ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00049039
Parties:
| Complainant | Respondent |
Parties | Zeyko Blazevic | Premier Turnkey Ltd Hyde Interiors |
| Complainant | Respondent |
Anonymised Parties |
|
|
Representatives | In person. | Peninsula Business Services Ireland |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006 | CA-00058983-001 | 22/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00058983-002 | 22/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00058983-003 | 22/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00058983-004 | 22/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00058983-005 | 22/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00058983-006 | 22/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00058983-007 | 22/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00058983-008 | 22/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00058983-009 | 22/09/2023 |
Date of Adjudication Hearing: 26/06/2024
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant was employed by the respondent as a warehouse manager. Employment commenced on 8th December 2021 and ended on 19th May 2023. This complaint was received by the Workplace Relations Commission on 22nd September 2023. |
Summary of Complainant’s Case:
CA – 00058983 – 001 The Complainant contends that he was not paid annual holiday / leave entitlement (European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation Regulations 2006. S.I. No. 507 of 2006). CA – 00058983 – 002 The Complainant contends that he was not issued with a statement of his terms of employment (Terms of Employment (Information) Act 1994. CA – 00058983 – 003 The Complainant contends that he had to leave his job due to the conduct of his employer or others at work and that he had at least 12 months service. Unfair Dismissals Act 1977. CA – 00058983 – 004. The Complainant contends that he penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005. CA – 00058983 – 005. The Complainant contends that his employer has not paid him or has has paid him less than the amount due to him. Payment of Wages Act, 1991. CA – 00058983 – 006. The Complainant contends that he did not receive the appropriate payment in lieu of notice of termination of his employment (Payment of Wages Act, 1991). CA – 00058983 – 007. The Complainant contends that he was required to work more than the maximum number of hours (Organisation of Working Time Act, 1997). CA – 00058983 – 008. The Complainant contends that he did not receive advance notification of any additional hours required(Organisation of Working Time Act, 1997). CA – 00058983 – 009. The Complainant contends that he did not receive a statement of his core terms in writing under the Terms of Employment (Information) Act, 1994. In his own words the Complainant states the following: · The complainant contends that he was not treated equally and was also humiliated by some who worked with him. He also contends that work colleagues were laughing at him. · The complainant also contends that a company vehicle was taken from him and this made travelling to and from work very difficult for him, especially in winter. · The treatment that the complainant was experiencing from the general manager was unacceptable. · No other employee was treated the way the complainant was. The complainant believes this is due to the fact that he is not Irish and the other employees are Irish. · The complainant contends that he was not included in decision making in relation to the warehouse and yet he was the warehouse manager. · The complainant contends that there were many health and safety hazards in the warehouse. · The complainant contends that he was verbally threatened for trying to report health and safety concerns. |
Summary of Respondent’s Case:
Introduction 1. Premier Trunkey Ltd appear as the respondent in this matter. They employ 16 currently in various different roles. 2. Mr Zeyko Blazevic appears as the complainant. He was employed by the respondent as a warehouse manager as prescribed within his statement of main terms and conditions of employment. 3. He has referred a number of claims to the Workplace Relations Commission (WRC) where he alleges he was unfairly dismissed, that he did not receive a statement of his terms and conditions of employment, he alleges penalisation in accordance with s.27 of the Safety Health and Welfare at Work Act 2005, he alleges he did not receive his annual leave entitlement nor his notice and that he was not notified in advance of additional hours. 4. The complainant’s dismissal is in dispute. Background 5. The complaint commenced employment as a Warehouse manager for the respondent on the 8th of December 2021. He managed the warehouse in accordance with the respondents’ instructions. 6. On the 25th of January 2023 a performance review meeting took place which identified a number of areas of concern. 7. Following an investigation in relation to smoking in the workplace, the complainant was invited to a disciplinary hearing on the 9th of March 2023. 8. On the 14th of March 2023, the complainant submitted a sick certificate stating that he was suffering form a medical illness. This certified the complainant unfit for work form the 14th of March to the 24th of March 2023. 9. On the 24th of March a further medical certificate was submitted stating the complainant was suffering from a medical illness and was unfit to attend work from the 27th of March to the 7th of April 2023. 10.On the 19th of April 2023 the complaint submitted a further illness certificate stating that he was unfit to work from the 10th of April to the 21st of April 2023. 11.On the 4th of May 2023, the complainant wrote to the respondent via What’s App. He stated; Hi Rob, hope you are doing well. I am writing to tender my resignation from my position of warehouse manager at Hyde Interiors. 12.In this message he confirms that he would finish on the 19th of May 2023 as his statement of main terms required it. 13.Mr Brady was on annual leave at that time and replied that he would respond upon his return. 