ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009014
Parties:
| Complainant | Respondent |
Anonymised Parties | Sales Assistant | Employer |
Representatives | Eugene Smartt, Eugene Smartt Michael McCormack, BL | Colm O'Cochlain Colm O'Cochlain and Company |
Complaint(s):
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-00011722-001 | 02/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00011722-002 | 02/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00011722-003 | 02/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011722-004 | 02/06/2017 |
Date of Adjudication Hearing: 06/11/2017
Workplace Relations Commission Adjudication Officer: Michael Ramsey
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015, Section 24 of the National Minimum Age Act, 2000, Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and Section 27 of the Organisation of Working Time Act, 1997following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant seeks adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977 and in particular the Complainant claims they had to leave the job due to the conduct of the Respondent. The Complainant seeks adjudication by the WRC under Section 24 of the National Minimum Wage Act, 2000 and in particular the Complainant claims they did not receive the national minimum rate of pay. The Complainant seeks adjudication by the WRC under Section 11 of the Minimum Notice and Terms of Employment Act, 1973 and in particular the Complainant claims they did not receive a statutory minimum period of notice on the termination of their employment or payment in lieu thereof. The Complaint seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1997 and in particular the Complainant claims they did not receive their public holiday entitlements. |
Summary of Complainant’s Case:
In the circumstances of this matter, the Complainant indicated in the course of her evidence that the Respondent took over the wholesale & retail business on or about the 16th February 2016. The Complainant had worked for the former owner for many years prior to the transfer of undertaking. The Complaint form indicated that said former employment began on the 3rd January 1994. Further, upon the termination of the former business the owner had given a cash payment to all of the employees including the Complainant. The Complainant was re-employed by the Respondent and the works hours were between 8:30 and 14:30 on Monday, Wednesday and Friday. The Complainant was paid €10.00/hour and as of the 1st March 2016 this was reduced to €9.00/hour along with a cash amount which effectively amounted to €9.15/hour. In effect, the Complainant worked 6 hours a day and 18 hours per week. Further, the Complainant indicated she was paid two weeks holiday pay and six of those days were paid in cash. The Complainant indicated in her evidence that throughout the course of her employment with the Respondent, the Respondent had a very brusque and abrupt manner. The Respondent could be very dismissive and made gestures to the Complainant that she found offensive. Further, there were regular outbursts in front of members of the public. Ultimately, the incident that led to the Complainant leaving occurred on the 13th January 2017. Following a car accident the Complainant had not been working since the 1st January 2017 and she arrived into the work place seeking payslips in relation to the prior Christmas period which were necessary in relation to social welfare payments. The Complainants discussion with the Respondent, with customers present, lasted for approximately twenty minutes and the Complainant found the attitude and manner of the Respondent to be both arrogant and obnoxious and accordingly, at this juncture, the Complainant decided to terminate her employment. Since the 13th January 2017, the Complainant has not taken up any further employment but has applied for various positions. |
Summary of Respondent’s Case:
The Respondent did not attend and although there is a legal representative on record there was no communication to explain the non attendance of the Respondent. The sole piece of communication, with the WRC, appears to be a letter dated the 6th July 2017, from the Respondent’s legal representative wherein it is stated that in relation to the first complaint (CA-00011722-001), the Respondent purchased the business in early 2017(?) and the Complainant was paid redundancy by the seller. The Complainant was offered a part time position subsequently by the Respondent and was employed for less than a year. It is further stated that the Complainant walked out of work and never made any complaint about their employment to the Respondent prior to walking out. In relation to the second complaint (CA-00011722-002), it is stated the Complainant was paid the minimum wage. In relation to the third complaint (CA-00011722-003), it is stated the Complainant walked out. In relation to the fourth complaint (CA-00011722-004), it is stated the Complainant was given and paid for all holiday entitlements. Although, an email was received on the 22nd December 2017 from the Respondent indicating he was unaware that the hearing of this matter had been scheduled for the 6th November 2017.
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Findings and Conclusions:
The Complainants first claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. Section 1 of the Unfair Dismissal Act defines constructive dismissal as: “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 the 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”
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 rights commissioner, the Tribunal or the Circuit 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) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances. The burden of proof, which is a very high one, lies on the claimant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal 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” When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate her contract of employment. On a full assessment of the facts I can find no evidence to suggest that there was a significant breach going to the root of the complainant’s contract of employment (if any). In those circumstances, I must ask myself, was it reasonable in all of the circumstances for the complainant to terminate her contract of employment. The complainant took issue in relation to the manner in which the Respondent treated her within in the parameters of the workplace and in front of members of the public and whilst I have the utmost sympathy for the complainant and the circumstances she found herself in, I find based on the legal requirements that the complainant was not justified in terminating her own employment. Further, no evidence was proffered from the Complainant in relation to whether she invoked the internal grievance procedure or whether in fact there was any such procedure available. In the circumstances, where such a procedure is available, it would be appropriate for the Complainant to exhaust the internal process before taking any further action. Accordingly, the first complaint (CA-00011722-001) fails. In relation to the minimum rate of pay complaint, the national minimum wage in 2016 was €9.15/hour and was increased to €9.25/hour in 2017. The Complainant accepted, in the course of her evidence, that she did receive the appropriate minimum wage from the 1st March 2016 onwards as a mixture of payment and cash. Accordingly, the second complaint (CA-00011722-002) fails. In relation to the complaint that the Complainant did not receive her statutory minimum period of notice on the termination of the her employment of payment in lieu thereof, Section 4 of the Minimum Notice & Terms of Employment Act, 1973 provides, inter alia, that the employer shall in order to terminate the contract of an employee who has been in continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice. However, in the circumstances of this matter, as this is effectively a constructive dismissal case and the employee terminated her contract there is no requisite or appropriate section of the aforementioned act, in relation to an employee, that can be applied in the circumstances of this matter and accordingly the third complaint (CA-00011722-003) fails. In relation to the complaint that the Complainant did not receive any public holiday entitlements the Complainant confirmed in the course of her evidence that she did not receive any payment for public holidays. In the absence of any contradictory evidence on behalf of the Respondent, I accept the bona fides of the Complainant and decide that she is entitled to payment in relation to the public holidays from the 16th February 2016 until the 13th January 2017. Accordingly, the Complainant is entitled to payment in relation to 9 public holidays at the rate of €9.15/hour for 2016 and €9.25/hour for 2017. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 24 of the National Minimum Wage Act, 2000 requires that I make a decision.
Section 11 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision
Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision.
I find that the Complaint (CA-00011722-001) made pursuant to Section 8 of the Unfair Dismissal Act 1977 fails. I find that the Complaint (CA-00011722-002) made pursuant to Section 24 of the National Minimum Wage Act 2000 fails I find that the Complaint (CA-00011722-003) made pursuant to Section 11 of the Minimum Notice & Terms of Employment Act 1973 fails I find that the Complaint (CA-00011722-004) made pursuant to Section 27 of the Organisation of Working Time Act 1977 is well founded, and order the Respondent to pay the Complainant €700.00 being the approximate equivalent to the public holiday entitlements and in consideration of the breach of the aforementioned section. |
Dated: 1st August, 2018
Workplace Relations Commission Adjudication Officer: Michael Ramsey
Key Words:
Constructive Dismissal - |