Workplace Relations Commission (WRC) - RECENT Decisions & judgements
Adjudication Reference: ADJ-00006308
Failure to follow Due Process equates to award of €6,000 for Complainant
The Complainant worked as a Deli Assistant. Prior to returning to work following maternity leave in February 2016, the Complainant informed the Manager that she would be unable to work weekends due to childcare commitments. She was informed that the Employee who had replaced her whilst she was on maternity leave was now covering the 8am to 4pm shifts, Monday to Friday. In light of this, the Complainant handed in her notice.
However, subsequently agreement was reached that the Complainant could work the 8am to 4pm Monday to Friday shifts. The Respondent stated that the Complainant was informed that she would still be required, on occasion, and with notice, to work on a weekend.
In June 2016, the Complainant was asked by the Manager to work over a certain weekend. The Respondent submitted that the Complainant had agreed to work on this Sunday and had texted him the week before to check her hours for this day. On the Friday before the Sunday in question, the Complainant texted the Respondent to state that she would not be attending work on the Sunday. The Respondent phoned the Complaint, and during the call the Complainant stated that she could not “point blank, do Sunday”.
The Manager told the Complainant not to come to work on the following Monday and that “I’ll sort out your paperwork there for next week”. Thereafter, correspondence was exchanged between the Complainant’s solicitor and the Respondent, in which, at first the Respondent refused to recognise the solicitor as a representative of the Complainant, and then stated that the Complainant remained an Employee and the Respondent was attempting to get in touch with her.
In January 2017, the Respondent wrote to the Complainant and furnished her P45, stating that as no formal resignation had been received the Complainant’s contract of employment was only terminated on receipt of the notification of the Complainant’s complaint to the WRC. The Complainant submitted that this correspondence was received despite the clear verbal termination of the Complainant’s employment during the telephone call of June 2016 and receipt shortly thereafter of her outstanding holiday pay.
At the adjudication hearing, the Adjudication Officer noted that there was no dispute between the parties around the requirement for the Complainant to work some Sundays and noted from the evidence that the Complainant indicated in some text messages that she would be willing to work some weekends if given a few weeks’ notice. However, for the Sunday in question, the Complainant advised that she would be unavailable to work on this particular day (despite having earlier agreeing to do so). Having reviewed the evidence and submissions in this case, the Adjudication Officer found that it was not unreasonable for the Complainant to have considered herself dismissed given the words issued by her Employer, “to sort out her paperwork in the following week” and issuing of outstanding holiday pay and therefore the Complainant was dismissed by phone call without due process or procedure. In determining the dismissal to have been unfair the Complainant was awarded the sum of €6,000 in compensation.
The likely frustrations of the Employer given the actions of the Employee in subsequently advising of her unavailability / unwillingness to work on the given Sunday (despite initially agreeing to do so) are understandable. Indeed in this case, the agreement by the Employee to work initially on the day in question did not appear to be in dispute. Furthermore, the actions of the Employee in refusing subsequently to work on a given day could reasonably be viewed as most serious, warranting potentially some form of disciplinary action with further discussion to agree instances in which the Employee would work outside of Monday to Friday.
The Employer, by virtue of the nature of the critical phone call with the Employee and words spoken in June 2016 and action taken shortly thereafter to arrange for payment of holiday pay, left the Adjudicator with no option but to find the dismissal unfair given the lack of required procedural steps taken to determine a sanction, if any, and other actions to be taken.
Adjudication Reference: ADJ-00003815
Case of Constructive Dismissal Claim fails
The Complainant commenced employment with his Employer (a shop) in 2006, ending in March 2016. The shop was taken over by the Respondent in February 2016. According to the submission the Respondent's manner was aggressive and confrontational from the start.
