ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00048035

Parties:

	Complainant	Respondent
Parties	Elena Bykova	Websoft Consultants Ltd

	Complainant	Respondent
Anonymised Parties

Representatives

Complaint:

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-00058900-002	19/09/2023

Date of Adjudication Hearing: 29/02/2024 and 13/02/2025

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

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.

Ultimately it became clear that the Complainant’s complaint is that she was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that her Employer’s conduct or behaviour was such that she 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 she was forced to terminate her 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 her employment (as defined in Section 1 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 Employment 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 her to resign. That is to say 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. The test is objective. The test requires that the conduct of both employer and employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. The conduct of the employer that is being complained of, must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.

The within case concerns an assertion that there has been a fundamental breach of Contract on the part of the Employer.

Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.

7.1 (b) (ii) states that

“If the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances”,

Background:

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 19th of September 2023. In general terms I will therefore be looking at issues that have arisen in the six-month period directly preceding this date.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed is deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

Summary of Complainant’s Case:

The Complainant was not represented and made her own case The Complainant relied on the submission set out in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case which arrived on the 9th of October 2024, though other documents arrived at different times.

The Complainant alleges she was unfairly dismissed.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Summary of Respondent’s Case:

The Respondent did not attend on the second day of hearing. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 11th of December 2024 - and posted to the address provided and from which address the Respondent had previously responded to correspondence.

The Respondent had attended on the first day of hearing and had provided oral evidence on that date.

Despite his non-attendance at the hearing, I had the benefit of the Respondent’s submission on the file and this Submission had been sent in between the first and second day of hearing to the WRC – on the 19th of November 2024. Points raised by the Respondent therein were systematically put to the Complainant in the course of the hearing.

Findings and Conclusions:

I have carefully considered the evidence adduced over the course of two days.

I am satisfied that the Complainant came to be Employed by the Respondent company from in and around September of 2021. The Complainant seems to have worked remotely and was available to the Respondent – in the person of the Managing Director – as and when required. There appears to have been initial irregularities in terms of the Complainant’s Revenue and Tax compliance, but DF did sort these out such that by early 2022 the Complainant’s financial affairs were in order.

The Complainant worked through 2022 and well into 2023. The Complainant denies the periods of absenteeism suggested by the Respondent witness DF.

Things had slowed down in the workplace in the summer of 2023, but alarm bells only started ringing for the Complainant when she was forced at the end of July or beginning of August 2023 to ask about her remuneration which had become payable at the end of the July. FD was not in a position to pay her. He suggested she find some new clients to assist. The Complainant says she spent two weeks then looking for new clients but that by the time she had secured new work she discovered that her work permit had expired and that her Employer was refusing to assist secure a new one. The Employer had now allowed six weeks to pass making no payment to the Complainant.

The Complainant considered herself to be Constructively dismissed in circumstances where her Employer had withheld remuneration for up to six weeks service. I accept that this act of withholding monies goes to the heart of the Employment Relationship and amounted to a fundamental breach of the Employment Contract. The Complainant lost six weeks pay at a rate of €1,250.00 Gross per week.

The Employee set about obtaining new employment in mitigation of her losses. The Complainant was able to secure a position at a higher rate of pay on or about the 27th of November 2023. The Complainant was also able to secure the appropriate work Visa. The Complainant’s losses for that period of time amounts to twelve weeks.

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.

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

CA-00058900-002 – The Complainant had been Constructively Dismissed by reason of a fundamental breach of the Employment Contract on the part of the Respondent. I award compensation for the financial loss attributable to the dismissal in the amount of €22,500.00.

Dated: 23.04.25

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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