ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00044530

Parties:

Complaints:

Date of Adjudication Hearing:  14/10/2025, 28/01/2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints 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 for just under two years.  He left his employment following a dispute about pay and he claims that unpaid annual leave and public holiday pay is owed to him.

Summary of Complainant’s Case:

The Complainant was employed as a Labourer by the Respondent from 4 September 2020 until his dismissal on 19 August 2022.  Given the fact that he was on disability benefit he could not work full time but worked when requested to by the Respondent.  A typical working day would be over 10 hours and he was paid €80 per day regardless of what hours he worked.  This would bring him under the prevailing minimum wage.

The Complainant was not provided with a written contract, payslips or documentation in relation to his employment and he was not paid holiday pay during his employment.  He is also due wages in respect of hours worked and not paid.

The Complainant worked alongside a fellow employee who told him he was getting €100 per day for doing the same work.  The Complainant asked the Respondent for a raise and was told “there’s the gate If you are not happy at not getting the raise that you asked for”.

So the Complainant left his employment on 19 August 2022.  Following this, the Complainant and his father were invited to meet the Respondent and his wife at their house.  They expected that the issues would be resolved and the Complainant would return to work.  However, matters were exacerbated and the Respondent was verbally abusive.

Figures were submitted to support the claim that the Complainant worked 362 days between September 2020 and August 2022 and further breakdown of figures were submitted included in which were figures derived from bank statements, cash and information on materials provided to the Complainant.  These figures showed that on the basis of €80 per day, he should have been paid €28,960.  Documents received from the Revenue Commissioners show that for the period between 5 November 2020 and 31 August 2022, his gross earnings were €12,080.  The Complainant’s review of his bank statements show payments totalling €20,765.  An amount of €1,575 for holiday pay was paid on 9th December 2022, although the calculation of same is not clear.  In addition the Complainant was paid €380 cash.  In the premise, the actual pay received was €19,220.

It is submitted that taking into account pay due, pay received, cash received, and materials received in lieu of wages, the Complainant was underpaid his wages in the amount of €8,110.  He was also not paid payment in lieu of notice, annual leave or public holidays.

Unfair dismissal

Section 1 of the Acts define constructive dismissal as

“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”.

It is submitted that the Complainant met the terms of the definition and in circumstances where there were no procedures in the employment, and where there was no written contract but a repudiation of the implied contract, the Complainant could be said to have been constructively dismissed from his employment.

Case law was cited including Office & Industrial Cleaners Ltd v Connolly where the Labour Court held that where an employer’s conduct amounts to a repudiatory breach of the contract of employment in such circumstances the employee would be entitled to consider himself or herself dismissed (“the contract test”).  The “reasonableness test” asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer. 

In McCormack v Dunnes Stores, the EAT held that there is a high burden of proof on the Complainant to demonstrate that he or she acted reasonably and exhausted all  internal procedures  to resolve their grievances with their employer.

In this case, the complainant’s case meets both the “contract test” and the “reasonableness test”.  The Complainant was not provided with written contract or other documentation setting out the terms of his employment.  The Respondent was in breach of obligations under the Payment of Wages Act 1991, the National Minimum Wage Act 2000 and the Organisation of Working Time Act 1997.  It has been shown that the Respondent failed to pay the wages due and failure to pay correct wages is a basic repudiation of a contract of employment.  It is further submitted that the Respondent acted unreasonably by threatening to fire the Complainant if he was not happy to continue to work at below the minimum wage.  The Respondent states that the Complainant failed to follow procedures, without outlining what procedures.  In any event, the Complainant could be said to follow a certain procedure when the Respondent invited him and his father to his house to discuss matters but this ended in a situation of verbal abuse.

Submissions were made on the Payment of Wages Act, National Minimum Wage Act, and Organisation of Working Time Act.  The complaints included claims for back payment of holiday pay and public holiday pay.

Sworn evidence was given by the Complainant.

