EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD425/2014
MN172/2014
CLAIM(S) OF:
Colin Holliday Claimant
Against
Denis Kinane Motors Limited Respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr. J. Browne
Mr. F. Dorgan
heard this claim at Thurles on 4th March 2015 and 30th April 2015
Representation:
Claimant: John Fitzgerald, J.J. Fitzgerald & Co., Solicitors, Friar Street, Thurles, Co. Tipperary
Respondent: Donal T. Ryan Solicitors, 89-90, Main Street, Cashel, Co. Tipperary
Summary of evidence:
The claim before the Tribunal was one of constructive dismissal.
It was the claimant’s case that his P60s did not reflect his full earnings. It was accepted by the respondent that a sum of €80 per week paid to the claimant was not properly returned to the Revenue Commissioners; however the Managing Director was unaware of this during the time of the claimant’s employment.
Claimant’s case:
The claimant outlined that he has extensive experience working in the car industry. When he commenced working with the respondent in November 2004 he enjoyed a good working relationship with the Managing Director (MD) albeit there were times when MD would lose his temper. However, it was the claimant’s case that over time MD began to refer to him as the “bloody Englishman,” swore at him during arguments and referred to him as “getting commission for old rope.” The claimant outlined a number of incidents to the Tribunal which occurred during his employment.
During 2009 the claimant was placed on a three day week. It was the claimant’s case that he was psychologically undermined from this time and matters deteriorated. The claimant was ill during 2011 but latterly returned to a four day week in September 2012.
The claimant opened a letter to the Tribunal which he had written in November 2012 to MD. The letter was prompted by the fact that the MD had sold a car to the claimant’s customer in his absence when he had been sent offsite to help tow a car. Thus the claimant had missed out on the commission on the sale of the car. In this letter the claimant stated that he was subjected to angry and demeaning outbursts from MD during his employment as well as unprofessional, degrading and unjustified comments. As a result of this letter MD met with the claimant and at this meeting the claimant stated that things could not continue as they were and that he wanted to be treated fairly. Matters were mended somewhat following this meeting.
The claimant recalled an incident in mid 2013 when MD had threatened to cut his commission on a sale because he had not secured a telephone number for the customer. The claimant had not recorded a telephone number as the person was a pre-existing customer whose details the company already had.
On another occasion in September 2013 when MD was on annual leave the claimant asked the office administrator to process a finance application for a customer who had chosen a vehicle to buy. The customer was approved for the finance but did not purchase the vehicle. MD returned from annual leave and accused the claimant of wasting the office administrator’s time.
In or around September 2013 there was a discrepancy on the mileage of a vehicle. The customer who purchased it queried the mileage as the header board was different than that displayed on the respondent’s website. The claimant had put the information on the website while MD’s son had written the header board. When the customer who bought the vehicle queried this the claimant explained that it was kilometres on one and miles on the other and he also obtained the service history for the vehicle for the customer. He told the MD that he had gotten this and he told the claimant to “f**k off, you’ve done enough damage. The claimant went to the office administrator and broke down and subsequently left the premises.
On 17th October 2013 a customer wanted to buy a Honda Civic but wanted grille and alloys from another vehicle. The claimant agreed to this as he knew MD did not like the grilles but when he told MD he was angry and indicated that he was letting customers take advantage of him. On a number of occasions near the end of his employment MD would gesture and tut while the claimant was on the telephone to customers and he would listen in to what the claimant was saying to customers. This happened three or four times towards the end of the employment. On occasion MD said to the claimant that he was lucky to even have a job.
The claimant attended a doctor on 18th October 2013 as he felt unwell. The claimant informed his doctor that he was being bullied at work as by this time MD’s bursts had become increasingly frequent. The claimant was provided with medication and a medical certificate.
From October 2013 to April 2014 the claimant was absent from work but he attended the workplace at MD’s request on approximately four occasions to place advertisements for the company’s vehicles on the internet. He was not paid for this work and felt uncomfortable in the workplace during the time he was there. During this period the claimant began to attend a psychologist solely in relation to his employment situation.
The claimant and MD met on 20th December 2013 as the claimant felt that he might have to leave the employment but he wanted to try and have a further discussion with MD. He told MD that he could not continue to be treated in the manner in which he had been and that MD had embarrassed him in front of the office administrator regarding the finance application incident. The claimant confirmed to the Tribunal that he let MD know at this meeting that he was absent from work as a result of this incident. The medical certificates he submitted to the respondent stated that he was absent due to work-related stress.
The claimant’s solicitor wrote a letter in March 2014 informing the respondent company that the claimant was resigning from the employment. The claimant felt he had no choice but to resign for his own well-being as the treatment in the employment was becoming worse.
On the second day of the hearing the Clinical Psychologist the claimant had attended gave evidence. The claimant attended on numerous occasions commencing on the 14th November 2013. The witness gave extensive evidence of the clinical interview and psychometric testing carried out with the claimant, the symptoms the claimant was suffering and the treatment he required. The witness found the claimant symptoms were consistent with an anxiety disorder, clinical depression and Post Traumatic Stress Disorder (PTSD).
The claimant was treated for his symptoms over a period of six sessions between November 2013 and December 2014. At the end of these sessions he found the claimant was free of PTSD symptoms.
Respondent’s Case:
The Managing Director (MD) and owner of the respondent business gave evidence.
MD said the claimant had been a very good salesman but was slightly forgetful when it came to obtaining contact details from potential clients and other administration work. The claimant had also overseen the respondent’s website inputting and updating when required.
