Complainant

Respondent

Parties

Tasleem -Ur  Rehman

Khattak Limited T/7 Khan Spices

Complainant

Respondent

Anonymised Parties

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Representatives

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-00059197-002

02/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act

CA-00059197-001

02/10/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under oath, one other witness for the complainant gave his evidence under affirmation while three witnesses for the respondent undertook to give evidence under affirmation. 

The hearing was facilitated by an Urdu interpreted provided by the WRC.

The complainant acknowledged that complaint number CA-00059197- 001 relating to the European Works Council was referred in error and that the matter revolved around a constructive unfair dismissal.

The complainant submitted that he was paid a weekly sum of €380 and his employer stated to him that he had to pay €70 tax per employee.  He then suggested he would pay him a lower amount into his bank account and a cash-in-hand amount on top of that.  The complainant stated that he could not agree to this as it was wrong and not fair treatment.  He wanted to leave “there and then” but agreed to remain on for two weeks as the respondent asked him to train in his replacement.

The complainant stated that he did not receive a contract of employment until after a WRC inspection took place.  He stated that there was no employee handbook.  He stated that there was no other issue.

The complainant stated that he was out of work for 5 weeks and accordingly his loss of earnings amounted to €1900.  He subsequently changed this to indicate that he was out of work for 8 weeks and that the amount of his loss came to €3,040.

Under cross examination it was put to the complainant that he was offered his job back.  The complainant stated that he was not offered the job back when he sought it but only when he took the complaint to the WRC.

The witness for the complaint indicated that when he returned from Pakistan, he was told that he would have to work increased hours for the same level of pay.  On this basis he wanted to leave the employment.  The witness confirmed this account under cross examination.

The respondent disagreed with the complainant’s account of events.  He stated that he was off for about three weeks and when he returned the complainant resigned.  He suggested that the complainant resigned probably because he got another job.  He stated that he gave two weeks’ notice.

The respondent stated that the scenario regarding a cash payment was “totally untrue”.  He conceded that there was no employee handbook but noted that there was a grievance procedure hanging up in the restaurant.  He stated that the complainant was paid all monies that were due to him.

The first witness for the respondent indicated that there was a conversation about a reduction in hours and that the three employees indicated that they would leave their employment reduced hours.  He indicated that his boss was present for this discussion, not on holidays.  He stated that all three staff members said that they were going to leave but agreed to remain for two weeks to train in replacements.  There was no cross examination.

Constructive unfair dismissal arises where a complainant is left with no alternative but to leave his or her employment.  All avenues have been explored by him/her but the issues cannot be resolved between the employee and the employer.

Under Section 1 of the Unfair Dismissal Act, 1977 as revised, dismissal is defined as follows:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(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 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, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

The witnesses gave their evidence in a very confusing and conflicting manner.  I am satisfied that this was not down to the interpretation skills of the interpreter on the day.  The complainant indicated that he was left with no alternative but to resign.  However, he later gave evidence that he sought to work with the respondent again.

The account of the witness for the complainant did not support the complainant’s version of events but provided an alternative scenario as to why they resigned.

The witness for the respondent gave evidence which contradicted the owners evidence that he was on holidays when all this occurred while the respondent was indignant that this complaint had been brought at all.

None of the witnesses came across as any more credible than the others.  However, based on the complainant’s evidence that he indicated that once he left the respondent’s employment, he sought to return, I find that he has not established as fact that he had no alternative other than to resign.

In the circumstances, I do not find that the complainant was unfairly dismissed.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint was not unfairly dismissed.

Unfair Dismissal - constructive dismissal not established – conflict of evidence