He stated that he left school at age 18 and his father arranged to get him a job with the Respondent.  The first day he worked was 4 September 2020.  He kept records of his working days from then.   He went to the Respondent at 11.30am on 19 August 2022 and asked for a raise of his daily rate from €80 to €100 as a fellow worker who started around the same time as him and did the same work was paid €100 per day.  The Respondent said he would not be raising his pay and if he wasn’t happy with that “there’s the gate”.   The Complainant said that he and his father went to the Respondent’s home and the Respondent and the Complainant’s father agreed that what was owed would be paid. He had a record of 130 days pay owed and his holiday pay owed and not paid. 

Sworn evidence was given by the Complainant’s father.  He stated that his son, the Complainant rang him on the day and told him what happened when he looked for a raise.   He accompanied the Complainant to the Respondent’s house and they agreed that when the Complainant and his wife came back from a holiday that all money owed would be paid.  At that stage he did not have the exact calculations of wages owed. He had no knowledge of a complaint being made to An Garda Siochana about him by the Respondent. 

Summary of Respondent’s Case:

The Claimant commenced employment with the Respondent on the 5th October 2020 as a labourer. The Complainant and Mr Coogan agreed that the complainant would be paid €80 per day. Mr. Coogan later received a text message from the Complainant’s father advising that he should not give the Complainant too many hours as he would lose his social welfare entitlements.

The Complainant’s was paid €80 per day. The Complainant did not hold qualifications and could not drive. He was picked up from home each day and brought to work and dropped back each evening.

He was employed on an ad hoc basis. The Complainant would cease working with the Respondent in mid-October until December as he sold Christmas trees with his father. It was furthermore agreed between the parties, that the Complainant could take materials in lieu of his holiday pay.

The Complainant worked in this role until the 19th August 2022. On that day, the Complainant approached Mr Coogan of the Respondent and requested a pay increase. He told Mr. Coogan that he understood a co-worker, PM, was receiving €100 per day and he required the same. Mr. Coogan advised that he was not in a position to increase wages at that time. Mr. M was a qualified electrician who could drive and was paid commensurately.

Mr. Coogan was about to leave on a trip on 1st September and so he asked the Complainant to refrain from making a rash decision and to discuss the matter when Mr. Coogan returned.

Later that day, at 4:30pm, Complainant again approached Mr. Coogan and advised that he was resigning. Mr. Coogan asked him to re-consider but he declined. The following morning, the Complainant’s father was waiting for Mr. Coogan on the road near his home. The Complainant’s father threatened Mr Coogan saying that he would pull him ‘out of his jeep and f*cking kill him’. This matter was the subject of a Garda report.

The Complainant did not return to work and the Respondent considered that he had therefore resigned. Mr Coogan instructed his accountant to calculate sums due to the Complainant. Holiday pay was calculated at €1,575. Mr. Coogan contacted the Complainant’s father and advised a cheque was ready for the Complainant. This cheque was not collected. The Respondent then made a bank transfer to the Complainant in the sum of €1,575 on 8th December 2022.

This payment issued despite the fact that the Complainant had received materials from the Respondent and they remain unpaid for.

Burden of Proof

In the case of Harkin V Guinness Storehouse Limited, the EAT examined the test to be applied and considered to establish whether the ‘very high’ burden of proof required to establish a constructive dismissal has been met. ‘The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the claimant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract. “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” If the tribunal is not satisfied that the “contract” test has been proven then it is obliged to consider the “reasonableness” test. “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving” When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate his contract of employment.’

The EAT also considered the circumstances when a constructive dismissal will occur in the case of Murray V Rockabill Shellfish Ltd.

