Complainant

Respondent

Parties

Norbert  Batho

Timber Frame Projects Limited Timber Frame Ireland

Representatives

Jane O'Sullivan Community Law and Mediation Northside

 Mr Declan Bourke, Respondent

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-00056491-001

05/05/2023

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

CA-00056491-003

05/05/2023

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

CA-00056491-004

05/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00056491-006

05/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00056491-007

05/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00056492-001

05/05/2023

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

CA-00056492-003

05/05/2023

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

CA-00056492-004

05/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00056492-006

05/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00056492-007

05/05/2023

The complainant, Mr Batho, was employed with a Director of the respondent company, Mr Declan Bourke, when Mr Bourke was self employed.  His employment was subsequently changed to the respondent company.  The company argues, that as no transfer of undertaking took place, the complainant has less than 12 months service and therefore the Unfair Dismissals Act does not apply.

Mr Batho raised an issue regarding newly installed CCTV and shortly afterwards was issued with a revised contract reducing his hours.  He alleges that this was penalisation for making a Protected Disclosure.

Evidence was given under oath/affirmation by the complainant and by Mr Bourke on behalf of the respondent.  All evidence was subject to cross examination.

All submissions received were considered by me in reaching my decision.

Complaints CA-00056492-001, CA-00056492-002, CA-00056492-003, CA-00056492-004, CA-00056492-006, CA-00056492-007 are duplicated complaints and are comprehended in my decision.

There are five complaints before the Workplace Relations Commission upon which the Complainant is seeking adjudication, namely:

1.       Constructive dismissal of the Complainant by the Respondent within the meaning of section 1 of the Unfair Dismissals Act 1977;

2.       A failure by the Respondent to provide the Complainant with a ‘Written Statement of Terms’ in breach of section 3 of the Terms of Employment (Information) Act, 1994; 

3.       A failure by the Respondent to provide the Complainant with a ‘Day 5 Statement of Terms’ in breach of section 3 of the Terms of Employment (Information) Act, 1994; 

4.       Penalisation of the Complainant by the Respondent for having made a Protected Disclosure under the Protected Disclosures Act 2014, in breach of section 12(1) of the Protected Disclosures Act 2014; 

5.       A failure by the Respondent to keep statutory employment records in breach of Regulation 12 of S.I. No. 36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012;

It is submitted on behalf of the Complainant that the Respondent 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, by reason of: (a) its unilateral alteration of the core terms of employment, and (b) its violation of the implied mutual obligation of trust and confidence. These two grounds are dealt with in turn below.

Due to the Respondent’s failure to furnish terms and conditions of employment to the complainant, it is first necessary to identify and establish the contractual terms of the Complainant’s employment, in order to subsequently demonstrate the occurrence of a repudiatory breach thereof. The uncontested evidence of the Complainant is that he entered into an agreement with the Respondent whereby he would work full-time and receive a net pay of €13.50 per hour. The situation which subsequently prevailed between the parties for a period of 16 months was that the Complainant worked an average of 52 hours per week and received an average net weekly pay of €583.

The Complainant undertook a wide range of duties in his role with Timber Frame Projects Limited, including: general warehouse operations assisting with the manufacture of timber frame homes within the factory, stacking panels and loading lorries for dispatch and delivering materials nationwide. In particular, the Complainant carried out extensive welding duties in the workshop in the construction of timber frame homes. Although the Respondent submits that the Complainant’s duties only ever comprised driving supplemented by general duties to keep him in full-time work, this is at odds with the Respondent’s email offering him a full-time position encompassing both driving and general duties.

Mr Bourke issued a written contract of employment to the Complainant on 26 October 2022, shortly after the Complainant raised issues regarding the installation of CCTV in the workplace. This contract reduced the Complainant’s hours from full-time to allocated hours only, consequently reducing his pay. In addition, the contract purported to reduce the Complainant’s duties to driving only, as opposed to driving and general duties. Finally, Mr Bourke sought to introduce a variation clause into the contract of employment empowering the Respondent to reduce the Complainant’s working hours, “where through circumstances beyond its control” the Respondent was “unable to maintain you in full-time work or your regular hours of employment”. The Complainant did not sign this proposed contract as it did not accurately reflect the terms of his employment.

