Complainant

Respondent

Parties

Robert  Donovan

Indeff Ltd.

Representatives

Lorna Madden BL instructed by O'Donoghue & Associates Solicitors

 No appearance

Act

Complaint

Reference No.

Date of Receipt

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

CA-00063557-001

20/05/2024

The Complainant submits that he was unfairly dismissed by way of constructive dismissal by the Respondent company, Indeff Limited, on 11th January 2024, due to repeated late payments of the Complainant’s wages over a significant period of time. The Complainant’s submission is that the Respondent breached the essential terms of his contract, that the Complainant ultimately resigned and the Respondent did not prevent this or remedy the situation, despite having ample opportunity to do so.

No appearance was entered by or on behalf of the Respondent.

The Respondent company made an incomplete postponement application on 09/02/2026, providing no supporting documentation, despite it being requested. The application was declined by the WRC, on that basis, consistent with the WRC’s Guidelines on Postponements.

I am satisfied that the Respondent company was on notice of the hearing.

This case was reserved on 20/02/2026.

There was post-hearing correspondence on 22/02/2026, from the Respondent, which does not form part of this case.

As per the Complainant’s written submissions

The Complainant’s case is that he was unfairly dismissed by way of constructive dismissal by the Respondent company, Indeff Limited, on 11th January 2024, due to repeated late payments of the Complainant’s wages over a significant period of time. The Complainant’s submission is that the Respondent breached the essential terms of his contract. The Complainant ultimately resigned and the Respondent did not prevent this or remedy the situation, despite having ample opportunity to do so. It is submitted that the Complainant was unfairly dismissed.

It is submitted that the Complainant commenced employment on 20th February 2017 in the role of Senior Project Manager. The Complainant initially worked for ONG Automation Limited before the company was transferred to Indeff Limited by way of a TUPE process in 2019.

Clause 7 of the Complainant’s contract of employment provides:

Pay

Your basic gross salary is €67,500.00 per annum payable by equal monthly instalments by credit transfer into your nominated bank account, after the deduction of PAYE and PRSI payments and all other lawful or authorised deductions. From time to time the employer may have to revise the method of payment and reserves the right to do so with reasonable notice.

Your salary will be pro-rated for any incomplete year of service.

Your salary will be reviewed annually. Any increase in your salary is entirely at the discretion of the employer and the employer is not obliged to increase your salary at review.

Your salary will be paid on the 20 of each calendar month, for that full month, up to and including the last day of the month.

In the event that any monies or overpayments, whether in respect of annual leave or otherwise, become due to the employer from you, you agree to repay the employer on request or consent to the employer deducting the amounts from your pay. (Copy of Contract of Employment submitted).

The Complainant’s wages were continuously paid late by the Respondent in 2023.

On 2nd October 2023, the Complainant sent an email to [SS, KV, and MT]. This email stated that the Complainant’s salary for September had not been paid. The email continued that he had only been paid on time once in the past seven months and he deemed this to be unacceptable (Email of 2nd October 2023 submitted).

On the afternoon of 3rd October, at 1:34pm, the Complainant was contacted by message by BR, the Competence Director. The Complainant had not copied BR in the email and he did not report to him. In his message BR asked to have a one-to-one facetime call with the complaint at a convenient time, when they were both alone. (Copy of message from BR submitted). On this call, the Complainant was told that his email was considered unacceptable, and he would be required to attend a meeting with KV and MT on 11th October.

At the meeting on 11th October, the Complainant was informed he was being put on a Performance Improvement Plan.  It is the Complainant’s case that this was a result of raising an issue with the late payment of his wages. It is also the Complainant’s case that the purpose of the PIP was to ultimately remove him from the company. On being informed that he was to be commenced on a PIP, the Complainant informed KV and MT of his intention to resign.

Later that morning, the Complainant sent an email to KV and MT attaching a letter with his formal intention to resign. The Complainant had a notice period of three months and the agreed end date of his employment was 11th January 2024. (Copy of Email and Letter of Resignation of 11th October 2023 submitted.)

