ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00056590

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, 2015following 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 complaints were submitted under the Unfair Dismissals Act, Minimum Notice & Terms of Employment Act and Organisation of Working Time Act following the end of the employment of the Complainant.  Two hearings were held during which written and oral submissions were considered.

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 “you’re not getting a raise and there’s the door if you don’t like that”.

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.

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 adhoc 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 John Coogan of the Respondent and requested a pay increase. He told Mr. Coogan that he understood a co-worker, Paul Murray, 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. Murray 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 €1575. 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 €1575 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 “an 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 requested 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.

Findings and Conclusions:

It is noted there are disputes between the parties about all elements of the employment of the Complainant, including the date of beginning of the employment.    Notwithstanding, the complaint was received on 10 January 2025.   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”.

This complaint was received some 2 years and almost 5 months after the end of the Complainant’s employment.  The complaint is clearly out of time and I have no jurisdiction in the matter.  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.

For the reasons and findings above, the complaints are out of time and not well founded.

Dated:   10th April 2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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