EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Steven Lynch UD1599/2013
MN758/2013
- Claimant
Against
Donegal Highland Radio Limited T/A Highland Radio - 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: Ms. E. Daly
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this claim at Letterkenny on 17th April 2015, 7th July 2015, 8th July 2015
and 6th Oct 2015.
Representation:
Claimant: Ciaran F. MacLochlainn, C.S. Kelly & Co., Solicitors, Market House,
Buncrana, County Donegal
Respondent: Purdy Fitzgerald Solicitors, Solicitors, Kiltartan House, Forster St., Galway
Background:
This is a case of constructive dismissal.
The respondent company operates a radio station for the North West region. The respondent took ownership of this station in 2008. The claimant was employed a radio presenter from the 14th March 2004, he also carried out a commission based role in sales for the station. There was no written contract of employment; however, a list of proposals including hours of employment and a salary were agreed and accepted. The claimant also had the use of one of the three leased company cars which he picked up at the station after his programme on Monday afternoon and returned it to the respondent after his show was completed on a Friday afternoon. The respondent paid for the tax, insurance and fuel for this car.
Due to a downturn in business a 10% pay-cut was introduced in 2009. A 5% cut had been agreed by staff members but all were informed a 10% cut was required to keep the business going. In 2013 the list of customers relating to the claimant was reduced to fifteen and the use of the company car was removed from him. In April 2013 the claimant’s list of customers was completely removed. The claimant resigned his position by email dated April 24th 2013 giving one month’s notice.
Claimant’s Position:
The former General Manager (CC) of the radio station gave detailed evidence of the history of his employment, the radio station and the financial difficulties it had experienced before and after the respondent had taken over its running in 2008. He explained that over a period of years the respondent had extracted monies from the radio station in order to service bank debts.
He recruited the claimant SL as a radio presenter who proved to be very successful. Initially it was part-time but he was given a 2 hour mid-day show and in order to earn a sustainable wage an agreement was reached that he would earn commission on sales (approx. 6k per month) to boost his income and that he would have the use of a car Monday to Friday because of the distance he had to travel.
CC told the Tribunal that in 2012 a new Marketing Manager (JC) was employed. It was decided that the number customers the claimant would deal with would be reduced from approximately 40/50 to 15 as he was not bringing in enough revenue to the station. This resulted in a reduction in his salary. He also added that JC decided that the use of the company car be taken from the claimant. This in turn increased the travel expenses of the claimant in order to attend work daily.
The claimant approached CC with his concerns regarding his depleting salary. CC spoke to the Board relaying the claimant’s concerns. On the 24th April 2013 the claimant wrote a detailed email to CC regarding his salary, the removal of his customer list, the removal of the use of the company car during a difficult period of time in his personal life. He informed CC that he was formally handing in his notice. CC in turn forwarded this letter to the Directors of the respondent – GR and TR.
CC told the Tribunal that he spoke to the claimant to try persuade him to remain at the radio station but he, the claimant, would not. An offer was made by the respondent to the claimant but the claimant refused it. No higher amount was ever suggested to CC so he had nothing further to negotiate with. The claimant in turn put a figure to the respondent, the amount that would be required for him to remain but the respondent suggested that his resignation be accepted and another sales employee be hired. The claimant left his employment.
Under cross examination CC stated that the claimant left the respondent in May and he himself left on 10th June. He agreed that he did compete for a broadcasting licence with a consortium and that had they been successful in their application they would have had no hesitation in employing the claimant. He said he was disappointed that the claimant had to leave but he knew he couldn’t afford to continue if his sales were taken from him. CC said he attended board meetings, told the respondent to do all in their power to keep the claimant but the respondent TR said they could not afford to meet his demands, to accept his resignation and to seek a replacement (as per e-mail 3rd May 2013).
CC disagreed that the claimant had any use of the pooled cars after Jan 1st. He said that the new Marketing Manger JC used the car, it never went back to the garage so no savings were made. He stated that JC was obsessed with the claimant, other peoples sales figures were down but they did not get the same ongoing pressure that the claimant did.
The claimant SL gave evidence of working in radio from the age of 12. It was what he loved to do and jumped at the chance when offered a part time role by CC in 2004. He began filling in on shows and was then given his own show on Thursday and Friday nights. He was able to maintain his job in a doctor’s surgery while doing the evening shows. He loved the job and when a permanent slot was offered, Monday/Friday 1.30 to 3.30pm he told CC that he could not afford to do it, the distance was one hours drive there and back and he would be unable to continue in the surgery, he couldn’t afford to take it.
