UDD1614

• 1.This is an appeal, under section 9(1) of the Unfair Dismissals Act 1977 to 2015 (the Act), by Mr Colin Reid (the Complainant) against a decision the Adjudication Officer that a complaint he made that he was constructively dismissed from his employment by McAllister’s Garage Limited (the Respondent) was not well founded. The Adjudication Officer issued the decision on 4/12/2015. The Complainant appealed against the decision to this Court on 22/12/2015.

  2.The date on which the Complainant commenced employment with the Respondent is a matter of dispute between the parties. The Complainant submits that he commenced employment in 2001. The Respondent submits that he commenced employment in 2004. However nothing turns on this point.

  3.The Respondent is a motor dealership. The Complainant was employed as a salesman.

  4.In late 2012 the Respondent was experiencing trading difficulties and the then owners sold their shareholding to new owners who assumed control of the company. The new owners was a well-known motor dealer that trades under the name of Joe Duffy Motors.

  5.The Complainant’s case is that following the change of ownership his treatment at their hands left him with no choice but to terminate his employment.

  6.The Respondent denies the charges and submits that no dismissal took place and that the Complainant voluntarily resigned his position with the Company.

  7.The Complainant gave evidence to the Court. He stated that he had worked as a salesman with the Respondent since 2001. He said that he enjoyed his time with the Company and was very successful in his position. He said that he was the top performing salesman in the company. He said that in December 2012 he was told by the previous owners that they were in negotiations to sell the business. In late December he was told by his manager that the Company had been sold and that the new owners had taken over the Company.

  8.He said that the garage normally closed over the Christmas period and the staff were required to take holidays during that period. However this year he was told that the garage would open and he was required to work in the period between Christmas and the New Year. He said that he told the Company that he had holiday arrangements made and this would present difficulties for him. He said that he was told that he should not get off on the wrong foot and that he was required to work over the period. He said that he worked on the 28^thDecember at considerable inconvenience to himself and his family.

  9.He said that his contract of employment provided that he work Monday – Friday from 9.00 a.m. to 18.00 p.m. and every second Saturday. He said that following the change of ownership his Management attempted to change his starting time to 8.00 without his agreement. He said that he did not agree to this and continued working his contracted hours.

  10.He said that he tried to engage with the new Management on the matter but they simply told him in very aggressive and hostile terms that his hours had changed and he could take it or leave it.

  11.He said that under his contract of employment he was entitled to commission of 20% on the profit earned on all sales. He said that commission accounted for a very significant proportion of his total earnings. He noted that it exceeded his basic wages and accordingly was extremely important to him. He said that he was told by the new management that the commission rate would be reduced from 20% to 10% with effect from 1 April 2013. He said that he disputed this but was told at a series of meetings that it was not up for discussion and that it would be applied with or without his agreement. He said that these meetings were hostile and aggressive, were called at short notice, were not properly minuted, his views were discounted and Management’s treatment of him was dismissive.

  12.He said that these changes were introduced without his agreement and his earnings unilaterally reduced.

  13.He said that his desk was relocated within the garage and that this had the effect and intention of humiliating him. He said that he was effectively under permanent supervision. He also said that garage management started to follow him around and to constantly hover over him which he found very destabilising.

  14.He said that he found it hard to cope with this treatment and his sick leave increased as a result.

  15.He said that in May he was called to a meeting and instructed to hand over his phone. He said that his phone contained contact information essential for the conduct of his work. He asked to access this and was not allowed to do so. It also contained personal details and video and photographic footage of his family that he asked to access and was refused.

  16.He said that this became acute in May 2013 when his father died. He said that he was at work and when he went to the hospital he was told his father had passed away and that the hospital had been trying to contact him on his phone. However he no longer had access to it and he found this event very traumatic.

  17.He said that his phone had personal photographs of his father with his grandchildren that he was seeking to recover but he has not been allowed to do so. He said that he found this treatment unacceptable.

  18.He said that he was offered an alternative phone that did not contain the data he required, was an inferior hand set and had usage restrictions that were not part of the package he had enjoyed as part of his working arrangements. He said that he did not accept that phone.

  19.He said that he became ill in July 2013 that required him to take extended leave. He said that the main nature of that illness was stress related arising out the manner in which he was being treated by the new owners of the business. He said that while out on sick leave the Respondent required him to return the Company car that was part of his normal employment package and on which he paid benefit in kind.

  20.He said that taken together these behaviours drove him into bad health, deprived him of an acceptable working environment, unilaterally diminished his terms and conditions of employment and fundamentally breached the working relationship necessary between employer and employee. He said that it was not possible to go on working in the Company as he had been constructively dismissed.

  21.The Respondent submits that the Company it bought was a “financial basket case” and required remedial action to protect the business and to maintain employment. It submits that it operates an extensive business in the motor trade and did no more than bring the terms and conditions of employment in this Company into line with those generally applying in the business. It submits that it consulted widely with all staff including the Complainant. It submits that the Complainant’s contract of employment required him to be “flexible” and that it relied on that provision to introduce the revised terms and conditions necessary to protect the business.

  22.It submits that the Complainant was absent for 62% of the total number of working days in 2013.

  23.It submits that the Complainant did not own the Company car and that it had a legal right to have it returned to the Garage. It submits that it wrote to him seeking to have it returned on a number of occasions and when he failed to do so it recovered the car.

  24.It submits that the Complainant was in possession of a Company mobile phone and that it had an entitlement to recover the phone. It submits that it offered him an alternative phone but that he declined to accept it.

  25.It submits that it commiserated with the Complainant when his father died and allowed him five days leave rather than the three that would normally be allowed.

  26.It submits that the Complainant resigned his position and that no dismissal took place.

  27.The Court finds that no element of the Complainant’s evidence was challenged by the Respondent.

  28.The Court further finds that the Respondent offered no evidence to rebut the evidence of the Complainant.

  29.In those circumstances the Complainant’s evidence is uncontested and uncontroverted.

  30.The Court found the Complainant honest and credible in his evidence and has no reason to discount any part of it.

  31.The Court, having considered the evidence before it and the submissions of both parties finds that the Respondent created a working environment for the Complainant that was intolerable and thereby constructively dismissed him within the meaning of the Act.

  32.The Court notes that the Complainant found alternative employment six months after his employment ended at an annual salary some €15,000 per annum less than that which he was paid by the Respondent.

  33.Taking all matters into account the Court awards the Complainant compensation in the sum of €23,000.

  Determination

  The Court determines that the Respondent unfairly dismissed the Complainant from his employment and orders it to pay him compensation in the sum of €23,000.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
5th July 2016______________________
JKDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.