Receipt of the Complainant’s resignation letter was confirmed on 19th October by Ms Van Leemput. It was agreed that the Complainant could offset annual leave against his notice period and that his last working day would be 17th November 2023. The Complainant was sent a termination agreement. The Complainant never signed the termination agreement. It is submitted that this was because during his notice period the Respondent continued to pay the Complainant late and in one instance an incorrect amount. It is submitted that the Complainant had also raised an issue with a restrictive covenant in the termination agreement, which was never resolved.

Despite the Complainant’s employment not ending until 11th January 2024, it is submitted that the Respondent took no steps to resolve the issue of the late payment of his salary, or ask that the Complainant to reconsider his resignation during his notice period. During his notice period, the Complainant’s salary continued to be paid late.

On 10th November, the Complainant emailed KV and MT again raising the issue of late payment of wages. In the email he states that he had not been paid for October, and sets out the sequence of events leading to his resignation. (Copy of Email of 10th November 2023 submitted.)

On 27th November, the Complainant’s Solicitor sent a letter to the Respondent outlining the continuous late payment of wages which constituted a breach of the employment contract and the Payment of Wages Act. (Copy of Letter of 27th November 2023 from O’Donoghue & Associates Solicitors submitted).

On 29th November, the Complainant received a payment from the Respondent of €2,963.52. This was neither on time nor the complete payment due to the Complainant, which should have been at least €3,994 in accordance with his contract of employment (the Complainant received a basic annual salary plus expenses which would vary). It should also be noted that the Complainant did not receive payslips and could not reconcile his payments with his payslips at the time. The Complainant did eventually receive payslips for 2023 through a different process. (Payslips for 2023, submitted at Appendix 7)

In response to the letter of 27th November, KV replied by email confirming that the Complainant’s total salary, including payments due up to the 10th January 2024, would be paid at the end of December. (Copy of Email from KV dated 11th December 2023 submitted).

On 15th December 2023, the Complainant’s Solicitor sent a further letter to the Respondent indicating that the Complainant had only received a partial payment of his salary for November and that the Respondent was breaching the Complainant’s contract. The letter also details that there was no engagement in relation to the issues raised on behalf of the Complainant concerning the termination agreement. (Copy of Letter of 15th December 2023 from O’Donoghue & Associates Solicitors submitted).

In response, KV replied by email on 20th December 2023. In relation to the incorrect payment for November she stated that this was because there was a mistake by the payroll company because they had read the file wrong and it would be amended. She stated, “I can assure that Ron Donovan will be paid on the 28/12/2023.” (Copy of Email from KV dated 20th December 2023 submitted).

It is submitted that the Complainant was not paid on 28th December 2023. It is submitted that on 4th January, the Complainant was paid the sum of €7,190.17. It is submitted that the Complainant was not provided with a payslip so that he could confirm that this was the correct amount outstanding to him. It is submitted that 28th December 2023 was a Thursday meaning that, accounting for the bank holiday, the Complainant was paid late by five (5) full working days. Additionally, the Complainant’s contract of employment states that he is to be paid on the 20th of the month, not the 28th. 

It is submitted that subsequent to resigning from his employment, the Complainant encountered an issue when applying for Jobseeker’s benefit. He was informed that his last employment was recorded as ending on 11th January 2023 (not 2024), and he was unable to receive welfare payments, despite PRSI contributions being taken from the Complainant’s salary. Due to the Respondent declaring an incorrect date on their paperwork the Complainant was unable to claim Welfare from January through to June 2024. This caused the Complainant and his family considerable financial distress. When this matter was eventually resolved by the Complainant, (not by the Respondent) he was informed that his Welfare payments could not be backdated. This issue will be raised in relation to any financial award that might be made.