14.On the 23rd of May in response to the complaints resignation he asked if it was his real intention to do so. Complaints CA-00058983-001 15.The complainant has referred that he was not afforded the correct annual leave in accordance with Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 – SI No 507 of 2012. 16.The respondent is not an employer in that sector of the economy. 17.The respondent can confirm that the annual leave accrued by the complainant within the employment was fully discharged. CA-00058983-002 18.The complainant alleges he has not received a copy of his main terms and conditions of employment in accordance with s.3(1) of the Terms of Employment (Information) Act 1994 as amended. 19.The respondent provides a copy of that statement within this submission. CA-00058983-003 20.The complainant refers that he was dismissed in accordance with s.1 of the Unfair Dismissals Act. 21.The respondent refers to the text message from the complainant in which he states that due to his back injury he was not able to return to work. 22.The respondent confirms that the complainant at no stage of the employment raised any grievance in relation to his employment. 23.The respondent submits that due to the complainant’s failure to raise any grievance during his employment alleging that he was treated adversely, a claim for unfair dismissal must fail. CA-00058983-004 24.The complaint refers that he was penalised for either complying with or making a complaint under the Safety Health and Welfare at Work Act 2005 (Act of 2005). 25.The complainant has not identified in what way he believes he was penalised. 26.The respondent wholly denies that they have penalised the complainant in accordance with s.27 of the Act of 2005. 27.The complainant has not referred to a date in which he raised an issue that relates to s.27(3) of the Act of 2005. Moreover, he has failed to set out the penalisation complained of. 28.The respondent is at a disadvantage in defending this claim as the particulars of same have not been set out. CA-00058983-005 29.The complainant refers that he has not been paid or has been paid less that the amount due to him. He qualifies this amount on page 8 of his compliant form in the amount of €1,538.46. he states that the amount owing refers to a two week back pay in operation within the employment. 30.The respondent submits that they have discharged all the amounts owing to the complainant for the period of employment. CA-00058983-006 31. The complainant refers that he did not receive the appropriate payment in lieu of notice of termination of his employment. 32.The respondent submits that the complainant submitted his resignation on the 4th of May 2023 and advising that his official last day was the 19th of May 2023. 33.In those circumstances, the complainant issued and complied with the notice period within the contract of employment. 34.The respondent submits that the circumstances of the instant case do not raise an issue of notice from the respondent and that no monies are owing due to the fact that the complainant issued notice of two weeks. CA-00058983-007 35. The complainant refers that he is required to work more that the maximum hours required under s.15 of the Organisation of Working Time Act 1997 (the Act of 1997). 36.The respondent has provided the wage slips for a period of the employment within the cognisable period of this complaint. 37.From the wage slips provided it clearly show that the complainant has not worked in excess of the provisions provided for within s.15 of the Act of 1997. CA-00058983-008 38.The complainant refers that he was not notified in advance of any additional hours. 39.The respondent submits that the complainant was their manager, and it was a matter for him to notify management of any extra hours that either himself or other employees of the respondent were to work. 40.This would depend on any particular job at any particular time. 41.The complainant at no time during the period of employment made any issue out in regard to notification of extra hours to be worked. 42.The extra hours worked were renumerated by way of overtime and dependant upon what work was done and advised by the complainant, he was always paid the hours he says he carried out. CA-00058983-009 43.The complainant contends that he did not receive a statement of his core terms of employment in accordance with the Terms of Employment (Information) Act 1994, the Act of 1994. 44.The respondent submits that a copy of the core terms was submitted to the complainant however they do not seem to have copy of file. 45.The respondent refers to pages 130,143 & 153 where the complainant has provided various pictures. As part of the collection, he exhibits pictures of his main terms and conditions of employment. 46.It is accepted by the respondent that they do not have a copy of the complainants core terms in which to exhibit as part of these proceedings. Legal Submission · The respondent has fully complied with s.3(1) in relation to complainant CA-00058983- 002
· The respondent refers to s.1 of the Unfair Dismissal Act 1977 as amended (the Act of 1977 wherein it states; “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;
· For the purpose of this matter the claimant refers that by the conduct of the respondent he was left with no other option but to resign his position. · The respondent confirms that the complainant at no stage raised any grievance in relation to any fundamental clause within his contract of employment for which he believed the respondent repudiated said contract. · The respondent refers to s.1 of the Unfair Dismissal Act 1977 as amended (the Act of 1977 wherein it states; “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; 50.For the purpose of this matter the claimant refers that by the conduct of the respondent he was left with no other option but to resign his position.
