Complainant

Respondent

Parties

Dainius  Zalys

Zellwood Limited

Representatives

Crushell & Co Solicitors

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-00061026-001

16/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00061026-002

16/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991

CA-00061026-003

16/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act 2005

CA-00061026-004

16/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act 1973

CA-00061026-005

16/01/2024

The Complainant had full representation at the hearing. The Complainant provided me with a written submission on the 7th May 2024 together with a comprehensive book of documentation which the Complainant relied upon in the course of making his case. The Complainant gave oral evidence with the assistance of an interpreter.

The Respondent did not attend the scheduled hearing of this complaint. Having carefully reviewed the file I am satisfied that the Respondent was on notice of the claim against it and the hearing date, time and venue. I waited a reasonable time before proceeding with the hearing in the absence of the Respondent.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing and the oral and written submissions made by and on behalf of the parties.

CA-00061026-001: Unfair Dismissals Act 1977

Relevant Law

Section 1 of the Unfair Dismissal Act 1977 (as amended) (hereinafter referred to as “the 1977 Act”) defines constructive dismissal as:

“(b) 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.”

The Complainant claimed that he was constructively dismissed and that the Respondent breached his contract of employment and/or that matters had become so intolerable that he had no option but to resign. Accordingly, I must consider whether or not, on the balance of probabilities, there was a dismissal in accordance with the provisions of section (b) above.

The statutory definition of (constructive) dismissal provides for two tests, the contract test and the reasonableness test. The contract test is where the employee argues that he or she was “entitled” to terminate the contract because of the conduct of the employer which constitutes a fundamental breach of the employee’s contract of employment. The second test, which is the reasonableness test, has two elements. First, an employee may allege that while an employer may have acted within the terms laid down in the contract of employment its conduct may be none the less unreasonable. Second, the employee has to show that he or she acted reasonably in terminating the contract of employment in the circumstances. This latter element is a key factor as it requires the employee to have considered all other possibilities prior to taking the step of terminating his or her employment.

The contract test has been summarised in Western Excavating (ECC) Ltd. v. Sharp [1978] I.R.L.R. 27; [1978] QB 761 by Lord Denning MR as:

“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. The term imposes reciprocal duties on the employer and the employee.”

The Complainant gave evidence that his first period of employment with the Respondent commenced in July 2017 and that whilst he initially worked night shifts soon after he was moved to morning shifts. He stated that at some point without any notice the Respondent stopped paying for overtime and his morning shifts went back to night shifts without any overtime payment. He was aggrieved that he was not being paid overtime for hours worked and he resigned on the 24th January 2020. After five months the Complainant contacted one of the Respondent’s managers to discuss the possibility of returning to work for the Respondent. During the course of the meeting the Complainant agreed to return to work for the Respondent on the condition that he would get early morning shifts, that his working day would not exceed a 12-hour day and if it did, he would be paid overtime. The Complainant was furnished with a Statement of Main Terms which set out terms and conditions of employment and a Work Force Agreement and he returned to work for the Respondent as a truck driver on the 16th June 2023. He stated in evidence that whilst he was given the Respondent’s standard contract to sign, he was reassured verbally by the manager that his terms and conditions would be different and that he would get morning shifts (the starting time was flexible but it was agreed that it would be no later than 10:00 am), he would not be required to work beyond 12 hours on a given day but if he was required to do so he would be paid for the additional time worked.  

Whilst I did not have the benefit of hearing from any witnesses on behalf of the Respondent, I have perused the documentation submitted to the WRC by the Complainant. The Respondent maintained throughout the documentation that the Complainant was engaged to work a 48-hour working week and not 12-hour days and that he was not entitled to the payment of overtime. Whilst there were occasions on which the Complainant was required to work in excess of 12 hours on a particular day there were equally occasions on which he worked less than 12 hours.

In the circumstances of this case, I am not satisfied that the Complainant has identified any breach of his contract of employment on the part of the Respondent which would amount to a significant breach going to the root of the contract of employment.

The second test I am obliged to consider is the “reasonableness” test. It is well established law that the burden of proof in a constructive dismissal case is on the employee and the burden is extremely high.

In Cedarglade Limited v. Tina Hliban (UDD1843/2018) the Labour Court noted that "the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment" and held that the complainant failed to do so.

In Murphy v. CLI Insurance Services Limited (UD976/2014) the EAT noted that "in a constructive dismissal case the employee must show that because of the employer's conduct he was entitled to resign" and held that the complainant failed to do so.