The Complainant stated that he was threatened by the Respondent with phrases being addressed to him such as "if you don't pull up your socks you're out" and "are you going to pay", when discussing out of date stock. It was submitted that the Respondent made unreasonable demands of the Complainant such as getting a new uniform at his own expense and working an extra half-hour to hour every day without pay. The Complainant submitted that the persistently demeaning and aggressive behaviour of the Respondent was extreme and unreasonable as to represent a fundamental and repudiatory breach of his employment contract. The final straw for the Complainant came on the day he was asked to do security while others, whom he had trained in, did his job. That was the last day he worked for the Respondent arguing at the hearing that the behaviour of the Respondent was so unreasonable as to justify him terminating his employment with the Respondent. In response, the Respondent put forward that all he did was try and tighten up a business that was in serious difficulty.
In determination of its decision, the Adjudication Officer, whilst acknowledging the comments to have been made to be crude and aggressive manner did not believe them to be threatening in nature. The Adjudication Officer made reference to the burden on the Complainant to successfully demonstrate that it was reasonable for the Complainant to terminate his / her own employment due to a significant breach by the Employer of a fundamental term of the employment contract or due to the nature and extent of the Employer’s conduct and the circumstances in which the Employee was expected to work.
In determination of its decision, the Adjudicator found that the Complainant was not forced to leave, it was his decision and was not based on any unreasonable action by the Respondent. The Adjudicating Officer stated that asking the Complainant to observe the goings on in his shop did not seem to be an unreasonable request, yet for the Complainant it was the ‘final straw’.
A high bar applies in order to successfully demonstrate an Employee was left with no option but to resign given the actions of his / her Employer (the first test). In addition, in constructive dismissal claims, the second test to be considered relates to the behaviour of the Employee and determination of the extent, if any, to which the Employee sought to raise his / her concerns to his Employer and have such concerns addressed and resolved informally or as part of any formal grievance process. In this instance the Adjudication Officer found that the Complainant did not satisfactorily meet either test, specifically referring to the requests by the Employer being reasonable in nature and failure by the Complainant to raise his concerns prior to taking the decision to resign his employment. Accordingly, the constructive dismissal claim under the Unfair Dismissals Acts, failed.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has seen the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA). In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and much more streamlined, simplified process.
Failure to follow Due Process equates to award of €6,000 for Complainant
The Complainant worked as a Deli Assistant. Prior to returning to work following maternity leave in February 2016, the Complainant informed the Manager that she would be unable to work weekends due to childcare commitments. She was informed that the Employee who had replaced her whilst she was on maternity leave was now covering the 8am to 4pm shifts, Monday to Friday. In light of this, the Complainant handed in her notice.
However, subsequently agreement was reached that the Complainant could work the 8am to 4pm Monday to Friday shifts. The Respondent stated that the Complainant was informed that she would still be required, on occasion, and with notice, to work on a weekend.
In June 2016, the Complainant was asked by the Manager to work over a certain weekend. The Respondent submitted that the Complainant had agreed to work on this Sunday and had texted him the week before to check her hours for this day. On the Friday before the Sunday in question, the Complainant texted the Respondent to state that she would not be attending work on the Sunday. The Respondent phoned the Complaint, and during the call the Complainant stated that she could not “point blank, do Sunday”.
The Manager told the Complainant not to come to work on the following Monday and that “I’ll sort out your paperwork there for next week”. Thereafter, correspondence was exchanged between the Complainant’s solicitor and the Respondent, in which, at first the Respondent refused to recognise the solicitor as a representative of the Complainant, and then stated that the Complainant remained an Employee and the Respondent was attempting to get in touch with her.
In January 2017, the Respondent wrote to the Complainant and furnished her P45, stating that as no formal resignation had been received the Complainant’s contract of employment was only terminated on receipt of the notification of the Complainant’s complaint to the WRC. The Complainant submitted that this correspondence was received despite the clear verbal termination of the Complainant’s employment during the telephone call of June 2016 and receipt shortly thereafter of her outstanding holiday pay.