Unfair Dismissal:

The Complainant’s position is that the continuous late payment of his wages constituted a significant breach of his employment contract, particularly clause 7 thereof. On foot of this ongoing significant breach the Complainant was entitled to terminate his contract of employment and claim constructive dismissal. It is submitted that the Complainant acted reasonably and gave the Respondent every opportunity to engage with the issue and they did not do so.

Section 1 of the Unfair Dismissals Act 1977 states that dismissal in relation to an employee includes:

(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 …

An employee may consider themselves dismissed due to a breach of contract by the employer, or due to the unreasonable conduct of their employer. The contract test was summarised by  Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] ICR 121:

“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.”

It is submitted that provisions governing an employee's remuneration are fundamental terms of any employment contract.

In the English case of RF Hill v Mooney [1981] IRLR 258 the employer sought to introduce a new remuneration scheme. Under the employee’s terms and conditions of employment, the basis of his remuneration was his salary plus a 1% commission on sales. The employer sought to introduce a new remuneration scheme under which the 1% commission ceased and was substituted with a commission payable on sales over a target figure. The employee was dissatisfied with the new scheme, but the employer insisted on introducing it. The employee resigned and successfully claimed constructive and unfair dismissal. An industrial tribunal found that the employer committed a fundamental breach constituting a repudiation of the employment contract. The employer appealed. The Employment Appeal Tribunal, dismissing the appeal, held that the obligation on an employer to pay remuneration was one of the fundamental terms of a contract. It was observed, “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 submitted that the recent WRC case of Gheorghe Toader V The Historic Flooring Company Ltd. ADJ-00050566 (1st January 2025) is of relevance. The fact situation is very similar to the Complainant’s case. In Gheorghe Toader the Complainant claimed constructive unfair dismissal as the Respondent had continuously delayed payment of his wages throughout his eight-year period of employment.  In her decision, the Adjudication Officer found: “The timely payment of wages for work undertaken is a fundamental term of any employment contract. By Mr. Sumray’s [the employer’s] own admission, payment of the Complainant’s wages was delayed twenty percent of the time during the eight-year period of his employment.  It was not confined to the difficult financial period experienced by the Respondent in late 2022 to early 2023. The Complainant had bills to pay and a family to support and the ongoing situation had clearly caused him financial difficulty, anxiety and distress. He was of the view that this situation would not improve. The Respondent had not provided the Complainant with a written contract or grievance procedures by which he could complain about the ongoing situation. When he did raise the matter in writing on 30th January 2023, there was no written response on behalf of the Respondent.  Nor did Mr. Sumray seek to avail of professional HR advice or make any arrangements for a formal meeting to resolve matters as referenced in his letter of 3rd May 2023. Given that there was no payment in lieu of public holiday or annual leave entitlement even after a WRC inspection, I have no doubt that this pattern of conduct toward the Complainant would have continued. Overall, I found the lax attitude and complacency exhibited towards the Complainant’s plight and the Respondent’s legal obligations to be troubling and would hope that valuable lessons will be taken from this process.

Applying the contract test to the factual matrix, I am satisfied that the prolonged and repeated nature of the delay in payment of the Complainant’s wages alone constitutes a significant breach going to the root of the contract of employment and shows that the Respondent no longer intended to be bound by one or more of the essential terms of the contract.  Accordingly, in all the circumstances, I find that the Complainant was entitled to consider himself constructively dismissed. Having so found, it is unnecessary to apply the reasonableness test.’

It is submitted that the Complainant’s case differs only in that he stated his intentions to resign from his employment and the end date of same. Throughout his long notice period, the Complainant repeatedly engaged with the Respondent about the issue of paying his wages, but the Respondent did not engage, seek to resolve the matter, or ask the Complainant to reconsider his resignation.

The WRC case of Project Worker v Community Based Worker ADJ-00024862 (16th March 2020) is also of relevance. In this case the employee resigned due to the late payment of her wages from June 2018 until her resignation in April 2019. The Adjudication Officer found that there were repeated breaches of the agreement by the employer and that the employee had made every effort to resolve the issue and found that the employee was constructively dismissed. 