It is submitted that, in imposing this purported contract without consent or consultation, the Respondent sought to unilaterally alter the core terms of the Complainant’s employment contract, amounting to a repudiatory breach of contract such that the Complainant could consider himself constructively dismissed.

Once it is established that a provision forms part of the contract of employment rather than a mere work practice, it is well-settled that an alteration of such a core term amounts to a variation. In particular, an attempt by an employer to alter fundamental terms relating to remuneration constitutes a repudiatory breach of contract. As Browne-Wilkinson J observed in RF Hill v Mooney [1981] IRLR 258 : 

 “The obligation on an employer to pay remuneration is one of the fundamental terms of a contract. In our view, if an employer seeks to alter that contractual obligation in a fundamental way... such attempt is a breach going to the very root of the contract and is necessarily a repudiation”.

It is clear from the express intentions of the parties and the situation which prevailed between the parties that the above outlined are the terms which formed the core of the employment contract. The Respondent, without consultation or consent, sought to unilaterally alter these terms – namely the Complainant’s duties, hours and consequently pay. The Complainant did not consent to these changes. On the contrary, he expressly objected to them, communicated his dissatisfaction to the Respondent, and made it clear that he would only remain in employment if his original terms were reinstated. His short period of continued employment and agreement to fulfil a delivery following the alteration was not indicative of consent, but rather, reflected the Complainant’s fulfilment of his notice period and a conditional willingness to remain while seeking to resolve the issue. The fact that the Respondent advertised a full-time driver/welder position shortly after the Complainant’s departure further supports the notion that any such “reduced demand” was not only illusory, but selectively invoked in respect of the Complainant.

 However, without prejudice to this primary submission, it is further submitted that the Respondent also breached the implied term of mutual trust and confidence which underpins every contract of employment. The Complainant’s raising of a genuine concern regarding the installation of CCTV in the workplace was followed almost immediately by what was, in effect, a disciplinary sanction. The Respondent issued a proposed contract which unilaterally sought to reduce the Complainant’s duties, hours, and pay. Concurrently, the Respondent raised several prior disciplinary issues – each of which had been addressed only through informal “verbal warnings” – and imposed a financial penalty on the Complainant without invoking any formal disciplinary procedure. Furthermore, the Respondent failed to engage with the Complainant’s attempts to explain his position or resolve the matter and made no effort to address his concerns through any proper grievance procedure

As set out in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, the reasonableness test asks whether the employer:

 “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, [if so] the employee is justified in leaving.”

 As such, the test of reasonableness contains two elements which fall to be established: 

 a.           The conduct of the employer was so unreasonable that the employee can no longer tolerate his employment; and

b.            The employee acted reasonably in resigning.

It is submitted that, similar to the determination of the Tribunal in  Allen v Independent Newspapers [2002] 13 ELR 84, the Complainant acted reasonably in bringing his grievances to senior management on the following occasions:

•                   A verbal complaint to Mr McDonagh regarding the installation of CCTV on 16 October 2022. 

•                   Complaint to Mr Bourke and Karen Bourke by WhatsApp message that he felt he was being forced out of his job. In this message, he provided two weeks’ notice but offered to stay in employment if his former terms and conditions of employment could be reinstated.

 It is submitted that, once it became aware of the Complainant’s issues, it was incumbent on the Respondent to make the Complainant aware of the formal grievance procedure available and ensure that the same was effective. In this regard, we refer to S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 which provides that (“S.I. No. 146/2000”), at a minimum, grievance and disciplinary procedures should be in writing, presented in a format and language that is easily understood and given to all employees at the commencement of employment.

Terms of Employment

Section 3 of the 1994 Act provides that: 

 “(1) An employer shall, not later than 2 months 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….”

 Section 3(1A) of the1994 Act provides that: 

 “(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…”

 Section 3(4) of the 1994 Act provides that: 

 “(4) A statement furnished by an employer under subsection (1) or (1A) shall be signed and dated by or on behalf of the employer.”