Similarly, in Burns v. ACM Community Development Society Limited (UD2166/2011), the EAT held that the complainant fell "short of the high bar set to prove constructive dismissal".

The decision in Byrne v. Horwath Bastow Charleston Wealth Management Limited (UD67/2014) sets out the test for proving the very high threshold for constructive dismissal. In this case, the claimant argued her manager had engaged in bullying and harassing behaviour towards her and had raised her concerns with HR. Notwithstanding her discussions with HR, the respondent employer did not believe it was necessary to move the claimant to another reporting line. The claimant chose to resign instead of exhausting the company's bullying and grievance policies claiming that she "had lost confidence in utilising those procedures". The EAT rejected the claimant's case and set out the test for claimants to satisfy in a constructive dismissal case as follows:  "In constructive dismissal cases, the onus is placed on the Claimant to show that her conditions and treatment in the workplace by the Respondent were so intolerable and intractable that she had no other reasonable option but to involuntary resign”.

The burden of proof in a complaint such as this is an onerous one, in that the Complainant must prove not only that the Respondent's behaviour was unreasonable, but also that the Complainant response in resigning was reasonable.

To succeed in a complaint of constructive dismissal it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the case of Beatty v. Bayside Supermarkets (UD147/1987) the EAT held that:

“… it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v. Ulster Bank Limited UD474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of his not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

I found the Complainant to be an honest and credible witness and I am not disputing the bona fides nor the impact of the workplace environment on him. That being said, it is for the Complainant to show on the facts of his case that he meets the high threshold as set out above and I am not satisfied that the Complainant has done so. Whilst the Complainant gave evidence that he raised issues regarding his shifts, his hours of work, the payment of overtime and what he perceived to be unfairness between the treatment he was receiving and what other drivers were receiving he failed to implement and exhaust all avenues at workplace level prior to his resignation on the 16th November 2023. He did not invoke the internal procedures and I am not satisfied that he provided the Respondent with any or any adequate opportunity to investigate his claims prior to resigning and did not provide the Respondent with any opportunity to remedy any issues had any finding supported the Complainant’s claims. Had the Complainant made use of the internal procedures he would have been provided with the opportunity to have his complaint investigated and for any recommendations arising to be implemented or to appeal any findings.

In the particular circumstances of this complaint and upon consideration of all the relevant correspondence, documentation, oral evidence and submissions I find that the Complainant has not demonstrated that the Respondent breached his contract of employment or acted so unreasonably that he was justified in resigning and he has failed to establish that his response was reasonable in all the circumstances. Accordingly, I find that the Complainant has not discharged the burden of proving that he was constructively dismissed pursuant to the 1977 Act.

CA-00061026-002: Terms of Employment (Information Act) 1994

The Complainant’s complaint was that he did not receive a statement in writing on his terms of employment.

Section 3(1) and 3(1A) of the Terms of Employment (Information) Act 1994 as amended (hereinafter referred to as “the 1994 Act”) set out the basic terms of employment which an employer must provide to an employee in written form.

The Complainant’s complaint was that he did not receive a statement in writing on his terms of employment. In evidence he stated that his terms and conditions of employment were not reduced to writing and “everything was verbal”. In response to questions from the Adjudication Officer the Complainant accepted that the Respondent furnished him with a Statement of Main Terms which set out terms and conditions of employment and a Work Force Agreement, copies of which were furnished to the WRC by the Complainant, however he asserted that the documents did not accurately reflect the terms and conditions he agreed in advance of returning to work for the Respondent on the 16th June 2020, namely that he would be scheduled to work morning shifts, his shifts would not exceed 12 hours per day and if they did he would be paid overtime.

Whilst I did not have the benefit of hearing from any witnesses on behalf of the Respondent the Complainant submitted documentation to the WRC and it is apparent from a consideration of same that the parties were at odds over whether the Complainant was required to work longer than 12 hours on a given day and if he was required to do so whether he was entitled to any additional payment for the time worked by him. In response to questions from the Adjudication Officer the Complainant confirmed that when he raised the issue he was informed by the Respondent that his terms and conditions of employment provided for a 48-hour working week and not a 12-hour working day and that the Complainant was not entitled to any additional payment for time worked over 12 hours. 

