About this case:

• Judgment:
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• Court:
  Workplace Relations Commission

Adjudication Officer Marguerite Buckley said that the managing director of the company, for whom the start-up was a side venture, took “a lax view” of his contractual requirements and paid only “lip service” to grievances raised.

The complainant also said he had not been paid for the first seven months of his employment, but Adjudication Officer Buckley found that this aspect of the complaint was out of time.

Background

The respondent Gin Distillery Company commenced operating in 2016, and the complainant joined the company as a business development manager in October 2016. The general outline of his role was to be in the area of driving sales, marketing events, and social media.

The complainant resigned from his position in September 2018 and thereafter brought a complaint to the Workplace Relations Commission, seeking redress for non-payment of wages, constructive dismissal, and outstanding expenses.

Non-payment of wages

Seeking adjudication under section 6 of the Payment of Wages Act 1991, the complainant’s case was that he was not paid wages or holiday pay. The complainant joined the company in October 2016; however, he did not receive payment for expenses until January 2017, and did not receive payment for wages until May 2017. While he believed he would get paid eventually, he said that the working environment only deteriorated as time went on.

In response to the complaint, the company submitted that the complainant was out of time to bring his claim under the Payment of Wages Act 1991, as he had six months to bring the complaint and in exceptional circumstances had twelve months. The company also submitted that payment was “deferred” and therefore not covered by the 1991 Act, and that it had been agreed between the parties that “when the company could pay, it would pay”.

The Workplace Relations Commission was provided with emails between the complainant and the managing director on the day of the complainant’s resignation from the company, in which the managing director stated that he would get back to the complainant about holiday pay and monies owed “once he had spoken to the accountant”.

Adjudication Officer Buckley said that the contract of employment contained no reference to deferred payments, and accepted that wages from October 2016 to May 2017 were properly payable to the complainant. However, under s. 41(6) of the Workplace Relations Act 2015, a complaint should be presented within six months, and the Adjudication Officer has limited power to extend time by a further six months if the failure to present the complaint was due to reasonable cause. Adjudication Officer Buckley said that the deduction of wages did not continue post-May 2017, and therefore the complaint was out of time.

Adjudication Officer Buckley found that the claim for non-payment of wages for the two weeks prior to the complainant’s resignation, and for accrued holiday pay, was well founded. As such, the Complainant was awarded €3,333 under this heading of the complaint.

Constructive dismissal

Seeking adjudication under Section 8 of the Unfair Dismissals Act 1977, the complainant’s case was that he resigned due to breach of contract on behalf of the respondent company – his expenses were not paid on time, and were sometimes paid two to three months late; he bought props and paid for fuel for the business; he had to pay for supplies to sell the Respondent’s product at festivals; and in the end, it was costing him money to work for the company.

The complainant submitted that he had to go to his GP for work-related stress issues, and that the financial issues with the respondent delayed him in trying to get a mortgage. When he raised these issues with the managing director, he was told that “the money just wasn’t there”. Further issues arose when the respondent hired other people to work for the company, despite the complainant still being owed money.

Adjudication Officer Buckley said the respondent “had a lax view of its contractual requirements with the complainant” and only “paid lip service” to the complainant’s grievances “but did nothing to address them head on”.

Section 1 of the Unfair Dismissals Acts 1977-2007 defines constructive dismissal as: “The termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

Adjudication Officer Buckley accepted that the complainant had an entitlement to resign on the basis that there had been “a significant breach of contract by the respondent going to the root of the contract (payment of wages and expenses)”. It was also accepted that resignation was not the first option taken, given that he had outlined his grievances, and these were not adequately addressed.

Concluding that this complaint was well-founded, Adjudication Officer Buckley awarded the complainant €6,000.

Adjudication Officer Buckley also awarded the complainant €200 for outstanding expenses properly vouched in accordance with the contract of employment.

• by Róise Connolly for Irish Legal News