In relation to the Complainant’s conduct, the Complainant acted reasonably in resigning from his employment. He raised the issue and the Respondent had ample time to address the matter and did not do so. In fact, during the Complainant’s notice period, the Respondent instead continuously failed to pay the Complainant on time. The Respondent also reacted to the Complainant raising an issue in relation to his wages in an unreasonable manner by commencing the Complainant on a PIP.

The ongoing failure to pay the Complainant on time was a significant breach going to the root of the Complainant’s contract of employment and constituted a repudiation of the Complainant’s contract of employment.

Mitigation and Redress:

It is submitted that the Complainant encountered difficulties in finding new employment. He felt that an issue arose as he was not able to give a full answer as to why he had left his previous employment.

The Complainant took up employment with a British company from January 6th, 2025, through to March 6th, 2025. He was paid salary and expenses which, when combined, were lower than the Complainant’s earnings in the Respondent company. (Evidence of Payment - James Walker Ireland Ltd. - March 2025, submitted).

The Complainant commenced his current job on 14th April 2025. (Payslips for April – December 2025 submitted).

Throughout 2024, the Complainant was actively seeking employment. He attended approximately 80 different job interviews both virtually and in person during that time (list of job applications and dates submitted at Appendix 13).

The Complainant was not self-employed during the year of 2024, nor did he receive payments from any other source.

It is submitted that due directly to the actions of the Respondent, the Complainant was unable to receive welfare payments from the State until the end of June 2024. He was not able to be back paid for these payments. He eventually received weekly welfare payments of €232.00. There was a 24 week period in which the Complainant did not receive any welfare payments. The total amount not received during this time is €5,568.00. (Copy of Email from official in the Department of Social Protection dated June 12th 2024 submitted).

Section 7 of the Unfair Dismissal Act 1977 as amended provides:

7. Redress for unfair dismissal

(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 adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

(a)    re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b)    re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c)     (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, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a)    the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b)    the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c)     the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d)    the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Actor with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e)    the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f)      the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

It is submitted that the Complainant was unfairly dismissed by way of constructive dismissal, due to the Respondent breaching the fundamental terms of his employment contract, and he has suffered a financial loss as a result of the Respondent’s conduct. In all the circumstances, the Complainant is seeking an award for his total financial loss up until commencing his current employment, including the loss of the social welfare payments in 2024.

At hearing:-

Counsel for the Complainant submitted that this was a constructive dismissal case, that the Complainant was continually paid late, that he should have been paid on the 20th of the month but was only paid on time once, and that payslips also were not always received, and that there was a lack of clarity as to what was being paid. In one instance, payment was so late, he received two months’ wages in one go.

The Complainant started working in 2017. There was a clause in his contract specifically about pay (Clause 7). However, he was continuously paid late.

It is submitted that on 2nd October 2023, he made contact with his employer setting out that he had not been paid for September, that it was now 2nd October; and that he did not find this consistent late payment of his wages acceptable, and requesting that the matter be remedied. It was submitted that he did not receive a response to that email.

The following day, however, he was contacted over Teams by BR who informed him that he was going to be summoned to a meeting by MT (the Head for Ireland) and KV (the Head of HR). He was duly summoned to a meeting, and at that meeting he was put on a PIP (performance improvement plan). It is submitted that there was no basis for that PIP. In that meeting, the Complainant said: ‘I will be resigning.’ It is submitted that the indication from the employer was – ‘well, that resolves matters.’ Later that day, the Complainant formally resigned. He had a three (3) month notice period.

