EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Roisin O'Connell UD75/2014
-claimant MN33/2014
against
Melvyn Hanley Solicitors
-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 J. Fahy B.L.
Members: Mr T. Gill
Mr J. Flavin
heard this claim at Limerick on 27th May 2015
Representation:
_______________
Claimant: Ms Mary Paula Guiness B.L. instructed by,
O'Mara Geraghty McCourt, Solicitors, 51 Northumberland Road, Dublin 4
Respondent: No appearance or representation on behalf of the respondent
Summary of Evidence
This is a case of Constructive Dismissal. The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 was withdrawn at the outset.
The claimant is a Solicitor who worked for the respondent legal practice. She initially joined the respondent as an apprentice Solicitor in 1998 and was offered a full position when she qualified in 2001.
The claimant agreed her salary in 2002 which included a 30% commission for any new business she brought into the practice. As this would be taxed the claimant agreed to reduce the commission amount to 15%. She received this commission on any new business she brought in up to 2007.
In 2007 it was suggested that the claimant jointly manage the firm with the accountant. A number of meetings took place and it was always put forward that the claimant would be offered partnership and that her leadership role was paving the way to this. The meetings continued throughout 2008 between the respondent Principal, the accountant and the claimant; they centred mainly around the claimant’s partnership, very limited financial information was available to the claimant. Eventually the claimant got the firm’s financial information and sought independent advice; the advice was not to become a partner in the firm. The claimant informed the respondent that she would not be accepting partnership but would continue in her management role. In October 2009 she informed the respondent that she did not want her name put to the professional indemnity forms; she was asked to re-consider this position on three occasions.
Cost-cutting within the practice became very important in 2009. The clamant took a 10% pay cut in March 2009. She took the pay cut on the basis that the newly qualified solicitor’s contract would not be renewed on expiry. In July 2009 the claimant was informed that the respondent could not afford to pay her commission. It was agreed in good faith that the commission payment would be deferred until the practise could afford to pay it. When the financial position stabilised the claimant raised her outstanding commission payment with the respondent.
The claimant was assured at a meeting on the 15th of October 2009 that her position was not under threat. At the end of November the claimant officially accepted the Management role within the respondent. On the 1st of December 2009 the accountant informed the claimant that if the fees continued to reduce ‘she’d be out of a job.’ The accountant left the practice in June 2010.
The newly qualified solicitor had been kept in employment after his contract expired, this was contrary to the circumstances in which the claimant agreed to take the pay cut. The work was not being allocated to the claimant as normal; she queried this and requested more work. The junior solicitor was being allocated new work in place of the claimant despite continued assurances from the principal that she would be allocated work. A letter from the respondent to a client in October 2011 raised alarm bells for the claimant as she had worked with the client before but only the principal and the junior solicitor were named as contacts for the respondent. The claimant felt that she was being frozen out of the practice. All new work was being allocated to the junior solicitor and the claimant’s clients were being re-directed to the junior solicitor.
In May 2012 the claimant again raised the issue of her unpaid commission and the allocation of work, as the firm had improved greatly and was doing well. The principal said he would revert to her regarding the commission and the ongoing issue of work allocation. The principal replied stating; ‘From my perspective I think your view in this matter is unfounded and to be quite frank I think it is unhelpful.’ The claimant responded in detail outlining her ongoing concerns. The claimant proposed that the firm pay for a course she was doing in the law society in lieu of the commission and on the 6th of September 2012 the principal said he could not afford to pay for the course. The issues were raised continuously by the claimant and in December 2012 the principal said ‘we’d come to an agreement in the New Year.’
On the 4th of January 2013 the claimant met with the principal. He denied the details of the commission agreement and said he would have to speak to the accountant to check his recollection. He also said he would provide the claimant with a list of files that he had directed to her over the last few years.
On the 8th of March 2013 the claimant again raised all of the ongoing issues with the respondent and specifically said, “I would like to express my unhappiness at the implicit threats that have been made on several occasions to the effect that if I don’t drop the (above) two concerns, this could jeopardize my future employment with the firm.” There was no response and a number more meeting were held with the same outcome. At a meeting on the 30th of May the respondent agreed to pay the claimant her outstanding commission after she provided him with a list and he wanted ‘no further discussion on the matter in writing.’
As of the 1st of October the claimant’s commission had yet to be paid. She sought a meeting with the principal. A meeting was arranged for the 17th of October 2013. On the 16th of October the principal asked for the list of files again. On the 17th of October he asked for the files to be dated and the rate of commission to be outlined; this would take some time, he also said he now wanted to query the list of files due for commission and would not discuss it further until this was done. The claimant said they needed to have the meeting, at this point he got very angry and aggressive and said he’s close to closing the firm and she was asking for €20,000. The claimant “called” him on his aggressive behaviour to which he said ‘no one else thinks that.’ The claimant left the office and went on sick leave after this incident.
The claimant resigned by letter dated the 11th of November 2013. The resignation letter again set out all of the issues and her treatment that led to her resignation. The respondent asked her to reconsider her decision but did he not offer any resolution to the issues. By letter of the 15th of November 2013 the respondent accepted the claimant’s resignation.
The claimant gave evidence of her Loss and attempts to mitigate her loss.
Determination
Based on the uncontested evidence of the claimant, the Tribunal find that she was Constructively Dismissed from her employment. Given her service and dedication to the respondent firm over 14 years, her continued patience and reasonable attitude in circumstances where the respondent has refused to deal with or resolve the issues the claimant repeatedly raised, the Tribunal find that the respondent’s conduct and treatment of the claimant entitled her to resign.
The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the Tribunal award the claimant €55,000.00 in compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)