The Complainant commenced employment on or around 11 July 2021 and was neither provided with a statement within the meaning of section 3(1) i.e. a ‘Written Statement of Terms’ or 3(1A) i.e. a ‘Day 5 Statement of Terms’ at any time during the course of his employment with the Respondent. After over a year in employment with the Complainant, the Respondent provided him with a proposed contract which did not accurately reflect the terms and conditions the Complainant had formerly enjoyed in his employment. It is submitted that, for the reasons outlined above, the proposed contract did not constitute a valid statement of written terms and as such, there has been a continuous breach of section 3(1) since 11 July 2021 and a breach of section 3(1A) since 11 September 2021. 

It is submitted that it is just and equitable that the Complainant be awarded the maximum of 4 week’s remuneration for each breach of section 3 (i.e. a totality of 8 week’s remuneration) in circumstances where no attempts whatsoever were made by the Respondent to provide any such information as is required under section 3(1) or (1A) to the Complainant during the course of his employment

Protected Disclosure

Penalisation of the Complainant by the Respondent for having made a Protected Disclosure under the Protected Disclosures Act 2014, in breach of section 12(1) of the Protected Disclosures Act 2014; 

 It is first submitted that the Complainant’s verbal complaint to Mr McDonagh, General Manager at Timber Frame Projects Limited, amounts to a protected disclosure within the meaning of the Protected Disclosures Act 2014 (as amended) (“the 2014 Act”).

 Section 5(2) of the 2014 Act provides that a protected disclosure is a disclosure of relevant information made by a worker in a specified manner. Information is “relevant information” if:

 “(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.”

“Relevant wrongdoings” are defined in section 5(3) of the 2014 Act as follows:

 “(a) that an offence has been, is being or is likely to be committed,

(b)  that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

I that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

I that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, (g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.”

The Supreme Court in Baranya v. Rosderra Irish Meats Group Ltd. [2021] IESC 77 confirmed the broad interpretation of “relevant wrongdoing” in that an expression of a grievance by an employee that his or her own personal health and safety was endangered was capable of being a protected disclosure. The Supreme Court further held that the relevant wrongdoing does not, in reality, have to amount to a breach of a legal obligation in order for the complaint to fall within the remit of the Protected Disclosures Act 2014. At paragraph 28, Hogan J stated:

 “It is perfectly clear from these words that the complaint does not have to relate to the health or safety of other employees or third parties: a complaint made by an employee that his or her own personal health or safety is endangered by workplace practices is clearly within the remit of the sub-section. Nor does the conduct in question necessarily have to amount to a breach of any legal obligation (although it would generally probably do so): it is sufficient that the employee complains that his or health or safety has been or is being or is likely to be endangered by reason of workplace practices, as this amounts to an allegation of ‘wrongdoing’ on the part of the employer in the extended (and slightly artificial) sense in which that term has been used by s. 5(2) and s. 5(3) of the 2014 Act. It follows that a complaint made by an employee that his or her own personal health was being affected by being required to work in a particular manner or in respect of a particular task can, in principle, amount to a protected disclosure.”

The Complainant raised a verbal complaint to Mr McDonagh, general manager of the Respondent company,  regarding the installation of CCTV in the workplace. The Complainant queried why the cameras had been installed, what their purpose was and why employees has not been informed in advance about their installation. It was the Complainant’s reasonable belief at this time that the Respondent did so without proper notification and consent from employees, endangering or likely to endanger the health and safety of employees in line with section 5(3)(d), and without lawful basis under Article 6 of the GDPR, in line with section 5(3)(b).  That the Complainant took photographs of the cameras installed without signage, and elected not to sign the sheet agreeing that he had been notified of the same further serves to prove this reasonable belief.

 It is thus submitted that the Complainant disclosed information which, in his reasonable belief, tended to show one or more relevant wrongdoings which came to his attention in connection with his employment. As such, it is submitted that the complainant made a protected disclosure within the meaning of the Protected Disclosures Act 2014.

 Section 5(8) of the 2014 Act provides for a presumption that a disclosure is a protected disclosure until the contrary is proved. 