It is submitted that 11th January 2024 was his last day formally, that receipt of his resignation was confirmed on 19th October, that it was agreed he would technically work out his notice; and with annual leave and other leave November 17th was his last day on site. There was no resolution of the issue about the late wages. During that three-month notice period, there were correspondences between the parties. On 10th November, the Complainant emailed the two people who attended at the meeting. It was submitted that there were other issues, and that while there was a draft termination agreement, the terms were never agreed, and the Complainant never actually signed. It was further submitted, that during his notice period, the Complainant was still not being paid his wages correct. It was submitted that the continuous late payment of the wages was a breach of his employment contract. It was submitted that on 29th November, the Complainant received €2,963.52 – that was supposed to be his paycheque but was considerably lower than what his paycheque is; and he was given any payslips at that time. So, there were difficulties in discerning what the payments were/purported to pertain to.

It is submitted that KV, the Respondent’s Head of HR said that everything would be paid on January 10th including everything due for January, i.e. that the Complainant would not be waiting until the end of January.

Mr. Donovan took the oath and gave evidence on his own behalf.

He outlined that he started working for the Respondent company in 2017. He was initially a sales manager (OMG Automation), then there was a transfer of undertakings [TUPE] in 2019 and the Belgian company Indeff took over. He said that his basic gross salary was set out at Clause 7, in his contract of employment, and that it was €67,500 per annum. He said that it was increased by stipends. He was due to get paid on the 20th of the month, and that was paid on time when it was OMG Automation, but that when it was Indeff, more often than not, his pay was late. He said, typically, he would receive his payslip when it was due but that he did not get paid when his pay was due.  Payments were always late. He outlined one occasion, where he got paid twice in the one month, because the previous month’s pay was so late. He described the financial impact in light of having outgoings, mortgages, car loans, groceries, children in school etc. He said that he was overdrawn very, very regularly, as a consequence.

On 2nd October, the Complainant wrote an email to the company setting out the problem on his behalf and on behalf of his team. He explained that he had a team of people working for him, and they regularly had people coming to him saying ‘I’m not getting paid.’ He said that he had colleagues from overseas who needed to get paid. In his email he sent to his employer, he outlined that he had not yet been paid for September and enquired as to when he would get paid. He set out that his salary had not been paid on time on multiple occasions, that he considered that to be unsatisfactory, and that his silence to that point should not be mis-interpreted as acceptance of the Indeff practice of being paid late on a regular basis. That email went to KV, MT and SS. He further said: ‘I do not want to receive an email informing me that my salary has been processed’ as this is a meaningless thing at this point.’

He said that he was then contacted on Teams by BR, who he did not report to directly, he was a director in the HQ in Antwerp. He described it as an ‘unusual, out of the blue contact.’

‘Hi Ron

Looking to have a 1-1 facetime call with you.

When would be convenient.

It would need to be a time when both you and I are alone.’

(A photo of the screenshot was submitted.)

He said there was one way communication on the call, and that he was told ‘you will be summoned to a call with the marketing director and the HR director.’ He said it was a very short call that offered no context. He said the two people named are two senior directors in the company.

He said he was summoned to a meeting, that it was a Teams meeting with no agenda. He outlined that on the call were: 1. The HR Director based in Belgium, 2. The MD for Ireland and the UK and 3. The Complainant. He said he was told: ‘We are going to be putting you on a performance improvement plan (PIP)’ but that they did not tell him why.’ He said he asked: ‘What’s this all about?’ ‘Where did this come from?’ He said he was not given any reason or told anything where his performance was lacking. He said that his reaction was one of ‘shock’ and ‘horror.’ ‘Internally, horror because I knew what this meant. This was a mechanism for getting rid of someone.’ He said that he knew from previous experience of the company that ‘if you’re put on a PIP, you’re going to be dismissed.’ He said: ‘I knew what this meant for me.’

He was asked about his performance. He said that he was highly successful, that he was ‘blowing the doors of the hinges.’ He said that ‘they took all my key accounts for me when Indeff took over ONG and got me to create another business’ and he said ‘we were getting good clients we wanted.’ He said that the issue that he had was ‘the projects we were getting were knowingly under resourced, so, it was very stressful.’ ‘We were getting this new business and we weren’t looking after people. People were complaining to me and to [MT]. [MT] never took any remedial action – he knew what the problem was.’ He said: ‘similar projects/complexity in other parts of the company had 3x or 4x the resources we had.’ He said that there were ‘no complaints about me.’

