ADJ-00007011

Complainant

Respondent

Parties

A Worker

A Company  

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-00009542-001

06/02/2017

The complainant commenced his employment with the   respondent in November, 2015. He was employed to sell furniture and carpets.   His salary was agreed at €40,000 per annum together with 2% commission on   sales. After a few months the respondent owner director came to him and said   that his salary was being reduced to €35,000 per annum due to the number of   errors he was making. He could only recall one error and that was the   customers fault. That issue was easily rectified. The complainant agreed to   the reduction. A few months after that he was headhunted by another firm.   They offered him €40,000 plus commission per annum. He told the owner   director about the offer and asked if the respondent could match it. The   respondent stated that on the basis that they were anxious to keep him, they   would match it. In December he received another offer from the same company   as before. This time the offer was €50,000 plus commission per annum. The   respondent stated that they would match that offer but asked that he wait   until February for the increase. On   the 28^th January 2017 he was dismissed out of the blue.

He started with the aforementioned third party company a   few days later. However, the offer was reduced to €35,000 by the time he got   back to them. He is paid €700.00 gross per week plus 1.5% commission on the   shops turnover. The turnover is   approximately €100,000.00 per month.    

The respondent agrees with the complainant’s evidence up   until December, 2016. The complainant   did come to the respondent in December and stated that another firm had   offered him €50,000.00 plus commission. The owner/director said that he would   have to talk to the other directors and would have to review the accounts at   the end of January. When the accounts   were finalised at the end of January it was apparent that they could not   afford to pay the complainant €50,000.00 per annum. The owner/ director told him that the   respondent couldn’t match to €50,0000 offer. The complainant then told him he   would be leaving to go and work with the other company. He asked him for a   letter of dismissal. The respondent thought he had to give him a letter so he   drafted one himself and gave it to him.   The owner/director was very clear in his evidence that the complainant   was not dismissed, he left his   employment to go and work for the other company.

The complainant never produced documentary evidence in   relation to the offers from the other company.

The complainant has no loss.

I am asked to decide two issues. Firstly whether the   complainant resigned his position or was dismissed from it and secondly, if   the complainant was dismissed, was the dismissal unfair.

The complainant approached the respondent twice in as many   months requesting that they meet the offers made by a third party company. He   did not produced documentation in relation to those offers. Despite the lack   of documentary evidence, the respondent took him at his word. They matched   the first offer. The complainant approached them again in December stating   that the third party company had increased the original offer by €10,000.   Again, he had no documentary evidence in relation to the offer. He stated   that the respondent agreed to pay him € 50,000 commencing on the 1^st   February and then, without warning fired him on the 28^th January.   The respondent stated they told the complainant they would have to assess   their accounts at the end of January and wouldn’t be in a position to make a   decision on the issue until then. Once they informed the complainant that   they would not be in a financial position to increase his salary he said he   was leaving for the other company. He did leave and started with them a few   days later.

I prefer the respondent’s evidence. On the balance of probabilities   I find that the complainant resigned his position in order to go and work for   a competitor on a higher salary than that with the respondent. It wasn’t until   the left the respondent that he realised that the third party offer had been   reduced.

Having carefully considered the evidence of the parties I   find that the complainant resigned his position with the respondent and   accordingly his claim pursuant to Section 8 Unfair Dismissal Acts, 1977   fails.