A constructive dismissal will occur when an employee terminates his Contract of Employment where, because of the employer’s conduct, the employee was entitled to terminate his Contract without notice or where it was reasonable for him to do so. It has been well established that a question of constructive dismissal must be considered under two headings – entitlement and reasonableness. An employee must act reasonably in terminating his Contract of Employment. Resignation must not be the first option taken by an employee and all other reasonable options, including following the grievance procedure, must be explored. An employee must pursue his grievance through the procedures laid down before taking the drastic step of resigning. The Tribunal has to decide whether the Claimant was constructively dismissed. It is clear that the Claimant resigned from his employment on the 25th June 2010. The Claimant is claiming that he was dismissed by construction as envisaged by Section 1of the Unfair Dismissals Act 1977 (the Act). Although the term ”Constructive Dismissal” is not specifically mentioned in the Act, it is the term commonly understood to refer to that part of the Definition Section of the Act, which states: “dismissal in relation to an employee means the termination by the employee of his contract of employment with his employer whether prior notice of determination 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 employee”.

The Tribunal must consider whether because of the Employer’s conduct the Claimant was entitled to terminate his contract or it was reasonable for him to do so. An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.

The claimant did request a raise in his pay and when this was declined, he told his employer he would no longer continue to work there.

In one of the first cases on constructive dismissal, Conway V Ulster Bank, the EAT held that complaint did not act reasonably in resigning ‘without having first substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the appellant did not use it.’ The EAT dismissed her claim.

The claimant raised no grievance with his employer but instead tendered his resignation. The employer had no notice that there was an issue with the rate of pay until that day. The Complainant requested a pay increase, and resigned within hours of that request being denied. The first and only action the Claimant took was to resign and it is the case of the Respondent that this was an unreasonable action to take.

It is the position of the Company that there was no conduct on their behalf which can amount to a significant breach of the going to the root of the contract or that shows that the Company no longer intended to be bound by one or more of the essential terms of the contract.

Reasonableness

The case of Berber –v- Dunnes Stores 2009 ELR61 is a case which was also quoted where Finnegan J stated “The conduct of the employer 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 as such that the employee cannot be expected to put up with it”

It is the case of the Respondent that the Claimant has not adverted to any evidence of conduct so unreasonable that he could no longer be expected to work for the Respondent.

It is further submitted that the Claimant acted wholly unreasonably in dealing with the Respondent. The Claimant raised the issue of his rate of pay once and resigned that same day. He therefore gave the Respondent no opportunity to deal with the matter.

In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981.

An employer could not be expected to deal with an employee’s grievances in circumstances where an employee has failed to notify it of issues through the grievance procedure or otherwise.

It is submitted that the Claimant has failed to bring any such alleged conduct to the attention of his employer. The Claimant has further failed wholly to engage the grievance procedure and therefore not provided his employer any opportunity to address his concern.

It is submitted that the Complainant has simply not met the extremely high burden of a constructive dismissal in all of the circumstances and that the claim should be dismissed.

Sworn evidence was given by the Respondent, Mr John Coogan.  He stated that he employs some 3 or 4 staff engaged in fencing contracting.  The Complainant’s father asked him to take his son on for 2 or 3 days a week.  The circumstances on 19 August 2022 were that the Complainant came to him and complained that another employee was getting more money than him and he wanted the same rate.  When Mr Coogan asked him to wait until he got back from Australia and they would deal with it then, the Complainant said no, that he had spoken to his father and he was leaving the job.  The next day, the Complainant’s father came up to him and threatened him.  After a meeting in his house, Mr Coogan was of the view that holiday pay was what was the issue and he arranged for the Accountant to have the sum of €1,545 paid to him by bank transfer.   The Complainant’s father told him to “shove it….” And the next he heard was the WRC complaint.  In relation to the number of days worked, Mr Coogan said that the Complainant kept an account of his hours, that he did not work on a regular basis and that the firm paid him for the hours claimed.

Sworn evidence was given by the Respondent’s wife whose job was to send the records of hours worked by the staff to the Accountant for payment.  Payslips were available before Covid but mainly they ended up under the seats in the vans.  She made out the annual leave pay due on the basis of hours worked and gave it to the Accountant.