He said that he ‘resigned on the spot at the meeting.’ He said: ‘part of [him] thought they would say ‘you’ve read this wrong, this is not what we wanted’, but they didn’t, they said: ‘Okay.’’ He said he was asked ‘can you confirm that in email’, which he did. He sent the email, which was submitted on October 11th, 2023, at 9.52 am. He said there was no response to that email. On November 10th, 2023, c. 3.50pm, he received an email entitled: ‘Resignation from Indeff’. The attachment was a termination agreement. He explained that one of the attachments pertained to when he travelled to do a course in MIT in Boston, in May 2023. It cost €4,500 (for a week) plus flights and accommodation (€2,500). He gave evidence that the company said it would pay for the accommodation if he paid for the course.

He said that the cost in total was about €10,000 (including taxis etc.) and that the Complainant paid about €8,000. The company was not seeking the €2,000 back.

He said that SS was dealing with wages/salaries in UK & Ireland. He correspondence to the company set out: ‘As I type, my salary for October has yet to be paid and that needs to be remediated immediately.’ Then, he quoted the Contract of Employment.

He said, in respect of expenses payable that he contributed about €7,000 of his own money to that course. ‘By my last day in January – by January 11th, 2024, I was paid all that I was owed.’ He said he ‘didn’t get paid in September, didn’t get paid in October, got a stipend in November.’

He said: ‘Your payslips would turn up when they were supposed to turn up but the money wouldn’t come into your account.’

He was asked if he got the payslips for September, October, November? He said: ‘I don’t remember getting them. No.’

What he got in January was the reconciliation of what he was due. He said that in September, he was paid late, in October, he was paid nothing, in November, he was paid a stipend, in December he was paid nothing, and that he received a payment, a ‘big lump’ in January.

He outlined the background to the car situation, as follows: He said there were promises made to him by the CEO  in respect of him receiving a luxury vehicle, first an Audi A6, then a 3 series BMW. In the previous company, ONG, he said there were a different set of circumstances. He said in Indeff, there was a policy in terms of having a company car, but that he was given permission to buy his own car and the company would make a contribution. He said that, at the start, he was paying for it, then putting it in as an expense. Then, in 2023, he bought his own car and the company gave him a monthly stipend of €745. He said that he took out a car loan to buy the car, and after putting down a deposit of €20,000 of his own money, the repayment on the loan was €790 per month. There was no discussion of what would happen if he left employment.

He also outlined that subsequently, when he went to get his own car and his own insurance, because he was on a rental car agreement with Indeff for two years, he had lost his no claims bonus, which he estimated cost him approximately €1,500 an additional per year in insurance premiums. He said that he was treated as a brand new driver at c. 60 years of age, despite never having had an accident, he was now effectively being insured as a first time driver.

In terms of mitigation, the Complainant outlined that he had attended approximately eighty (80) interviews – some were multiple interviews for the same role. He outlined that he had applied for a variety of types of role including general management, and senior sales management roles equivalent to the type of role he had previously held. He said that he had applied for approximately a hundred jobs, that he received no call back from 20/30 percent of them, and the rest, he received some engagement.

He explained that he felt unable to properly explain to any prospective new employer why he had left Indeff so abruptly. He felt that harmed his prospects of getting a new role. He felt he did not have an answer as to how his last role had come to an end, that he did not tell people that he was constructively dismissed. He was asked why could he not have told them that his wages were not being paid on time. He said there was ‘no finding against them’ and that he was ‘afraid to’, that he felt he could not tell people what was actually going on, and that he felt speaking badly of a previous employer in a job interview would look bad for him, and harm his prospects of getting the job.

