ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017922
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 07/02/19 and 11/03/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that he was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender her resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that he was forced to terminate his Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate his employment (as defined in Section1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the of Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.
Secondly, the employee may allege that he satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for him to resign. That the employer has conducted it’s affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving.
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment (by reason of Constructive Dismissal) wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 8th of November 2018) issued within six months of her dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
In a preliminary way, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 8th of November 2018.
In addition the Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and the where the said Employee employed by an Employer is entitled to be provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment (as specified in Section 3 of the 1994 Act).
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
This matter comes before the Adjudication services on foot of a complaint from dated the 8th of November 2018, in which the Complainant alleges he was Unfairly dismissed and had his wages unlawfully deducted and was not provided with the minimum terms of his Contract of employment.
Summary of Complainant’s Case:
The Complainant was represented and I was provided with a written submission for my consideration. The Complainant gave evidence on his own behalf.
Summary of Respondent’s Case:
The Respondent was represented and I was provided with a written submission for my consideration. Only one witness gave evidence on behalf of the Respondent.
Findings and Conclusions:
I have carefully considered the evidence adduced by both parties presented over the course of two days. The Complainant commenced his employment with the Respondent company in and around November of 2015. The Respondent herein owns and operates a Public House on the outskirts of the city of Dublin. The public house in question had been closed down and had been in a state of disrepair before the current owners took it on in the middle of 2015. There was a period of refurbishment during which time the Complainant’s services were called upon. The Complainant is a glazier with a skill for turning his hand to most tasks. The Complainant had previously worked at the Respondent premises under the previous owners. The Respondent kept the Complainant on in circumstances where the busy premises would be requiring a general handyman on an ongoing basis. The Complainant was retained at a fixed per hour rate.
The present General Manager Mr. B joined the Respondent in and around January 2017 at which time the Complainant had already been working there for well over a year. Mr. B indicated that the services of an on-site handyman was invaluable as it was easier to have the Complainant deal with issues as they arose, he was trusted to come on-site unsupervised and his work was always up to the mark. That said the work was not, nor was it ever intended to, be full time. The Complainant’s arrangement was that he would work anywhere from 12 to 20 hours a week.
The Complainant was diagnosed as having cancer in and around 2016. The Complainant underwent an immediate period of serious and invasive treatment for the disease. It now seems that there had been a mistake made with the initial diagnosis and although the Complainant still has cancer the treatment changed mid-stream when Doctors realised that the Cancer-type they were dealing with was different. The Complainant’s employer was alerted to these developments as and when required. I do not underestimate how difficult all of this was for the Complainant.
In the course of 2017, the Complainant and another member of staff – a barman (JY) – developed a strained relationship. In theory, these two men had no real need to interact as neither was engaged to do anything other than his own job. However, the Complainant took offence at what he perceived to be JY’s efforts to try and supervise and /or manage him in the workplace. He did not accept that JY had any authority over him. The Complainant resented, for example, when JY gave out to the Complainant when he said that the Complainant had blocked a customer into a parking spot. Again JY took it upon himself to chastise the Complainant when the complainant had sought to reserve himself a car parking spot in the car park by using cones. I was shown some of the text messages exchanged between the parties and I cannot say that either party showed any restraint. Ultimately there was an issue when the Complainant removed a speaker from a wall which seemed to really rile JY. The allegation is that JY threatened that he would use pepper spray on the Complainant if he got the opportunity. This it seems was in circumstances where JY had applied to become a member of the Garda. The Complainant by way of retaliation wrote to an Assistant Garda Commissioner to warn the Garda that JY would be an entirely unsuitable candidate for the Garda. This happened in and around August of 2017.
JY was contacted by the Garda and told that this complaint as to his character and suitability had been received by them. Needless to say, JY was very upset by this turn of events. Not surprisingly, in his anger he informed the regulars to the Respondent premises of what had been done by the Complainant, and matters escalated from there as people started cold-shouldering the Complainant for having done such a thing to a young man starting out on his career.
Much was made of the fact that the Employer in the form of Mr. B had not previously intervened between the Complainant and JY and the case was made to me that an earlier intervention might well have meant that the final escalation of involving the Garda commissioner might not have happened. Mr. B in his evidence was not inclined to take the blame for the Complainant’s action in this regard. On balance I am inclined to accept Mr. B on this point. Whether the Complainant underestimated or was reckless as to the fall-out from his actions he was entirely to blame for the fall-out from his actions. The Complainant became increasingly isolated and marginalised within the workplace as people blamed him JY’s future into jeopardy. It is worth noting that that the Complainant indicated that JY was going out with the daughter of a popular regular to the bar Mr. O’N. Thus the lines were drawn with the Complainant on one side and the rest of the staff and the customers on the other.
I imagine that this was a very difficult time for the Complainant and I absolutely accept that he repeatedly told his employer Mr. B that the situation was very difficult. It has been put to me that Mr. B again should have been more pro-active at this point in time and should have recognised these complaints as the Grievances that they were. I accept that it is regrettable that Mr. B was not willing to “micro manage” the situation (his evidence) and he didn’t think that he should have to intervene in the row between two grown men. I would accept that Mr. B should have taken this matter more seriously and especially in circumstances where the complainant was quite sick and undergoing a considerable amount of medical treatment. I do accept that in and around October of 2017 Mr. B, in the course of a staff meeting, told his staff that there was to be an end to all talk on that topic and he believed that that should have been enough for the Complainant. For his part, the Complainant never really accepted that Mr. B had made that request of his staff.
