claimed that the Complainant's claim was out of time by reference to Section 6 (4) of the Payment of Wages Act, 1991.
Section 6 (4) the said states as follows:
“a rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of six months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding six months as the rights commissioner considers reasonable."
It is clear that the payment, being referred to by the Complainant in her claim, relates to her PPC1 training at the Law Society in Blackhall Place. This training programme commenced in September 2015 and concluded in March 2016. The Complainant did not receive any payment from the Respondent during this period. As a result of, what she claims to be, a reneging by the Respondent in relation to her pay rate when she returned to the office in March 2016, the Complainant is now is seeking to enforce her statutory entitlement to this payment.
In response to this claim, the Respondent contends that the Complainant's specific complaint is that she should have received payment on 10 September 2015. However, the Respondent points out that the Complainant's complaint was not referred to the WRC until 22 May 2016, which represents a period of eight months after the date of the alleged contravention. Consequently, the Respondent contends that the Complainant’s claim in this regard is, accordingly, statute barred.
It is clear that the Complainant's claim it is not just related to the first non-payment in September 2015 but covers the entire period of her absence on the training course up to March 2016. In addition, I am satisfied that the Complainant would not have been in a position to submit the claim until March 2016, which was when the alleged reneging on the agreement between her and the Respondent materialised.
Consequently, taking all of the above into consideration, I am satisfied that the Complainant's complaint it is within time and as a result that it falls within my jurisdiction for investigation and decision.
As already stated, the payment at the centre of the Complainant's claim relates to a PPC1 solicitors apprentice training programme which she undertook at the Law Society, between September 2015 and March 2016. From the evidence presented it appears that the Law Society rate applicable to off-site training of this nature, is €274.50 per week.
The evidence presented by the Respondent is clear and consistent in relation to his claims that he was not in a position to pay the Complainant during her attendance at this training. The Respondent is also clear and consistent in his evidence that it was agreed between them that he would sign the Complainant’s Indentures, on the express basis that she would be responsible for her own fees and that she would not receive any salary during her time attending the training programme.
While the Complainant, in her evidence, contends that she did not expressly or freely consent to the non-payment of wages, it is clear that she was aware of the arrangement from the outset and that the position was further reiterated for her when she approached the Respondent in October 2015 on the matter.
While it is clear that there was an agreement between the parties in relation to the arrangement while the Complainant was attending her training programme, significant difference exists between them in relation to their understanding of the arrangements that were to apply on the Complainant's return to work in March 2016.
It is the Complainant's contention that the Respondent had agreed that she would resume on the pay rate she was on prior to her departure on the training programme (that being the Legal Secretary rate of €520 per week).
It is the Respondent's contention that the rate to apply on the Complainant's return to the workplace would be that applicable to training apprentices, as set out by the Law Society at €329.40 per week. The Respondent stated, in evidence, that there was never any agreement with the Complainant to pay her a rate of pay in excess of the apprenticeship rate when she returned to work in March 2016.
The only evidence provided that could in any way substantiate or corroborate their positions in relation to the salary arrangements that were to apply to the Complainant on her return to the workplace, was provided by the Respondent in his reply to the Complainant’s post hearing submission. In that submission, the Complainant contended that the Respondent had provided her with a letter, in October 2015, which she submitted to the bank as part of loan application. The Complainant contended that this letter confirmed her salary at €520 per week.
The letter in question confirms, inter alia, that the Complainant was undergoing a period of study in the Law Society and that she was due to recommence paid employment with the Respondent in March 2016. However, contrary to the Complainant’s contention, this letter makes no reference to salary of any amount.
Consequently, based on the evidence presented it is clear that the arrangement in place for the duration of the Complainant’s training course was that she would not be in receipt of any salary during this time. While it appears that the Complainant may not have been fully satisfied with this arrangement, it is, nonetheless, clear that she was both aware of and accepted the situation. This view is further confirmed by the fact that that the Complainant decided not to change firm when the matter was clearly discussed between her and the Respondent during October 2015, even though it appears that she had sourced an alternative firm who would have paid her during her training.
While it is clear that the arrangements (including pay rates to apply during training) pertaining to attendance on such training programs are governed by Law Society guidelines, it would appear that the decision to support and/or sponsor employees attending these programs rests within the individual discretion of the employer. Consequently, I am satisfied that no statutory right attaches to the attendance an apprentice solicitor programmes.
Section 16 (1) of the National Minimum Wage Act, 2000, states that where an employee undergoes a course of study or training authorised by the employer they will be remunerated by the employer. However, in this case I do not believe it can be accepted, in the sense set out in the Act, that the Respondent had “authorised” the Complainant’s participation on the programme. It is clear from the evidence presented that the Respondent was not in a position to remunerate the Complainant during her time of the course or to cover her course fees. I am satisfied, based on the balance of probability, that had the Complainant is not arranged her own finance to cover the course fee and had she not accepted the Respondent’s position that he could not pay her while she was on the course, she would either have had to forego her position on the course or arrange alternative employment with a firm who were in a position to sponsor her. Consequently, I am of the view that, in the circumstances which prevailed in this case, the Complainant did not have statutory entitlement to payment as she effectively agreed to undertake a course at own expense.
