The EAT have recently published a decision, Kostka -v- Kelliher UD2329/2010, which may cause some to agree or disagree with the determination depending on what way your thinking is on the situation.
In this case the employee was employed between April 2008 and September 2010, when his employment terminated. He was employed cutting bagging and loading turf in the employer's bog.
In August 2010 the employee was involved in a workplace accident and applied for disability benefits but was told by the Department of Social Protection that he was not registered for PRSI and therefore not entitled to any payment. The employee was always paid in cash and never received any payslips or P60s. Over the course of the Tribunal the Employer's representative stated that the Employer operated in "the black Economy" and did not pay tax or PRSI. It is notable how freely the employer in this case admitted to operating in the black economy and how forthright he was in in saying he did not pay tax.
Following his accident the employee was asked to return to work almost immediately, and if he did not do so his job would be gone. When he discovered that he was not registered for PRSI he had a 'nervous breakdown' and was not prepared to return to work.
The employers argument was that he was employed on a "take it or leave it" basis and paid cash for labour. In 1992 the employer was declared bankrupt and remained in that state now. The employer did however refute the employee's assertion that he was injured as he claimed it was actually from an assault earlier in the year.
In this case the employee filed a claim for constructive dismissal (amongst others) and the Tribunal determined that the employee did not "tender sufficient evident to satisfy the Tribunal that he was left with no option but to leave his employment due to the fact that he was not appropriately insured..."
it is interesting that this was deemed to have been no sufficient to justify the claim, however the failure of the employee to return to work was perhaps the most telling matter, as for any claim of constructive dismissal the employee must have been seen to have done everything in their power to address the issue prior to resigning. One would imagine that failing to offer insurable employment was grounds for a braking of the employment contract, however failing to engage may well have been detrimental to the determination falling in the employees failure, considering the burden of proof in any such claim rest firmly with the employee. However the Revenue may have a part to play in this yet when they see the failure to pay tax highlighted.
The EAT have recently published a decision, Kostka -v- Kelliher UD2329/2010, which may cause some to agree or disagree with the determination depending on what way your thinking is on the situation.
In this case the employee was employed between April 2008 and September 2010, when his employment terminated. He was employed cutting bagging and loading turf in the employer's bog.
In August 2010 the employee was involved in a workplace accident and applied for disability benefits but was told by the Department of Social Protection that he was not registered for PRSI and therefore not entitled to any payment. The employee was always paid in cash and never received any payslips or P60s. Over the course of the Tribunal the Employer's representative stated that the Employer operated in "the black Economy" and did not pay tax or PRSI. It is notable how freely the employer in this case admitted to operating in the black economy and how forthright he was in in saying he did not pay tax.
Following his accident the employee was asked to return to work almost immediately, and if he did not do so his job would be gone. When he discovered that he was not registered for PRSI he had a 'nervous breakdown' and was not prepared to return to work.
The employers argument was that he was employed on a "take it or leave it" basis and paid cash for labour. In 1992 the employer was declared bankrupt and remained in that state now. The employer did however refute the employee's assertion that he was injured as he claimed it was actually from an assault earlier in the year.
In this case the employee filed a claim for constructive dismissal (amongst others) and the Tribunal determined that the employee did not "tender sufficient evident to satisfy the Tribunal that he was left with no option but to leave his employment due to the fact that he was not appropriately insured..."
it is interesting that this was deemed to have been no sufficient to justify the claim, however the failure of the employee to return to work was perhaps the most telling matter, as for any claim of constructive dismissal the employee must have been seen to have done everything in their power to address the issue prior to resigning. One would imagine that failing to offer insurable employment was grounds for a braking of the employment contract, however failing to engage may well have been detrimental to the determination falling in the employees failure, considering the burden of proof in any such claim rest firmly with the employee. However the Revenue may have a part to play in this yet when they see the failure to pay tax highlighted.