At the adjudication hearing, the Adjudication Officer noted that there was no dispute between the parties around the requirement for the Complainant to work some Sundays and noted from the evidence that the Complainant indicated in some text messages that she would be willing to work some weekends if given a few weeks’ notice. However, for the Sunday in question, the Complainant advised that she would be unavailable to work on this particular day (despite having earlier agreeing to do so). Having reviewed the evidence and submissions in this case, the Adjudication Officer found that it was not unreasonable for the Complainant to have considered herself dismissed given the words issued by her Employer, “to sort out her paperwork in the following week” and issuing of outstanding holiday pay and therefore the Complainant was dismissed by phone call without due process or procedure. In determining the dismissal to have been unfair the Complainant was awarded the sum of €6,000 in compensation.
The likely frustrations of the Employer given the actions of the Employee in subsequently advising of her unavailability / unwillingness to work on the given Sunday (despite initially agreeing to do so) are understandable. Indeed in this case, the agreement by the Employee to work initially on the day in question did not appear to be in dispute. Furthermore, the actions of the Employee in refusing subsequently to work on a given day could reasonably be viewed as most serious, warranting potentially some form of disciplinary action with further discussion to agree instances in which the Employee would work outside of Monday to Friday.
The Employer, by virtue of the nature of the critical phone call with the Employee and words spoken in June 2016 and action taken shortly thereafter to arrange for payment of holiday pay, left the Adjudicator with no option but to find the dismissal unfair given the lack of required procedural steps taken to determine a sanction, if any, and other actions to be taken.
Adjudication Reference: ADJ-00003815
Case of Constructive Dismissal Claim fails
The Complainant commenced employment with his Employer (a shop) in 2006, ending in March 2016. The shop was taken over by the Respondent in February 2016. According to the submission the Respondent's manner was aggressive and confrontational from the start.
The Complainant stated that he was threatened by the Respondent with phrases being addressed to him such as "if you don't pull up your socks you're out" and "are you going to pay", when discussing out of date stock. It was submitted that the Respondent made unreasonable demands of the Complainant such as getting a new uniform at his own expense and working an extra half-hour to hour every day without pay. The Complainant submitted that the persistently demeaning and aggressive behaviour of the Respondent was extreme and unreasonable as to represent a fundamental and repudiatory breach of his employment contract. The final straw for the Complainant came on the day he was asked to do security while others, whom he had trained in, did his job. That was the last day he worked for the Respondent arguing at the hearing that the behaviour of the Respondent was so unreasonable as to justify him terminating his employment with the Respondent. In response, the Respondent put forward that all he did was try and tighten up a business that was in serious difficulty.
In determination of its decision, the Adjudication Officer, whilst acknowledging the comments to have been made to be crude and aggressive manner did not believe them to be threatening in nature. The Adjudication Officer made reference to the burden on the Complainant to successfully demonstrate that it was reasonable for the Complainant to terminate his / her own employment due to a significant breach by the Employer of a fundamental term of the employment contract or due to the nature and extent of the Employer’s conduct and the circumstances in which the Employee was expected to work.
In determination of its decision, the Adjudicator found that the Complainant was not forced to leave, it was his decision and was not based on any unreasonable action by the Respondent. The Adjudicating Officer stated that asking the Complainant to observe the goings on in his shop did not seem to be an unreasonable request, yet for the Complainant it was the ‘final straw’.
A high bar applies in order to successfully demonstrate an Employee was left with no option but to resign given the actions of his / her Employer (the first test). In addition, in constructive dismissal claims, the second test to be considered relates to the behaviour of the Employee and determination of the extent, if any, to which the Employee sought to raise his / her concerns to his Employer and have such concerns addressed and resolved informally or as part of any formal grievance process. In this instance the Adjudication Officer found that the Complainant did not satisfactorily meet either test, specifically referring to the requests by the Employer being reasonable in nature and failure by the Complainant to raise his concerns prior to taking the decision to resign his employment. Accordingly, the constructive dismissal claim under the Unfair Dismissals Acts, failed.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has seen the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA). In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and much more streamlined, simplified process.
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
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