CC came back to him with a proposal of doing sales along with programming. He handed in his notice to the surgery and loved his new full time job. He did his radio programme and called to customers/advertisers on his way to and from the station. SL’s father became ill and passed away on 11th October 2012. For the last few months the claimant moved into the house of his father and needed to be there as much as possible. He explained the situation to CC who was very supportive, he told him that he would do as much as he could by phone/e-mail, he knew his sales would be down but he needed to be home after each show.
On 10th October he received an e-mail from JC asking why he had missed a sales meeting. It was the day before his father passed away and everybody in the station knew the situation. JC was the son-in-law of one of the directors and SL felt there was never a good relationship between them. There were meetings all the time, he would come in to do his show and an e-mail would arrive “come down and see me”. The claimant said that JC was ill informed, just wanted sales/targets and was expecting too much. It was in the claimant’s interest to sell, he got paid partly by commission. He was informed (days after his return from the bereavement) that the company car would be taken from him in January 2013 and his client base reduced to 15 customers from an overall amount of 60/70. Then the 15 customers were then later removed and he could no longer make ends meet. He felt he had no choice other than resign. He took two weeks off and worked notice of a further two weeks so that another person could be found to fill in on the radio programme. The claimant gave evidence of loss.
Respondent’s case:
JC gave evidence of having joined the company in February 2012 for the purpose of driving sales and revenue. He reported to the board and the MD. He tried to put structure on the sales team and meet with them weekly or monthly as required. He looked at the claimant’s sales area and e-mailed him a list of potential customers on 13th February. JC tried over the following months to provide information and look at areas that might help the claimant with his sales.
JC said that he backed off around June/July because he was aware of the claimant’s fathers illness but was not aware of the seriousness of the situation when he sent the e-mail on 10th October. He sent another e-mail saying he wouldn’t have sent it if he had known and to disregard the previous one.
In early 2013 he said that the 15 customers the claimant was left with provided 75% of his revenue but that continued to decline. The claimant didn’t object when they were removed from him, he was relieved if anything. JC tried everything to get the claimant to engage but felt that SL was avoiding him and making no effort to develop the business. JC denied using the company vehicle and said it was a pool car, maybe he went to the bank occasionally but that would be it. He thought the claimant made a mistake by leaving the station, he had a good radio show.
TR director with the respondent said met with the claimant at the station. He told him that the respondent would like him to stay as a radio presenter but couldn’t meet his demands for 10 hours of broadcasting. He offered the claimant €450 but he felt that the claimant had his mind made up to go. TR got an e-mail from CC to let him know that the claimant had resigned. He was aware of the claimant’s sales decline because it was brought up at board meetings but felt it was a pity to lose him and asked (e-mail on 24th April) that CC as the manger, meet with him again and see what it would take to retain him as a presenter. TR didn’t hear anything back from CC and made contact with him on 29th April asking is he could follow up on the situation. He expected CC to negotiate but in hindsight felt the CC had other issues. He never gave CC a maximum amount to negotiate with but felt that as he was station manager and part of the problem. Ultimately the claimant had to take responsibility, he wouldn’t come back with a figure he would accept and his sales were not good enough to continue with commission.
GR director told the Tribunal that the respondent had been very gullible, the claimant had a very close relationship with CC but not the directors. The company started with an offer which they thought was fair, moved to as far as €450 and also additional monies for fuel but the claimant never came back with anything except his original salary. .
Determination:
The Tribunal is satisfied that the employer’s behaviour justified the claimant’s resigning and claiming constructive dismissal. There was a fundamental breach of contract in allowing an accumulation of losses which led to his income being very significantly reduced without his agreement. Accordingly, the claim under the Acts succeeds.
Having heard evidence of loss the Tribunal notes that the claimants attempts to find alternative employment was mainly limited to broadcasting which was too restrictive an approach in the climate that prevailed at the time. The Tribunal awards the claimant the sum of €26,000.00 as compensation under the Unfair Dismissals Acts, 1977 to 2007.
As this was a case of constructive dismissal and the claimant left his employment, working out four week’s notice, the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)