Sworn evidence was given by the Accountant who confirmed that she arranged for payment of annual leave and public holidays on the basis of the information sent by Mrs Coogan.  She said that while September at the beginning of his employment was a trial period, he was actually paid for this in December.  She was told the Complainant left his employment in August 2022 and she was to calculate the wages due for annual leave and to round it up by a day and a half, from 18.5 to 20 days.

Findings and Conclusions:

It is noted there are disputes between the parties about almost all elements of the employment of the Complainant, including the date of beginning of the employment.     The Complainant’s employment ended on 19 August 2022.

Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

The complaint was received on 13 February 2023.  The cognisable period therefore is from 14 August 2022 to 19 August 2022 when the employment ended.

It is noted that much of the Complainant’s submissions were taken up with claims of unpaid wages, disputes over what was owed and what was paid.  This element of the complaint has been referred by the Complainant to the Inspectorate Division, a separate division of the Workplace Relations Commission and is not within my jurisdiction.

CA-00055049-003           Unfair Dismissals Act 1977

I note there was a conflict of evidence as to whether the Complainant was “shown the gate” or whether he left of his own accord when the Respondent responded negatively to his request for an increase in his rate.  The claim in the original complaint from the Complainant and in the written and oral submission was that he was constructively dismissed.  I note there was a conflict of evidence also about what transpired when the Complainant and his father went to the Respondent’s home to discuss the matter.  It appears this ended in the Respondent calculating the holiday pay owed and while the Respondent gave evidence that the matters were to be resolved on his return from abroad, I find no evidence that he made any effort to have the Complainant return to work or reconsider the issue of leaving.

I accept the Complainant’s evidence that when he looked for more money, the Respondent told him he was not getting an increase on the rate and if he was not happy he could leave.  The Complainant took this literally and in circumstances where there was no written contract of employment or no evidence of procedures in the employment, I find that the Complainant had no apparent avenue to explore if matters could be resolved and this led him to consider his employment was at an end.  Even if the Respondent considered that the Complainant resigned when he stated that having spoken to his father he was leaving, there was some onus on the Respondent to verify if the resignation was truly intended.  This did not happen and the Respondent’s submission simply says that when the Complainant did not return to work his holiday pay was calculated and paid. 

In the circumstances, I find the Complainant was unfairly dismissed and the complaint is well founded.

In relation to remedy, I find that compensation is appropriate in circumstances where the employment relationship is irretrievably broken.  There is an onus on Complainants to mitigate their losses and the Complainant failed to provide any evidence of seeking employment.   I award him the sum of €1,600 compensation.

CA-00055049-004           Minimum Notice & Terms of Employment Act 1973

As the Complainant left his employment he was not entitled to minimum notice.  This complaint is not well founded.

CA-00055049-005           Organisation of Working Time Act 1997

This complaint is for compensation for annual leave.

Section 19 of the Act provides for annual leave to be calculated on the basis of 4 working weeks in a leave year or 8 per cent of hours worked subject to a maximum of 4 weeks.

Section 23 of the Act provides for compensation on cessation of employment where

In this case, I note the Respondent has paid the Complainant for the annual leave accrued in the year of cessation of his employment.

I find the complaint to be not well founded.

CA-00055049-006           Organisation of Working Time Act 1997

This complaint is in respect of public holidays.  As there were no public holidays within the cognisable period, I find the Complaint to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00055049-003           Unfair Dismissals Act 1977

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.            Based on the findings and reasons above, I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €1,600 compensation.

CA-00055049-004           Minimum Notice & Terms of Employment Act 1973

Section 12 of the Act requires that I make a decision in respect of any contravention of that Act.

Based on the findings and reasons above, I have decided that the complaint is not well founded.

CA-00055049-005           Organisation of Working Time Act 1997

Section 27 requires that I make a decision in respect of any contravention of that Act.

Based on the findings and reasons above, I have decided that the complaint is not well founded.

CA-00055049-006           Organisation of Working Time Act 1997

Section 27 requires that I make a decision in respect of any contravention of that Act.

Based on the findings and reasons above, I have decided that the complaint is not well founded.

Dated:   10-04-26

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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