ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005841
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00007995-001 | 04/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00007995-002 | 04/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 |
CA-00007995-003 | 04/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00008430-001 | 25/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 |
CA-00008430-002 | 25/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00008430-003 | 25/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00008430-004 | 25/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00008430-005 | 25/11/2016 |
Date of Adjudication Hearing: 22/05/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Location of Hearing: Ashdown Park Hotel
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act, 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
The Complainant herein has referred the following matters for dispute resolution:
Section 8 of the Unfair Dismissals Acts, 1977
Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003
section 7 of the Terms of Employment (Information) Act, 1994
Section 11 of the Minimum Notice & Terms of Employment Act, 1973
section 6 of the Payment of Wages Act, 1991
and the referral save for a portion of the Section 6 Payment of Wages Claim has been made within six months of the initial circumstances of the relevant dispute/contravention.
The Complainant withdrew CA 7995 -001 and OO3 and CA 8430 -003
The complainant commenced her employment with the respondent on the 5th June, 2015. It was agreed between her and the Managing Director ( MD) that she would be put on probation for a period of 2 to 3 months. Whilst on probation she would receive 20% commission (no basic until after trial) plus expenses, travel , lunch parking. She was very good at her job and was confident that she would be offered a permanent contract. It was agreed that she would be paid monthly.
In July, 2015 the MD, during a meeting, told he that she was not going to be paid expenses because his accountant told him that she was not entitled to it as her work was within a 30 mile radius of head office. She got angry and stated that she couldn’t survive on commission as it wasn’t even covering her expenses. She stated that she needed a basic salary together with commission and expenses if she was to continue working for him. She is owed the following in relation to her expenses incurred during the probationary period.
05 – 12 June, 2015 Expenses €275.05 (diesel €215.05, lunch €60.00)
15- 19 June, 2015 Expenses €215.51 (diesel €175.51, lunch €40)
19 – 26 June 2015 Expenses €141.60 (diesel €111.69, lunch €30)
26 June, 3rd July Expense €149.64 ( diesel €93.74, lunch €40 parking €15.90)
3- 10 July Expenses €171.83 ( diesel €128.83, Lunch €40 parking €3)
Following the meeting on the 17th July, the MD agreed to give her a formal contract. The MD tried to persuade her to claim job seekers allowance for 2.5 days per week and said that he would pay her the other half. She was working a full week and she refused to do that. He then reluctantly said he would pay her the € 250.00. She went and got her pps no. etc and she sent her bank details onto him so he could give them to his accountant. Like previously, she was to be paid monthly.
She was paid September, October and November as per their agreement. She repeatedly asked him for a formal contract of employment. None was forthcoming. The respondent did submit a contract of employment to the WRC however, the complainant states that she never saw this contract before it was submitted to the WRC. Furthermore, that contract is neither signed nor dated. The e-mail onto which the contract was attached states that it was sent on Thursday 4th March, 2016. However, the 4th of March was a Friday.
The complainant started working on the agreed terms from the 11th August, 2016. In December she was informed by a member of staff, whilst discussing a Christmas party ,that they all had time off in December because there was no publication in January. She asked the MD about that. He said there was no publication in January therefore there would be no pay for December. She didn’t agree with that but at the time she had to put up with it. Her account went overdrawn over Christmas. She asked the MD he would pay her the commission even though some of the clients hadn’t paid him yet. He said he would but he only paid her € 382.20 and not the € 637.50 she was due. She had to borrow money from my partner.
There was a constant battle trying to get paid. He refused to give her a list of my clients who had paid him. He refused to liaise with her at all. On one occasion he did give her a list of clients who had paid but that was in September, 2016. Up until that she had to try and guess who had paid him and who hadn’t. On a few occasions she called the clients and they told her that they had paid the MD. He told her they hadn’t and refused to pay her the commissioner due on those sales.
In September she went to an agency to try and find other work but there was nothing available. She felt she had no choice but to stay on as she couldn’t find alternative work.
She did like her job and she had a good relationship with her clients. In early 2016 the MD started to put more and more pressure on her to get more sales. She said she needed to know the magazine’s monthly content so that she could go after particular clients relevant to that month’s publication. In order to do that she needed to know a month in advance what clients she needed to go to. This was annoying the editor. That system did work and it did make her job easier.
In or around January, February, 2016 the MD started to exclude her from meetings and isolated her. She now thinks he was trying to keep her and the editor apart because the editor had issues with her. She, the editor, got very angry with her on a few occasions. The MD told her that the editor was going to leave but that he had persuaded her to stay however he was going to have to reduce the complainant’s salary by half. She thought he was joking.