He said he gave answers like ‘I’m looking for bigger challenges’ and that he felt that ‘must have come across as wishy-washy’, that he felt he ‘didn’t have a credible answer.’

He outlined that he took a job in January 2025 for a couple of months as a Sales Manager for [a named company], on ‘30% of the wages’ as ‘it was going on too long’ and he ‘still had bills to pay.’ He said he ‘wanted to be in employment and needed to be in employment as well.’ He said, he then got a job in  April 2025 with the company that he works with now and that the salary in his current role is comparable, that it is a permanent job and that he has come through the probation period.

He further outlined that in January 2024, he made an approach to the Department of Social Protection (DSP). He said that he was told that on [on the equivalent of a P45], he was told the company had listed his last date of employment with Indeff as January 2023. He confirmed that was incorrect and was told he would need to remedy that. He produced payslips.  He said that it took approximately six (6) months to sort out. He said he was told that it would be good if your previous employment could remediate the situation. He said: ‘They never did.’

He said in June/July 2024, he received his first payment of Jobseeker’s benefit. He was informed that DSP could not backpay him for the full period to which he was entitled, because of his employer’s actions.

The Complainant emphasised that if there had been an interaction from the Respondent and if they had remedied the issues he had outlined, things may have been different but his said ‘trust was broken’. He said that he had been ‘happy to represent them, happy to go to work every day’ but there had been ‘layers and layers of deliberately going out of their way to make me unhappy.’ He also said he was due to take a holiday in June 2023, and the CEO said he could not take your holidays. He said: ‘They refused me. My family got on a flight without me.’

He confirmed, in response to a query from the Adjudication Officer that any outstanding annual leave had been reconciled at the end of his employment.

He said that on 10th December, the Solicitor for the Complainant wrote to the Respondent company.

On 20th December, a response was received indicating that a mistake had been made by the payroll company and assuring him that he would be paid on 28th December 2023. (His pay was due on December 20th ). In fact, his last payment was not on December 20th (as due), not on December 28th (as promised) but actually no 4th January (Thursday).

He said there was also an issue with the company’s records and they recorded his employment as ended (with the relevant State authorities) as 11th January 2023, not 11th January 2024. This caused a problem with the Department of Social Protection (DSP) and the Complainant did not qualify for jobseekers. The issue was not resolved until June 2024.

He said that he had got the paycheques, there was an investigation by the WRC, and that proved that he was in employment. DSP said to him: ‘your last employment we have on record is 2023.’ When he did qualify, he still did not get back paid for that period.

Mitigation

He outlined his mitigation in respect of new employment. He said that his nett payments in Indeff were €4,920 per month, at the point where he resigned. He had a comparable salary by April 2025. He said that he was a full year where he did not have employment. For that full year salary €59,040 is the loss of earnings as a nett figure. During January to March 2025, his nett payments were €2,000 per month. During those three months, he said he was €8,700 down - €2,950 per month down.

A table of the jobs that the Complainant applied to for the year for 2024 was submitted. He attended 80 interviews.

The Complainant is seeking the loss of the job seekers’ allowance as a financial loss = €232 x 24 weeks = €5,616.

The Complainant bought a car during the course of his employment. He made a down payment of €20,000 from his own funds, and it cost €730 per month. €30,000 was supposed to be paid by the company, by way of expenses. The Complainant is paid expenses, and that is in his contract. They vary because of different expenses that would have been incurred. He bought the car in the summer of 2023. The Complainant continued with it and paid it himself, subsequent to the end of his employment.

Closing submission by Counsel for the Complainant, Ms. Lorna Madden BL

Counsel for the Complainant submitted that the Complainant was unfairly dismissed, that he was constructively dismissed, that his employer not paying wages is a fundamental breach of his employment contract, that the company was acting so unreasonably. She submitted that he technically worked out his notice, that no steps were taken by the Respondent to work out the issues identified, that the Complainant’s resignation was never addressed, that no alternatives were put to him. She submitted that he is entitled to say he is constructively dismissed, that he has behaved reasonably.