Section 12(1) of the 2014 Act provides that: 

 “An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”

 Penalisation is defined in section 3(a) as meaning “any act or omission that affects a worker to the worker’s detriment, and in particular includes—

 (a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

I transfer of duties, change of location of place of work, reduction in wages or change in working hours,

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

I unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;”

Section 12(7C) of the 2014 Act, inserted by section 21 of the Protected Disclosures (Amendment) Act 2022, provides for a presumption in favour of the employee in any proceedings brought under the Workplace Relations Act 2015 in respect of alleged penalisation. 

 “(7C) In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.”

On the morning of 26 October 2022, WhatsApp messages were exchanged between Mr McDonagh and Ms. Karen Bourke, on the subject of the Complainant’s objections to the installation of CCTV cameras. The WhatsApp messages from Mr McDonagh state as follows:

“…09.57 It’s mainly only Norbert causing all this ruckus to be honest but everyone just feels like they are being monitored and not so much material or equipment. They all said nothing yesterday when they going up only since Norbert started moaning first thing this morning…

10.02 No one complained or moaned or bitched about the cameras once yesterday until Norbert came in this morning complaint and raising issues then they sorted agreed with Norbert and I said if this is the case I’ll raise the concern. I have to raise the concerns unfortunate Karen of the staff that are working under me so I messaged Declan raising the concern. It’s just Norbert, he is a negative virus that stirs shit always…

10.14 The rest will be grand and won’t cause any issues. If Norbert never came in complaining and cause Issues then none of them would have brought any issue up…

10.37 So Norbert has taken pictures of the camera without the signs this morning, then more photos with the signs, then a photo of the sheets to sign of proof of receiving letters which tells me he is onto the citizens advice regarding all this. Everyone signed without issue or even mention and then said now while Norbert isn’t around they are ok with it and underway and the whole situation, so just Norbert as usual.”

 At 11.10, approximately 35 minutes after the above WhatsApp messages were sent and shortly after the Complainant raised a complaint regarding the installation of CCTV, Mr Bourke issued a written contract of employment to the Complainant by email. The email stated:

 “Hi Norbert,

Unfortunately due to reduced demand, we have no choice but to reduce your working hours to allocated driving hours only. 

The primary role of your employment was for driving purposes; deliveries and collections, however in order to keep you in work, we had supplemented this with general duties. Unfortunately in the current climate, this is no longer feasible…”

 It is argued that the Complainant was penalised for having made a Protected Disclosure.

•                   The provision by the Respondent to the Complainant of a proposed contract of employment, resulting in a transfer of duties, reduction in working hours and consequently a reduction in wages; 

•                   The imposition of a financial penalty in the form of a deduction from the Complainant’s weekly pay for what the Respondent alleged to be time spent not working and instead contesting the installation of CCTV cameras.

 In light of section 12(7C) of the 2014 Act, we highlight that it is for the Respondent to show that the above-outlined acts of penalisation were on duly justified grounds and not connected with the protected disclosure. Notwithstanding that it is not for the Complainant to evidence that such penalisation was the result of having made a protected disclosure in light of section 12(7C), it is submitted that the same is evident having regard to, inter alia:

•                   The proximity in time between the Complainant’s protected disclosure and the provision of the proposed employment contract to the complainant by the Respondent, containing reduced working hours; 

•                   The fact that a financial penalty in the form of a deduction from the Complainant’s weekly pay was imposed for the time spent by the complainant contesting the installation of CCTV;

•                   WhatsApp messages between the Mr McDonagh and Ms Bourke of the respondent company evidencing frustration on their part with the Complainant’s response to the installation of CCTV;

•                   The fact that the Respondent raised a number of incidents for which the Complainant had received verbal warnings, in conjunction with providing him with the proposed contract, revised to reduce his hours.

It is submitted that, having regard to the above outlined circumstances surrounding the penalisation of the Complainant, it is evident that a strong causal link exists between the acts of penalisation relied on by the Complainant and his making of a Protected Disclosure under the Protected Disclosures Act 2014.