· The respondent confirms that the complainant at no stage raised any grievance in relation to any fundamental clause within his contract of employment for which he believed the respondent repudiated said contract. · The bar for constructive dismissal is set very high as set out in Nicola Coffey v. Connect Family Resource Centre ltd. (UD 1126/2014. · In Western Excavating (ECC) ltd. v. Sharpe [1978] ICR 221: [it was held]: “If an 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 case law suggests that the complainant first exhaust the internal procedures prior to issuing a resignation. · The Respondent refers to the Labour Court decision of UDD1810 (2018), Tusla v Flynn, which found: “Firstly, Section 1 of the Act envisages two circumstances in which a resignation will be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to resign his position, often referred to as the “contract test”. This requires that an employer be “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” as held in Western Excavating (ECC) Ltd v Sharp (1978) IRL332.
Secondly there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so she is justified in leaving.”
· In the Labour Court case of Caci Non-Life Limited v Daniela Paone [2017] UDD 750, the Chairman, Mr Haugh stated: “It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective”.
The Respondent also refers to the Tribunal decision in Barry v Precision Software Ltd. (UD 624/2005) [2006] JIEC1801 the Tribunal said: “… “It is not for the Tribunal to intrude into the Respondent’s managerial decisions. The Tribunal has to look at what a reasonable employer would do in the circumstances. Neither is it for the Tribunal to consider what sanction it would impose. The Tribunal’s function is to decide whether the employer’s reaction and sanction came within the range of responses, which a reasonable employer might make.”
The respondent further refers to A General Operative v. A Religious Society (ADJ - 00002814) it was held by the Workplace Relations Commission that in claims of constructive dismissal: ‘repudiation of the contract of employment…In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour’.
Finally, the respondent refers to Debbie Kearns v Silverfern Properties Ltd.(UD2428/2010)“In order to succeed in a claim of constructive dismissal a claimant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.” · The complainant as per his text messages sent to the respondent clearly sets out the due to his ongoing back problem he was resigning. In regard to CA-00058983-004 the complainant alleges that he suffered penalisation under s.27 of the Safety Health Welfare at Work Act 2005. The Act states: Protection against dismissal and penalisation. S27 (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. S 27(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. (4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a). (5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts. (6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time. (7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them. · The respondent has not acted in any way that could amount to a breach of s.27 of the Act of 2005. The complainant does not set out the events that he claims complies with s.27(3) which led to the respondent acting by circumventing s.27(2) as set out above. · The respondent further refers to s.27(5) and asks as to which Act the complainant wants to pursue in the within complaint.