The evidence adduced clearly demonstrates that an agreement existed between the parties to the effect that the Complainant would not be in receipt of any salary during her time attending the training course. While the Complainant strongly contends that a further agreement existed between the parties, whereby she would be placed on the Legal Secretary rate when she returned from the training programme, this is equally strongly contested by the Respondent who contends that the agreed rate of pay to apply the Complainant's return was that applying to in-office training, at €329.40 per week.
Clearly, matters were complicated when, on the Complainant's return to the workplace, she was placed on her former rate of €520 per week. The Respondent stated in evidence that this was an administrative error. The Respondent stated that, as soon as this error was detected, it was rectified by placing the Complainant on the office training rate of €329.40 per week.
The Complainant contests the Respondent’s account in this regard and contends that the reduction in her weekly rate from €520.02 to €329.40 per week was a punitive action on behalf of the Respondent to punish her for resisting his attempts to compromise her training contract.
Other than the letter, already referred to, which was provided to the Complainant by the Respondent, in October 2015, and which does not support the Complainant’s contention in relation to the salary arrangements applying on her return to the workplace, no other evidence was adduced which will confirm that the returning rate of pay was to be €520 per week.
Clearly, the Complainant was dissatisfied with what she contends was the Respondent's reneging on their alleged agreement in relation to the return to work situation. It is also clear that, as a result, the Complainant is now seeking to repudiate the agreement that clearly existed between the parties with regard to salary arrangements while she was on her training programme.
Having carefully considered all the evidence adduced, I am satisfied that an arrangement existed between the parties whereby the Respondent would not make any salary payments to the Complainant when she attended her off-site training programme. I am further satisfied that, while the dispute which subsequently arose between the parties in relation to the on-site training rates, is viewed by the Complainant is a breach of agreement by the Respondent, it does not give rise to a claim under the Payment of Wages Act, 1991.
Unfair Dismissal: (CA00004729-001)
The second element of the Complainant’s complaint is based on the same circumstances as set out above in relation to her claim under the Payment of Wages Act. In this instance, the Complainant is claiming constructive dismissal as a result of the salary cut, which was advised to her on 29 March 2016, following her return to the workplace after a training programme in the Law Society.
Constructive dismissal relates to a situation where an employee terminates their contract of employment, as was the situation in the case at hand.
Section 1of the Unfair Dismissal of Act, 1977, defines such a 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,”
Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy the dual tests of (1) Breach of Contract and (2) reasonableness. The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign. However, it is now also generally understood that an employee must act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. All other reasonable options including grievance procedures must be explored.
The reasonableness test requires that the Complainant must satisfactorily demonstrate that the Respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. In so doing the Complainant must also show that their action/behaviour in resigning was reasonable in all the circumstances. This is regularly referred to as the mirror image concept.
Having carefully considered all of the evidence adduced in this case, I am satisfied that the Complainant was extremely upset by what she perceived to be the Respondent’s reneging on a verbal agreement she claims existed between them. I can also understand how, in such circumstances, the Complainant may have felt let down by the Respondent to the extent that the level of trust between them may have been impacted.
However, notwithstanding the above, I am not satisfied that this constitutes grounds for constructive dismissal. By her own evidence, the Complainant stated that when she tendered her resignation, the Respondent did endeavour to address the matter by offering a significant increase in salary. The fact that the Complainant, who had already secured alternative employment, rejected the Respondent’s offer in this regard, clearly demonstrates that her decision to resign was a voluntary decision, taken at a point in time when the Respondent was endeavouring to resolve matters.
Consequently, taking all of the above into consideration, I find that the Complainant failed to establish that the behaviour of the Respondent was such that she was left with no option but to resign. It is clear that as a result of a dispute with the Respondent in relation to her salary, she made a personal and voluntary decision to seek alternative employment and once she had done so, tendered her resignation to the Respondent. The personal and voluntary nature of the Complainant’s decision in this regard was confirmed by the fact that she proceeded with the resignation despite the Respondent’s efforts to retain her with an offer of increased salary.
In her post hearing submission, the Complainant requested that hera complaint will be considered in the light of the Protected Disclosures Act, 2014. Firstly, the Complainant made no reference to this issue when submitting her original claim and/or during the course of the oral Hearing. Secondly, the reference to Protected Disclosures appears to relate to the meeting between the Complainant and the Respondent’s at their meeting on 22 March 2016. It has already been established that the Respondent issued the Complainant with a formal warning arising from her attitude at that meeting.
As the issue of the formal warning has been included in the overall consideration of the Complainant’s complaint, I do not consider the issue raised in her post hearing submission requires any additional consideration.
Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my decision as follows:
Payment of Wages: (CA00004728-001)
The Complainant’s claim under the Payment of Wages Act, 1991, for payment of wages for the period September 2015 to March 2016, while she was attending an apprentice training course, is not upheld.
Unfair Dismissal: (CA00004729-001)
The Complainant’s complaint of constructive dismissal under the Unfair Dismissals Act, 1977, arising from a salary cut in March 2016, is not upheld.
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Payment of Wages