Schedule 2 of the 2014 Act sets out the redress available in respect of a complaint of a contravention of section 12(1). It provides that an adjudication officer may:

 require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 260 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

Failure to keep statutory records

A failure by the Respondent to keep statutory employment records in breach of  Regulation 12 of S.I. No. 36/2012 – European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012

 It is submitted that, for the duration of the Complainant’s tenure, the Respondent was not keeping statutory employment records as required under S.I. No. 36/2012 – European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (“S.I. No. 36/2012”). 

Regulation 3 outlines the scope of the Regulations, stating they apply to:  

“(a) mobile workers who are employed by or who do work for one or more undertakings established in a Member State, participating in road transport activities to which either the Council Regulation or the AETR applies.”

The Complainant undertook driving duties delivering timber frame homes to customers during his time with Timber Frame Projects Limited; an undertaking established in an EU Member State. The Complainant therefore formed part of the travelling staff who was in the service of an undertaking which operates transport services for goods by road, making him a “mobile worker” within the meaning of Directive 2002/15/EC. It is further submitted that, as the vehicle driven by the Complainant has a maximum permissible mass exceeding 3,5 tonnes, and the Complainant was transporting goods in same, he was participating in transport activities to which Regulation No. 561/2006 applied. 

 In light of the above, it is submitted that the Complainant falls within the scope of S.I. No. 36/2012. As such, the claim relating to the failure of the Respondent to keep statutory employment records in breach of Regulation 12 of S.I. No. 36/2012 is set out below.

 Regulation 12(a) of S.I. No. 36/2012 provides that an employer shall:

 “(a) maintain a record of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability;”

 While the Complainant cannot definitively determine that the Respondent was not keeping appropriate records relating to his driving, other work, breaks daily and weekly rest period and periods of availability, it is submitted that the following constitutes evidence of same:

•                   The Respondent did not issue any payslips to the Complainant throughout his entire tenure. 

•                   When the Respondent eventually issued payslips retrospectively at the Complainant’s request, they did not indicate the hours worked in any given week.

•                   As outlined above, CLM requested as part of the complaint to the Data Protection Commission on behalf of the Complainant that the Respondent furnish information concerning the Complainant’s rotas and distances covered when driving. In the file furnished, the Respondent did not provide any information to this effect, instead stating: “variable distances covered and paid as such”. 

•                   In the employee record furnished by the Respondent in response to the complaint to the Data Protection Commission, the Respondent left the ‘Gross Weekly Hours Worked’ blank. 

 It is submitted that the above evidence supports the notion that the Respondent was not complying with its obligation to keep statutory employment records of the working pattern of the Complainant in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability, in breach of Regulation 12 of S.I. No. 36/2012. 

 It is respectfully submitted that an award of compensation is appropriate in the circumstances. 

The Respondent denies that the Complainant was constructively dismissed and submits that the Complainant voluntarily resigned, having accepted and affirmed the revised contractual arrangements, with significant driving hours available.

As a preliminary matter, the Respondent notes that the Complainant had not completed 12 months’ of continuous service with Timber Frame Projects Limited at the date of his resignation and therefore does not have the requisite service to maintain a claim under the Unfair Dismissals Acts 1977–2015. The Respondent refers, in particular, to the Complainant’s payslips spanning from 17 January 2022 to 28 October 2022 which detail his weekly pay

Background

The Complainant was engaged as a driver with welding experience noted. The Complainant raised concerns regarding his vision rendering any limited welding duties unsuitable, and a qualified welder was engaged by the Respondent.

The Respondent experienced a significant downturn in workload, necessitating downsizing across the business. Due to reduced demand, the Respondent could no longer subsidise workshop duties and explained to the Complainant that driving and yardman hours could be offered going forward, with significant driving work anticipated as work became available.

As is the nature of the business, once a timber frame structure is manufactured off site, the delivery can then be arranged and the driver can be scheduled accordingly to load, perform the route and offload the delivery as agreed

The Complainant gave two weeks’ notice of resignation at 7.38pm on Friday 28th October 2022 which was received by the Respondent on Tuesday 1st November 2022 following the Bank Holiday weekend. Notwithstanding this notice, the Respondent explained that significant driving hours were available under the revised contract and sought to retain the Complainant in employment on that basis.