Organisation of Working Time Act. The respondent refers to CA-00058983-007 where the complainant alleges that he was working in excess of those hours allowable under law. The respondent refers to s(15) of the Organisation of Working Time Act 1997 whereby it states: Weekly working hours. 15.(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed— (a) 4 months, or (b) 6 months— (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or (ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection. · The respondent submits that within the employment contract the complainant did not work average hours of in excess of 48 over a period of 16 weeks. Conclusion. The respondent in this matter has complied with their obligations under the various Acts as set out within this complaint. |
Findings and Conclusions:
I have carefully considered the complaints presented by the complainant and now conclude as follows: CA – 00058983 – 001 The Complainant contends that he was not paid annual holiday / leave entitlement (European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation Regulations 2006. S.I. No. 507 of 2006). The complainant does not work in the civil aviation industry and therefore cannot pursue the complaint as presented. I believe the complainant has made an error in completing the WRC complaint form however I must make a finding on the complaint as presented. This complaint is not well founded. CA – 00058983 – 002 The Complainant contends that he was not issued with a statement of his terms of employment (Terms of Employment (Information) Act 1994. The respondent representative has stated that a statement was issued to the complainant however the respondent was unable to locate a copy of said statement. The complainant whilst he alleges that no statement was issued to him included a copy of said statement in the papers submitted to the WRC. This complaint is not well founded. CA – 00058983 – 003 The Complainant contends that he had to leave his job due to the conduct of his employer or others at work and that he had at least 12 months service. Unfair Dismissals Act 1977. On the 20th April 2023 the complainant sent a text to the manager, part of this text reads as follows: “Hi Rob, hope you’re doing well. I am writing to tender my resignation from my position of Warehouse Manager at Hyde Interiors, with my last day of employment being 19th May 2023 in accordance with the notice period of two weeks in my employment contract. Due to the back injury, I am not able to return to work as I am not able to lift heavy objects like sofas. I have tried my best to get back to work, but my doctor said for my health and well being it’s better to find a job that doesn’t require heavy lifting…….....” There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist they should be followed. In Conway v Ulster Bank UD474/1981 the Employment Appeals Tribunal considered that the claimant did not act reasonably in resigning without first having ‘substantially utilising the grievance procedure to attempt to remedy her complaints’. Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment. At the very least an employee should communicate his or her grievance before resigning. In the instant case the complainant did not utilise any grievance procedure in place. In conclusion I have no alternative but to find that this complaint is not well founded. CA – 00058983 – 004. The Complainant contends that he penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005. There does not appear to be any formal complaints made by the complainant and no act of penalisation was mentioned at the hearing of the complaint. The complaint as presented is not well founded. CA – 00058983 – 005. The Complainant contends that his employer has not paid him or has paid him less than the amount due to him. Payment of Wages Act, 1991. The complainant contends that he was not paid two weeks’ pay at the end of his employment, he believes that this is the two weeks back pay from the commencement of employment. The amount being sought by the complainant is €1538.46. It is a common belief on the part of some employees that the so called ‘back week’, or in this case fortnight, remains in place until they leave employment. This is not so. In a back week situation, the wages for week 1 are paid in week 2 and so on. I note in the instant case that the employee was on a period of absence when he resigned. The last payment should have been received at the end of the first two weeks of absence. The representative for the respondent stated that the complainant received all wages due to him and included wage slips in support of this statement. In conclusion I must find this complaint not well founded. CA – 00058983 – 006. The Complainant contends that he did not receive the appropriate payment in lieu of notice of termination of his employment (Payment of Wages Act, 1991). The complainant resigned from his employment. There was no payment in lieu of notice due to him. This complaint is not well found. CA – 00058983 – 007. The Complainant contends that he was required to work more than the maximum number of hours (Organisation of Working Time Act, 1997). The complainant was employed as a warehouse manager. In this capacity he would manage his own hours of work. The complainant has failed to provide particulars of dates and times he was required to work. In the absence of such particulars, I have to find this complaint not well founded. CA – 00058983 – 008. The Complainant contends that he did not receive advance notification of any additional hours required(Organisation of Working Time Act, 1997). The complainant was employed as a warehouse manager. In this capacity he would manage his own hours of work. The complainant has failed to provide particulars of dates and times he was required to work. In the absence of such particulars, I have to find this complaint not well founded. CA – 00058983 – 009. The Complainant contends that he did not receive a statement of his core terms in writing under the Terms of Employment (Information) Act, 1994. New legislation (The Employment (Miscellaneous Provisions) Act 2018 introduced an expanded “contract of employment” and therefore, the Act applies to any person · Working under a contract of employment or apprenticeship….. Since 4TH March 2019 employees commencing employment must now be issued with a 5-Day Statement. Such a statement must include the following:
In the instant complaint the complainant was not issued with this 5 Day statement. I find that this complaint is well founded and now order the respondent to pay compensation to the complainant in the sum of €1,538.46 gross. Such payment should be made to the complainant within 42 days from the date of this decision. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) 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.
As outlined above. |
Dated: 28-05-25
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
|