In late November 2012 the claimant informed MD of a potential sale of a car. The potential client was due to come in on Thursday the 22nd November 2012 at 11am to view two cars. On the day in question the client had not arrived. MD asked the claimant had she forgotten and maybe he should telephone her. The claimant did not have a contact number for her. The following day MD asked the claimant to go with his son (D) who also worked at the garage to pick up a car. In the claimant’s absence the client he thought was to arrive the day before arrived with her mother to view the cars. When MD spoke to her she said her appointment was for that day, Friday 23rd November at 11am. MD proceeded to show her the cars and a deal was made. The claimant returned and was not happy the sale had taken place without him, she was his client and he would not receive the commission on the sale. MD told the Tribunal that he had in no way been underhanded in achieving the sale. The claimant had the wrong date in his diary and had no contact number for the potential client.
On the 26th November 2012 the claimant handed a letter of complaint, dated 24th November 2012 to MD. The following Wednesday he met with the claimant to discuss the matter of the commission on the sale of the car. MD told the claimant that as a matter of goodwill he would pay him the commission on the car even though it had not been his sale. They shook hands and the office administrator wrote up the details. MD told the Tribunal that he felt that was the end of the matter.
MD recalled being in America in September 2013 when the claimant contacted him regarding a query on a vehicle on the forecourt. The details were discussed and agreed and MD assumed the sale would go through. On his return however MD noticed the same vehicle still remained on the forecourt for sale. He spoke to the office administrator who informed him the person interested in the vehicle had changed her mind when he husband had viewed it; they had not been very nice people to deal with. When he spoke to the claimant regarding the same vehicle he ascertained the claimant had not secured a deposit when the client has stated her interest in a purchase.
In October 2013 an issue arose regarding another vehicle. The claimant was dealing with a customer who said he would buy a particular vehicle if the front grille and wheels were replaced with another model. The claimant spoke to MD regarding the request who told him that a customer could not make such requests. However, MD made the requested changes to the vehicle and the car was purchased giving the claimant a commission earned.
On the 18th October 2013 the claimant arrived to work but soon left stating he felt unwell and was attending his doctor. He did not return to work. Medical sick certificates were submitted on his behalf to the respondent. On the 24th October 2013 a car maker the respondent sold was holding a conference in Dublin. The claimant attended, even though he was absent on certified sick leave, and submitted his expenses of which he was reimbursed.
On the 16th November 2013 the claimant attended the respondent’s premises saying he was feeling better and would return to work in two weeks time. MD asked would he still update the website and he did for a further two weeks and then ceased.
MD wrote to the claimant some time later to ascertain when he was to return to work and if he was to attend the Christmas party. A text was later received stating he was not returning to work or attending the Christmas party.
The claimant’s solicitor wrote to MD on the 10th January 2014. MD told the Tribunal that on advice from his solicitor he forwarded this correspondence to his insurance company. The claimant still had a company car in his possession at this time. On the 7th March 2014 the claimant submitted his letter of resignation to MD. The company car was returned to the premises by the claimant’s wife a few days later.
On cross-examination MD told the Tribunal that the claimant had not been replaced when he resigned. MD agreed he had “everyday” words with the claimant in the past regarding his sales records but had never referred to the claimant’s nationality or said the claimant was being paid “money for old rope”. He had told the claimant that he was lucky to have a job but had not meant the comment in a “bad way.” When put to him he said that he had never bullied the claimant.
MD told the Tribunal that after the claimant had submitted his letter of complaint in November 2012 they had discussed the issue and shook hands on it. He felt the matter had been settled. MD said he did not feel that his behaviour towards the claimant would have lead to the claimant having to attend a clinical psychologist.
The office administrator gave evidence. She agreed that at the time there had not been proper human resource procedures in place but this had since changed.
Determination:
This matter came before the Tribunal by way of a claim for constructive dismissal. Accordingly the burden, which is a significant one was on the claimant to satisfy the Tribunal that it was reasonable for him to terminate his own employment due to a significant breach by the respondent of a fundamental term of the claimant’s employment contract or because of the nature and extent of the respondent’s conduct and the circumstances in which the claimant was expected to work.
In support of his case the claimant relied on alleged bullying, intimidation and harassment on the part of the respondent such that he, the claimant, felt that he had no option but to resign due to “workplace stress.”.
Having considered the totality of the evidence heard and the documentation submitted by both parties, the Tribunal concludes that the claimant has failed to meet the burden of proof and to establish that he was constructively dismissed.
Specifically, the claimant documented his grievances with the respondent by way of a letter addressed to him dated 12th November 2012. A discussion between the parties followed. The Tribunal accepts the respondent’s evidence as to what occurred in response to that letter and further accepts that an understanding and resolution was achieved at that point.
To support his contention that he was subsequently bullied intimidated and harassed, the claimant recited details of a number of incidents which neither in themselves nor viewed cumulatively could, in the respectful opinion of the Tribunal be reasonably seen as constituting bullying intimidation or harassment. The incidences seemed to the Tribunal to be no more that would be expected as part of the dynamic of a workplace like the respondent’s.
The Tribunal accepts that the claimant developed a stress condition. If work related such stress is a health and safety issue that an employer must address. The Tribunal is not satisfied that the respondent was given a reasonable opportunity to address the issue
The claimant has not succeeded in meeting the burden of proof in this case and, accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 is dismissed.
In addition the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, must fail in circumstances where the employee resigned from the employment.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)