In April, 2016 she had a sales meeting . The MD said “ your sales are not as high as previous months so I am going to have to half your salary”. He said he warned her about this in February. The complainant stated she couldn’t work for € 125.00. She asked if her salary could be returned to normal if she increased her sales. He said he would if the sales increased over a three month period. She felt trapped. She needed to work, she needed the money but she wanted to leave. Reluctantly, she worked for the basic salary of € 125.00 per week. However, after the three months the MD refused to return it to the € 250.00. That was due to return to € 250.00 in September. It didn’t. At that point she felt he was taking complete advantage of her.
In September, 2016 whilst she was on holiday, she got an e-mail, which was sent to her by mistake. It stated that the distribution figure for the magazine was 3,500. The MD had told her it was 12,000 and she had been selling advertising on that basis. She felt she had been selling advertising on false pretences. She felt bad about that and felt that if her clients ever found out it would adversely affect her reputation.
She had a meeting in October, 2016 with the MD. She told him that she wasn’t happy. She hadn’t received a payslip and the payment was very short. Only € 700.00 went into her account. That was the straw that broke the camel’s back. He said, he was sick of her moaning about money when she should be out increasing sale. He said he had enough and walked out. Then about one hour later she got an e-mail saying “thank you for your resignation” .She hadn’t resigned. She wanted to but she actually hadn’t. She said she wouldn’t have resigned as he owed her money. Then he sent her, her p45. She thinks he was hoping she would just go away.
The complainant submitted a spreadsheet together with her bank statements. In summary she is owed € 8,512.41. No evidence was adduced to show how those figures were calculated. No bank statements where produced to show what the complainant had in fact been paid.
She was paid bank holidays and holiday pay.
The complainant set up her own business in October 2016. She is selling advertising. The complainant gave an undertaking to furnish a statement of her earnings to date but she failed to do so. She stated that she herself has not taken a salary from the new business yet.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 7 of the Unfair Dismissals Acts, 1977 – 2015, Section 14 Protection of Employees ( Fixed- Terms Work) act, 2003, Section 7 Terms of Employment ( Information )act, 1994, Section 24 National Minimum Wages Act, 2000, Section 11 Minimum Notice Terms of Employment Act, 1973 and Section 6 Payment of Wages, 1991, requires that I make a decision in relation to the matter.
The complainant withdrew CA 7995 -001 and 003 and CA 8430 – 003.
CA 7992/002 Unfair Dimissal.
Unfair Dismissal Act, 1977
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
The complainant seemed undecided as to whether this matter was one of Unfair Dismissal or Constructive Dismissal. If the matter is one of Unfair Dismissal then the burden of proof lies with the respondent to show that the Dismissal was fair in the prevailing circumstances.
However, if the claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977, The burden of proof, which is a very high one, lies on the claimant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.
“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”
If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test
“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”
When assessing the reasonableness test I must consider all of the circumstances of the case, to establish whether or not it was reasonable for the complainant to terminate her contract of employment.
The respondent did not appear at the hearing instead, it would seem, was hoping to rely on the documentation submitted to the WRC prior to the hearing. The letter submitted stated:
“ On the 9th May, 2016 X tendered her resignation but withdrew this on the 11th May. On the 12th October, 2016 she announced her resignation was with immediate effect and she did not provide any notice to the company”
The complainant stated in her claim form that she was forced to terminate her contract of employment, “I had to leave my job due to the conduct of my employer”. Again, at the start of the hearing she stated that due to the behaviour of the respondent she was forced to leave her employment. However, towards the latter part of her evidence she stated that the respondent sent her an e-mail following a meeting that he stormed out of stating “ I accept your resignation”. Based on the majority of the complainant’s evidence, her claim form and the respondent’s submissions to the WRC, I find that the complainant did resign from her position due to the conduct of her employer and therefore I must treat this matter as one of constructive dismissal.
The complainant stated in evidence that she had a constant battle with the respondent in relation to money. She did keep a diary of when and where she worked together with all ancillary details. From the documentation submitted it would seem that following the complainant’s probationary period she was paid € 250.00 per week. In April, 2016 that agreement to pay € 250.00 per week was unilaterally changed by the respondent to € 125.00 per week allegedly because of poor sale results. The complainant was most unhappy about the change but she didn’t raise a grievance about it or file a complainant pursuant to Section 6 payment of wages act until 4th November, 2016. She stated that she needed the money as she had bills to pay and she knew she wouldn’t get employment in the area at the time. I note from the two payslips submitted by the respondent that the complainant was paid a salary of € 950.00 in March, 2016, before the unilateral change and € 475.00 in June 2016 after the unilateral change. The two payslips do corroborate the complainant’s evidence. The complainant worked 40 hours per week for a basic salary of € 125.00 which amounts to € 3.12 per hour. The contract submitted to the WRC which is neither signed nor dated and only one page of it was submitted. At clause 3 of the contract it does state that the complainant’s salary was subject to review every 6 months. However, as the contract itself is in issue and the respondent was not present to give evidence in relation to it, I will rely on the complainant’s evidence. I find that the respondent did unilaterally change the terms of the complainant’s contract and in doing so expected her to work less than minimum wage. That was a breach of the complainant’s contract going to the root of the contract and therefore I find that the complainant has satisfied the first part of the test set out in Western Excavating ECC Limited –v- Sharp,
Furthermore, I find the complainant evidence that she had difficulty getting paid her commission credible. The respondent did submit one e-mail where in he sets out details of clients who had paid him. I would have expected to see a monthly list of payments together with a list of commission actually paid to the complainant. No such list was submitted. If there is an agreement to pay an employee commission based on their sale results then that agreement must be honoured in a timely fashion. It is not acceptable to withhold payments for lengthy periods of time, nor is it acceptable to expect the employee to chase her employer for the payment. It should be paid monthly in a transparent fashion. Even if the complainant failed to satisfy the “contract test”, which she did not, I also find it was reasonable in the circumstances as presented to me for her to terminate her contract of employment.