The Complainant accepted the revised contract on multiple platforms, including email and WhatsApp. In particular, he stated:

  “because I got new contract so I can work part time, but I have to ask social to give me paperwork for marking which day I work! If Alan load up I’ll strapping down myself!….About money payment by hour is ok as normal €16.25 but if any overtime is have pay by overtime rate!”

On 9th November 2022, the Complainant confirmed his agreement to complete a scheduled delivery and stated: “Phone back in action. Monday 8.00 ok for me”, clearly demonstrating his intention to proceed under the new contract from Monday 14th November 2022, following his two week notice period.  In reliance on these confirmations, the Respondent scheduled installers, crane hire and logistics for the delivery.

 On Saturday 12th November 2022, the Complainant unilaterally withdrew from the agreed delivery, removed himself from the delivery group and failed to engage. This withdrawal occurred despite significant driving hours being available and despite the Complainant’s prior confirmations that he would proceed. The Respondent was forced to subcontract the delivery at an additional cost and significant operational disruption occurring over a weekend in advance of the homeowner’s scheduled delivery.

On Monday 14th November 2022, the Complainant carried out the same delivery for a third-party company, reluctantly contracted by the Respondent at a much higher cost, demonstrating that he was available and willing to work and was not forced to leave his employment.

Constructive dismissal is defined under section 1 of the Unfair Dismissals Acts 1977–2015. The burden of proof rests entirely with the Complainant.

The applicable legal tests are those set out in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221:

a.            The fundamental breach of contract test; and

b.            The reasonableness test that they resigned because of that breach, without delay, and did not accept the new terms.

The Respondent submits that this case fails to meet either test due to absence of breach, legitimate commercial justification, and  affirmation of contract and acceptance of the variation by the Complainant prior to the delayed claim of Constructive Dismissal.

The Respondent denies that there was any repudiatory breach of the Complainant’s contract of employment. The adjustment to the Complainant’s duties and hours arose from genuine financial constraints and reduced demand. The Respondent continued to provide work as available and did not issue any ultimatum or seek to terminate the Complainant’s employment at any time. In the months to follow, the Respondent significantly downsized its premises, staff and production capacity due to reduced demand.

The WRC has consistently recognised that necessary and unfortunate changes arising from legitimate commercial necessity do not, of themselves, amount to a repudiatory breach of contract.

The Complainant accepted and agreed to carry out work under the revisions after giving notice of his resignation, stating “Monday 8.00 ok for me” referring to Monday 14th November 2022, outside of his two week notice period, thus commencing the agreed, revised contractual obligations. Various Whatsapp messages reaffirmed the Complainant’s acceptance and intent to proceed.

By confirming his availability to complete the scheduled delivery, the Complainant affirmed the contract and waived any entitlement to treat the alleged changes as a repudiatory breach. It is well established in Irish employment law that an employee who continues working or accepts work under revised terms cannot subsequently rely on those same terms to ground a claim of constructive dismissal

CCTV, GDPR and Protected Disclosure Allegations

The Respondent expressly rejects the assertion that the introduction of CCTV constituted a breach of GDPR or a protected disclosure within the meaning of the Protected Disclosures Act 2014.

CCTV was installed for legitimate and lawful purposes, namely in response to incidents of tool theft and due to the high value of property stored on site. Appropriate signage was erected and staff were notified in advance, in compliance with GDPR requirements and staff were prompted to contact the Respondent should they have any queries in relation to same.

The Complainant was notified of the CCTV installation prior to it going live and raised no objection. On the contrary, the Complainant expressly confirmed in writing: “CCTV no problem for me working or not because I get notified about cameras”

The Complainant took photographs prior to the CCTV system becoming operational further demonstrating his awareness of its’ planned installation.

At no time was the revision of the Complainant’s contract or the reduction of duties linked to CCTV or any alleged disclosure. The revised contract was necessitated solely by reduced demand and the Respondent’s inability to continue subsidising non-driving hours, and the Respondent clearly sought to retain the Complainant in as much work as possible as evidenced under the revised contract.

Accordingly, the installation of CCTV does not constitute a ‘wrongdoing’ capable of founding a protected disclosure, nor was it causally connected to any change in the Complainant’s employment.

The Respondent disputes the assertion that the Complainant “made every effort to continue his employment and his efforts have been frustrated”. Significant driving hours were available under the revised contract, as repeatedly explained to the Complainant, and no full-time replacement driver was hired. A Whatsapp message in response to the Complainant’s two week notice period, following acceptance of the revised terms and agreed delivery date,  stated;

 “Hi Norbert, it is unfortunate that you have chosen to leave after submitting your 2 weeks notice, although you had accepted the new contract as shown above. There were quite a lot of driving hours available for you this week with as much notice as possible as mentioned would be the case. All the very best going forward.”

When the Complainant later enquired about a role advertised on 1st December 2022, it was again explained that the role available was for driving/yardman work only, consistent with the revised contract already accepted, and that due to inadequate qualifications and poor vision, the position of a welder was not suitable. The Complainant did not respond further.

“Hi Nobert, without qualified carpentry or welding experience, the position would be for driving/yardman work and not in the workshop. We have plenty of deliveries coming up from January onwards. Some weeks would be busier than others but the pay would even out for you week to week. We could offer you this but there wouldn’t be any workshop work”

The Complainant’s conduct in refusing available driving work, while performing the same work for another company, directly contradicts his assertion that he was left with no option but to leave.

Preliminary Issue

The Respondent argues that the Complainant had not completed 12 months of continuous service with Timber Frame Projects Limited at the date of his resignation and therefore does not have the requisite service to maintain a claim under the Unfair Dismissals Acts 1977–2015. The Respondent refers, in particular, to the Complainant’s payslips spanning from 17 January 2022 to 28 October 2022 which detail his weekly pay.

Mr Bourke, a Director of the Respondent company gave evidence that the Complainant was engaged by Mr Bourke as a sole trader prior to his employment with the Respondent. He stated that this contract predated the commencement of employment with Timber Frame Projects Limited and did not reference the limited company, which did not become the employer until January 2022 as evidenced by payslips. Mr Bourke stated that the name Timber Frame Ireland had been used by him  as a brand only for marketing and operational purposes. It was not a registered trading name. The employer during this period was Mr Bourke as a sole trader, and there was no transfer of undertaking to the limited company when payroll later moved in January 2022.

I note that Mr Bourke is a Director of the new company, that it is in the same business as he conducted as a Sole Trader and work is in the same location.  I also note that the complainant carried out the same work and at the same rate of pay.  I am of the view that the transfer should have been subject to the Transfer of Undertakings Regulations and that therefore the complainant’s period of service is in excess of the 12 months minimum stipulated in the Unfair Dismissals Act.

Substantive Issues.

CA-00056491-001  Unfair Dismissal

The complainant is alleging that he had no alternative but to resign following her treatment by the respondent.  The respondent denies that it dismissed the complainant.

Section 2(1) of the Unfair Dismissals Act defines a dismissal as including:

“The termination of a contract of employment by the employee (whether prior notice of 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 to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so …”.

It is clear from the complaint that the complainant regarded himself as having been constructively dismissed.  Where constructive dismissal is alleged the burden is on the complainant to show that she or he was justified in deciding that the actions of the respondent constituted a dismissal.

There are two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The contract test was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 as follows:

“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 discharged from any further performance”.

This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract.

Mr Bourke issued a written contract of employment to the Complainant on 26 October 2022, shortly after the Complainant raised issues regarding the installation of CCTV in the workplace. This contract reduced the Complainant’s hours from full-time to allocated hours only, consequently reducing his pay. The respondent has argued that this reduction in hours arose through circumstances beyond its control. I note that no other member of staff had his/her hours reduced in a similar way at that time.  No discussion took place with the complainant in advance of this decision.  Such a unilateral reduction in pay goes to the root of the contract and I am satisfied that the complainant was entitled to take the view that he was constructively dismissed. No grievance procedure was offered to the complainant to use.  Any subsequent discussions were attempts by the complainant to salvage what he could, rather than an acceptance of a new contract with a reduction in pay.