In tandem with these events, the Complainant noticed for the first time that his hourly rate of pay was somewhat less than he had thought it was. Somewhere in the middle of 2016 it seems that his hourly rate of pay dropped from €14.00 to €12.50. The Complainant was very upset at this and raised it with Mr. B who, it is noted, had become Manager well after this purported drop in salary which had now been in operation for up to two years. The Complainant started demanding sight of his Contract of Employment as well as a rectification of his old rate of pay. Mr. B said repeatedly that he would look into this.
Then in February 2018 things flared up again. Mr ON was arrested by the Garda for drink driving and it seems that Mr.ON (though he did not present to give evidence in this regard ) believed that it was a member of the Respondent’s staff who contacted the Garda to say that Mr. ON was about to get behind the wheel of a motor vehicle having consumed alcohol. CCTV showed the Complainant to be waving his arms in the car park at about the time that Mr ON was leaving the public house though the Complainant says he was waving at his son in his van across the road.
I note that Mr. B seemed more concerned with finding out who had contacted the police than the fact that a client of the pub was intent on drinking and driving and I would have to question his priorities in this regard.
On the 12th of February Mr. B had a meeting with the complainant. I accept that it was most irregular and not at all good management practise that the meeting, which was called for the purpose of telling the Complainant that his working hours were being drastically reduced, was conducted without the Complainant knowing what was to be discussed. However, and I was not told why, Mr. B chose to record this meeting. Is seems to me that Mr. B wanted to capture something at the meeting and only two things were raised. Firstly, the reduction of hours which the Complainant readily agreed to as it suited his then deteriorating health. Secondly, the Complainant was asked if he had called the Garda. This the Complainant denied. I am not sure if this was some attempt at entrapment but in any event the complainant brushed off the accusation. I am also satisfied from listening to the recording of the meeting that the Complainant was at that time happy to have his hours pared back to the bare minimum of two to three days a week. I would further accept that he was not told that this could mean that some weeks would come and go where he would not be invited to work at all. It seems in the next few weeks the Complainant was not asked in to work but that might have been as much to do with being out sick as anything, the complainant did do a day of work on the 8th of March 2018 but was advised (by the cleaning lady) not to attend for work on the 9th of March at which time he accused Mr.B of intimidating him and threatening him and stating that he could not take any more. I am confused by this text message as it was not at all in the same friendliness as was apparent at the recorded conversation of the previous month. In any event Mr. B simply ignored it and his next communication was about three weeks later when he asked the Complainant to come in and do a days work – on March 30th 2018.
I am satisfied that by this time, the Complainant was not happy with the reduction in hours (sometimes to nothing at all) and this along with the failure to clarify the rate of pay and provide him with a contract of employment were all factors that led to the Complainant feeling very dissatisfied. I am also satisfied that Mr. B was treating the Complainant very unfairly insofar as he was not dealing with any of these issues in an orderly way. Looking at the picture after the meeting of March 30 I am satisfied that the Complainant’s status in the workplace had become eroded and diminished. I think that Mr. B had no real regard for the Complainant and wasn’t bothered to seek the paperwork now being sought not only by the Complainant but also (it should be noted) by his Solicitor – needed for the litigation arising out of his mis-diagnosis. Mr. B gave evidence that he was getting a contract of employment drawn up but I simply do not accept the fact.
To my mind, if the Respondent was genuinely and legitimately cutting back hours then the question of a Redundancy should have been considered. It was never going to be fair to have the Complainant put onto what appears to have been a “Zero Hours Contract” type arrangement after three or four years of regular employment. This situation became untenable for the Complainant who had moved gradually over time from earning as much as €700 per week to earning €0 per week but nonetheless being at the whim of his employer. By the end of March there was a lack of trust between the parties. Things may have come to a head at that time except that the Complainant was in fact clearly (and understandably) distracted at this time by his own ill-health and the fact that his own negligence legal case was settling.
Then on the 4th May 2018 an argument erupted between Mr. B and the Complainant which to my mind was regrettable and which was to breach without prospect of repair the relationship between these two men. It should be noted that I had sight of the CCTV footage of the interaction between the parties and I confirm that I believe that Complainant assaulted his employer.
Nothing can entitle an employee to physically assault and threaten in the manner caught on the CCTV. Whilst I cannot be absolutely certain that oral threats to Mr. B family were made (as alleged), the overall impression from the footage is one of a volatile and intimidating interaction.
The Complainant resigned his position by letter dated the 11th of May 2018 and in his letter of resignation he cites the reasons for the resignation as the reduced hours, the reduced rate of pay and other issues known to the Respondent.
The obligation on me is to assess whether a Constructive Dismissal has arisen and in making any determination I must look at all the circumstances which pertain at the point when a resignation is tendered. Whilst I accept that the issues raised by the Complainant may well form a list of legitimate grievances held, I have no doubt that the assault perpetrated by the Complainant on his Employer was the primary reason for the resignation. The Complainant knew he had pushed things too far and overstepped what could possibly be acceptable behaviour. I acknowledge that the Complainant may well have been treated badly in the course of this employment, but I accept that the Complainant by tendering his resignation simply took the pre-emptive step of leaving before being dismissed for Gross Misconduct. The Employer confirmed this course of action would otherwise have been taken by letter of the 16th May 2018.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints made under the Acts previously mentioned and in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 - CA-00023120-001
The Complainant’s complaint herein is well founded as the Complainant was not provided with a Statement of his terms of employment and a payment of compensation in the sum of €500.00 is awarded.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00023120-002
The Complainant was not Constructively Dismissed and his complaint herein fails.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00023120-003
The Complainant’s rate of pay was unilaterally reduced and therefore his claim herein is well founded, and I award compensation (taking into account the appropriate six month period) in the amount of €200.00.
Workplace Relations Commission Adjudication Officer: Penelope McGrath