In the particular circumstances of this complaint and upon consideration of all the relevant correspondence, documentation, oral evidence and submissions I am not satisfied on the evidence before me that overtime and payment in respect of overtime was a core term of employment. However, I find that whilst the Respondent set out the number of hours which it reasonably expected the Complainant to work in a normal working week, namely 48 hours, it did not include the core term provided for under section 3(1A)(e)(i) of the 1994 Act which requires the following [emphasis added]:

3(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:

…

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week. … ”

I therefore find that the Respondent has breached section 3 of the 1994 Act. In determining whether compensation should be ordered for the contravention of the 1994 Act I have had regard to the implications that it held for the Complainant. The non-inclusion of the number of hours the Complainant as a truck driver was expected to work on a normal working day cannot be considered a technical breach and the Complainant gave evidence of the adverse effect the failure to set out this core term had on him. Conversely, I have taken into consideration that the statement in writing of the Complainant’s terms of employment, albeit incomplete, was furnished to the Complainant within the statutory time period.

Considering all the foregoing I find that the complaint is well-founded, and I order the Respondent to pay to the Complainant compensation of €1,280.00, being the equivalent to two weeks’ remuneration, which I deem to be just and equitable having regard to all the circumstances.

CA-00061026-003: Payment of Wages Act 1991

This complaint was withdrawn at the hearing.

CA-00061026-004: Safety, Health and Welfare at Work Act 2005

The issue to be considered under this complaint is whether the Complainant was penalised within the meaning of section 27 of the Safety, Health and Welfare at Work Act 2005 (hereinafter referred to as “the 2005 Act”. In order for that complaint to succeed, the Complainant must show that he committed a protected act as described within section 27 of the 2005 Act, that he suffered a detriment and that the detriment occurred because he committed the protected act.

The Relevant Law

Section 27 of the 2005 Act, in relevant part, provides: -

27(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

As the Labour Court pointed out in Paul O’Neill v. Toni & Guy Blackrock Limited [2010] 21 E.L.R. 1:

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the claimant having committed the protected act he or she would not have suffered the detriment.   This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

The Labour Court also stated:

“… it seems to the court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case; it is apt to infer from subsequent events that the claimant’s complaints were an operative consideration leading to his dismissal. If those two limbs of the tests are satisfied it is for the respondent to satisfy the court, on credible evidence and to the normal civil standard that the complaints relied upon did not influence the claimant's dismissal.”

In ACCHL Limited t/a Homesavers v. Darrell Donnelly HSD256, the Labour Court stated: “[i]t is essential that the Appellant establish that he committed a protected act, within the meaning of Section 27(3) of the Act, before the other elements in this test come into play.”

On the WRC Complainant Form the Complainant stated that he was “penalised for raising health and safety concerns.” No further particulars were provided.  

On the 7th May 2024, the Complainant furnished written submissions to the WRC wherein it was simply stated that “the Complainant briefly contends that he was penalised for raising health and safety concerns”. No further particulars were provided.

Whilst the Complainant gave oral evidence that he raised issues regarding his shifts, his hours of work, the payment of overtime, what he perceived to be unfairness between the treatment he was receiving and what other drivers were receiving and that the unfair and discriminatory treatment, as he described it, was having a detrimental impact on his health, he proffered no evidence of having committed a protected act within the meaning of section 27(3) of the 2005 Act.

In the particular circumstances of this complaint and upon consideration of all the relevant correspondence, documentation, oral evidence and submissions I find that the Complainant has not established that he committed a protected act within the meaning of section 27 of the 2005 Act and therefore it does not fall for me to consider the other elements of the test. Accordingly, I find that this complaint is not well-founded.

CA-00061026-005: Minimum Notice & Terms of Employment Act 1973

The Complainant resigned from his employment with the Respondent on the 16th November 2023 with immediate effect and he commenced employment with a new employer on the 20th November 2023. In circumstances whereby the Complainant resigned his employment, he is not entitled to statutory notice. In such circumstances I find that the complaint is not well-founded.

CA-00061026-001: Unfair Dismissals Act 1977

For the reasons set out above I decide that the within complaint is not well-founded.

CA-00061026-002: Terms of Employment (Information Act) 1994

For the reasons set out above I declare that this complaint is well-founded, and I order the Respondent to pay to the Complainant compensation of €1,280.00, being the equivalent to two weeks’ remuneration, which I deem to be just and equitable having regard to all the circumstances.

CA-00061026-003: Payment of Wages Act 1991

This complaint was withdrawn at the hearing.

CA-00061026-004: Safety, Health and Welfare at Work Act 2005

For the reasons set out above I declare that this complaint is not well-founded.

CA-00061026-005: Minimum Notice & Terms of Employment Act 1973

For the reasons set out above I decide that this complaint is not well-founded.