She further highlighted certain legal precedents in her written submission, in particular RF Hill v Mooney [1981] IRLR 258, Gheorghe Toader V The Historic Flooring Company Ltd., ADJ-00050566 and Project Worker v Community Based Worker, ADJ-00024862.

No appearance was entered by or on behalf of the Respondent.

The Respondent sought a postponement, four (4) days prior to the hearing, an application which was declined.

In line with Process 2 of the WRC’s Policy on Postponements, applications for postponements are only granted if they meet the threshold of ‘substantial reasons and exceptional circumstances.’

I am satisfied that the Respondent was properly served, and was on notice of the hearing.

At the hearing, the Adjudication Officer allowed a fifteen (15) minute grace period, and then commenced the hearing.

Constructive dismissal – burden of proof

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘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.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.

Berber v Dunnes Stores

In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) held: ‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. 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 such that the employee cannot be expected to put up with it.’

In Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in the light of the employee’s precarious physical and psychological health.

The Complainant’s uncontested evidence in this case was that his salary was frequently late, sometimes short, and on occasion unpaid. Pay is a fundamental term of any employment contract and the conduct of the employer in this regard constitutes a fundamental breach of the employment contract, in and of itself. Failure to pay an employee in line with the terms of their employment constitutes a repudiation of the employment contract and it would have been entirely reasonable for the Complainant to resign his employment on this ground alone.

Separately, I am satisfied that the behaviour of the Respondent company was such that trust and confidence had broken down completely, as by way of email, in October 2024, the Complainant set out for the most senior people in the company, in writing, the identified issues, and the requirement to remedy them. The Respondent company’s response to that was for the Complainant to be summoned to a meeting (out of the sequence of his line management) the day after he sent the email, and purportedly put on a PIP plan the day after he objected to late-payment, non-payment and under-payment of his salary, and of the salaries of the people reporting to him, who were raising the issue with him, in circumstances where there were no prior performance issues over the course of several years’ service. I find that there was no reality to the pursuit of further grievance procedures, in circumstances where the behaviours complained of emanated from the most senior people in the Respondent company, who were on written notice of the identified issues. I find that it was reasonable in the circumstances for the Complainant to resign his employment.

I am required to make an award which is just and equitable in all the circumstances. I have considered the full remuneration package which the Complainant had in this employment. The maximum jurisdiction under the Unfair Dismissals Act 1977 is two years’ remuneration and it is a monetary and not a temporal amount.

Re-instatement and re-engagement were not sought. Compensation was the remedy sought, and I am required to award a sum which is ‘just and equitable’ in all the circumstances, which has regard to the conduct of the employer, mitigation undertaken by the Complainant, and economic loss including future prospective loss.

I found the Complainant to be a cogent and credible witness. I fully accept that there was a fundamental breakdown in the employment relationship due to the behaviour of the employer, that the failure to pay wages on time and as per the terms of the employment contract constitutes constructive dismissal, and that the employer broke the employee’s trust fundamentally. I accept the Complainant’s evidence that the PIP plan response to the Complainant raising the issue of late payment and non-payment and under payment of wages, on his own behalf, and on behalf of those reporting to him was an orchestrated response with exit in mind by the employer, and that the Complainant behaved reasonably in the face of that by submitting his resignation. I accept that the Complainant was entitled to consider himself constructively dismissed.

CA-00063557-001: I find for the Complainant.

I find that this complaint is well founded.

I find that the Complainant was unfairly constructively dismissed in breach of the requirements of the Unfair Dismissals Act 1977.

Having carefully considered the case, and the matters to which I am required to have regard in determining ‘just and equitable’ compensation, I direct the Respondent to pay the Complainant €67,500 nett within  42 days of the date of this decision.

Unfair Dismissal; Constructive Dismissal; Fundamental Breach; Pay;