In relation to redress in the form of compensation the Unfair Dismissals Act in Section 7 states;

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

I (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances

In his evidence the complainant confirmed that he entered alternative employment and suffered minimal financial loss.  His entitlement to compensation is therefore capped at 4 weeks’ pay.  His gross pay was €764 per week and therefore his compensation under this claim is €3,056.

CA-00056491-003, CA-00056491-004  Terms of Employment

There was conflicting evidence given by both parties at the hearing, with the complainant stating that he had not received a copy of his terms of employment as required by the Act.  Subsequent to the hearing the respondent forwarded a copy of what purported to be the original terms of employment given to the complainant when an employee of Mr Bourke as a sole trader.  While this document was signed by Mr Bourke it was not signed by the complainant.  Having heard the evidence, on the balance of probability, I accept that Mr Bourke met his obligations under the Act at that time and, as the subsequent change in title of the employer should have been subject to the Transfer of Undertakings Regulations this contract was still in place.  I find therefore that the Act was not contravened.

CA-00056491-007 Organisation of Working Time of Persons Performing Mobile Road Transport Activities

The evidence presented by submission on behalf of the complainant on this issue related to the absence of hours specified in payslips and the failure of the respondent to provide details of distances covered while driving. No evidence was presented by the respondent at the hearing to refute this allegation.  Section 18. (1) of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 – S.I. No. 36/2012 provides that where a complaint is well founded I may

require the employer to pay the mobile worker compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 104 weeks’ remuneration in respect of the mobile worker’s employment (calculated in accordance with requirements under section 17 of the Unfair Dismissals Act 1977 );

Accordingly, as the complaint is well-founded, I have determined that compensation of €1,000 must be paid.

CA-00056491-006 Protected Disclosure

The Complainant raised a verbal complaint to Mr McDonagh, General Manager of the Respondent company,  regarding the installation of CCTV in the workplace. The complainant gave evidence that it was his belief at this time that the Respondent did so without proper notification and consent from employees. The Complainant argues that he disclosed information which, in his reasonable belief, tended to show one or more relevant wrongdoings which came to his attention in connection with his employment and, as such, that the complainant made a protected disclosure within the meaning of the Protected Disclosures Act 2014. Section 5(8) of the 2014 Act provides for a presumption that a disclosure is a protected disclosure until the contrary is proved.  I accept that this was a protected disclosure under the Act.

 Section 12(1) of the 2014 Act provides that: 

 “An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”

 Penalisation includes—

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

 Section 12(7C) of the 2014 Act, inserted by section 21 of the Protected Disclosures (Amendment) Act 2022, provides for a presumption in favour of the employee in any proceedings brought under the Workplace Relations Act 2015 in respect of alleged penalisation.

The complainant suffered a reduction in his hours which, if related to a protected disclosure, would constitute a financial penalty under the Act. 

The respondent has argued that the text messages from the General Manager in which he complained to Ms Karen Bourke about the complainant’s behaviour in relation to the CCTV were unrelated to the decision to reduce the complainant’s hours.  However, the communication to the complainant regarding the new contract and the reduction in his hours took place a matter of minutes after the above referenced text messages were sent.  The respondent had not signalled previously to the complainant that there was a proposed reduction in his hours.  I therefore conclude that the respondent has failed to discharge the burden of proof that he did not penalise the complainant and that the complainant was penalised for making a protected disclosure and the complaint is well founded.  I believe the appropriate remedy is compensation which I determine to be €40,000 (approximately equivalent to 52 weeks pay)

CA-00056491-001.   The complainant was unfairly dismissed and I order the respondent to pay the complainant compensation in the sum of €3,065 subject to statutory deductions

 CA-00056491-003, CA-00056491-004.  The Act was not contravened.

CA-00056491-007. The complaint is well-founded and I order the respondent to pay the complainant compensation in the sum of €1,000.

CA-00056491-006. The complaint is well-founded and I order the respondent to pay the complainant compensation in the sum of €40,000.

Complaints CA-00056492-001, CA-00056492-002, CA-00056492-003, CA-00056492-004, CA-00056492-006, CA-00056492-007 are duplicated complaints and are comprehended in my decision.

Constructive dismissal, penalisation for a protected disclosure, failure to keep statutory records