The complainant failed in her obligation to provide details in relation to her efforts to mitigate her loss.
In all of the circumstances, I award the complainant the sum of € 3,000.00 in relation to claim ADJ 5841 CA 7995-002.
*******************************
CA 8430 – 001 Terms and Conditions of Employment.
(a) the full names of the employer and the employee,
(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),
(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,
(d) the title of the job or nature of the work for which the employee is employed,
(e) the date of commencement of the employee's contract of employment,
(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,
(g) the rate or method of calculation of the employee's remuneration,
(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,
(i) any terms or conditions relating to hours of work (including overtime),
(j) any terms or conditions relating to paid leave (other than paid sick leave),
(k) any terms or conditions relating to—
(i) incapacity for work due to sickness or injury and paid sick leave, and
(ii) pensions and pension schemes,
(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,
(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.
The complainant stated in evidence that she did not receive her terms and conditions of employment despite requesting them on several occasions. The respondent did submit one page of a contract to the WRC but that page was not signed or dated. In circumstances were the existence of the contract is in issue and the respondent was not present to clarify the issues I prefer the complainant’s evidence and find that on the balance of probabilities that she did not receive her contract in the manner alleged by the respondent or at all.
I find in favour of the complainant and in relation to claim CA 8430-001 I make an award of € 1,000.00
***************************************
CA 8430 – 002 Pay.
National Minimum Wage Act, 2000.
(2) A dispute cannot be referred to or dealt with by a rights commissioner—
(a) unless the employee—
(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or
(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,
and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,
or
(b) where, in respect of the same alleged under-payment, the employer is or has been—
(i) the subject of investigation by an inspector under section 33 or 34 , or
(ii) prosecuted for an offence under section 35 .
The complainant has not provided a statement obtained pursuant to Section 23 nor was any evidence adduced that she requested such a statement and same was refused by her employer. Under those circumstances I do not have jurisdiction to hear this part of the complainant’s complaint.
The complaint CA 8430-002 fails.
****************************************
CA 8430 – 004 Minimum Notice.
(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be-
(a) if the employee has been in the continuous service of his employer for less than two years, one week,
(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,
(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,
(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,
(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.
The complainant resigned from her employment with immediate effect on the 12th October, 2016. She gave no notice to the respondent and there was nothing in her evidence to suggest that she offered to work out her notice or at the very least make herself available for work. In those circumstances the complainant is not entitled to an award pursuant to Section 4
The complainant’s complaint CA 8430 – 004 fails.
*************************************
CA 8430 -005 Pay
Payment of Wages Act, 1991.
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) in the case of a deduction, the employee has given his prior consent in writing to it.
Wages are defined by Section 2 of the Act as follows:
“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—
(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and
(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:
Provided however that the following payments shall not be regarded as wages for the purposes of this definition:
(i) any payment in respect of expenses incurred by the employee in carrying out his employment,
It was agreed between the complainant and the respondent that she would be paid a basic salary of € 250.00 per week together with 20 % Commission. The complainant was paid her basic salary of € 250.00 up until mid - April, 2016. Thereafter, that amount was unilaterally changed to € 125.00. As is stated earlier in this decision the respondent, in absentia, sought to rely on one page of contract he submitted to the WRC. I accept the complainant’s evidence that prior to her lodging the claims she had never seen this contact. I must therefore conclude that the unilateral changing of the basic salary from € 250.00 to € 125.00 weekly was in breach of Section 5 of the Act.
The complainant lodged her claim with the WRC on the 04.11.2016. No submissions were made which could allow me extended the time limit beyond the six months. Therefore, I am restricted to a claim from 04.05.2106 to 12.10.2016 which said period amounts to 22 weeks.
The complainant is not entitled to claim expenses as expenses are specifically excluded under the Act.
I award the complainant the sum of € 5,500.00 in relation to claim CA 8430-005
Dated: 07/06/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Key Words: