Case Number: ADJ-00013984. Workplace Relations Commission.

Docket NumberADJ-00013984
Hearing Date11 July 2018
Date01 July 2018
CourtWorkplace Relations Commission
PartiesDelivery Driver v Courier Company
Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The Respondent did not provide a submission to the WRC nor was he present at the hearing. The WRC wrote to the Respondent informing him of the date, time and location of the adjudication hearing.

Background:

The Complainant was employed by the Respondent as a Delivery Driver from 25 July 2016 until 6 November 2017 on a weekly wage of €400 for a 40 hour week.

The Complainant is claiming that he had no choice but to terminate his employment with the Respondent as a result of the Respondent’s behavior.

Summary of Complainant’s Case:

The Complainant submitted that in October 2017 he had a meeting with the Respondent. According to the Complainant, the Respondent said that he could no longer pay the Complainant the amount he had been paying him. Instead he proposed to reduce the Complainant’s wages by €50 per week and to give him €350 into his hand. The Complainant claimed that the Respondent told him to go down to the social welfare office where he would be able to collect €188 on top of the money the Respondent was giving him.

The Complainant contended that he indicated to the Respondent that he could not agree to the Respondent’s proposed course of action as he would be breaking the law. According to the Complainant, the Respondent said to leave it with him and he would see what he could do.

The Complainant submitted that the Respondent also gave him his P45 and said that it did not mean anything – he was just giving it to him because the name of the company had been changed.

The Complainant said that the Respondent rang him the following week to say he could not do anything for him. The Complainant asserted that the Respondent said that if the Complainant could not work under the new terms, he had to let him go.

According to the Complaint, when he told the Respondent that he could not agree to the Respondent’s proposal, the Respondent told him to leave the keys of the van under the wheel and someone would come out and pick up the van. That night someone picked up the van and the Complainant has not heard anything from the Respondent since that date.

Summary of Respondent’s Case:

There was no submission or appearance by the Respondent. The Respondent gave no notice to the WRC in advance of the hearing that he would not be attending.

Findings and Conclusions:

As the Complainant is claiming constructive dismissal, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““dismissal”, in relation to an employee, means—

(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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ 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 as discharged from any other performance.”

The reasonableness test assesses the conduct of the employer and whether it “…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.”

According to the Supreme Court in Berber -v- Dunnes Stores: “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.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.

Based on the Complainant’s uncontested evidence, I find that the circumstances which gave rise to the Complainant’s decision to resign from his employment occurred at a meeting with the Respondent where the Respondent indicated that due to his financial circumstances he could no longer pay the Complainant the rate he had been paying him.

I find that the Respondent indicated that he intended to reduce the Complainant’s wages by €50 and to pay the remainder of his wages (€350) into his hand.

Furthermore, I find that the Respondent suggested that the Complainant would be entitled to a social welfare payment of €188 per week.

I find that the Complainant informed the Respondent that the proposed changes to his terms and conditions were not acceptable to him as they would be illegal.

I find that the Respondent undertook to address the Complainant’s concerns about the proposed changes to his terms and conditions but failed to do so.

I find that when the Respondent failed to address the Complainant’s concerns, he was left with no option but to resign.

Additionally, I find that the Respondent gave the Complainant his P45 on the pretext that it was necessary as result of a change in the Company’s name.

I find that it would have been reasonable for the Complainant to conclude that his employment with the Respondent had been terminated when he was issued with his P45.

Under the two-pronged test for Constructive Dismissal provided in Western Excavating (ECC) Ltd -v- Sharp, I find that the Respondent acted completely unreasonably when he proposed that the Complainant enter into an arrangement which was illegal.

Likewise, under the contract test, I find that the behaviour of the Respondent was a flagrant breach of the generally accepted terms of an employment contract whereby the employer puts systems and procedures in place to facilitate the employee’s compliance with his statutory obligations.

Based on the uncontested evidence adduced, I find that the Complainant had no option but to terminate his employment with the Respondent as a result of the Respondent’s behaviour. I find, therefore, that the Complainant was constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977.

Following his dismissal, the Complainant commenced working on a self-employed basis. The Complainant submitted that his current weekly income was approximately €100 less than his weekly income had been while he was employed by the Respondent.

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