Complainant

Respondent

Anonymised Parties

A retail sales agent

A TV channel distributor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015482-001

01/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00015482-002

01/11/2017

On August 29th 2016, the complainant joined the respondent company as a retail sales agent, based in a shopping centre in Dundalk. His annual salary was €20,020 plus commission on sales. He was absent due to illness from February 22nd 2017 and on September 6th, at a meeting with his area manager, he gave notice of his resignation. He confirmed this in an e mail on September 12th. His complaint is that he was pressurised into resigning and that his termination was a constructive dismissal. He also complains that when his employment was terminated, he did not receive the correct amount of holiday pay.

At the termination of his employment, the complainant was entitled to pay for five and a half days’ holidays that he had not taken, amounting to a value of €423.50 gross.   He said that he did not receive this payment in lieu of holidays.

Following his absence due to illness on February 22nd 2017, the complainant was entitled to five days’ sick pay, giving him an entitlement to his salary until the end of February. He was paid for the month of February. Due to the logistics of the payroll processing system, he was also paid for the month of March, although he was not at work, resulting in an overpayment of one month’s pay. The complainant’s contract of employment provides that the company is authorised “to deduct from your salary or other sums due to you any sums that you owe the Company, including overpayment of salary or accrued holiday pay….You authorise the Company to deduct from your salary or pay in lieu of notice all monies owed to you by the Company.”

A final payslip dated September 27th 2017 was submitted in evidence by the respondent.   It shows that the complainant was overpaid by €1,666.33, with the result that he owed this amount to the company at the date of his termination. As he was entitled to €423.50 gross, the amount he was due was less than the amount owed, and as a result, he did not receive any holiday pay.

On September 27th 2017, the day he received his final payslip, he phoned the company’s HR support team to enquire about the non-payment of his holiday pay and the reason was explained to him. Evidence of this phone call was submitted at the hearing in the form of an e mail response from a member of the HR team.

At the hearing, there was no dispute about the amount of holiday pay due, but simply about the fact that it was not paid. The entitlement to deduct money owed to the employer from an employee’s final salary is standard practice, provided that the employee has agreed to such a deduction in their contract of employment. This complainant agreed to permit his employer to deduct from his final salary any monies owned, and for this reason, the non-payment of the amount due in holiday pay is not an illegal deduction and is not a breach of the Organisation of Working Time Act.

I have decided that this complaint under the Organisation of Working Time Act 1997 is not upheld.

Background

It is important to record the fact that the complainant was absent from work due to illness from February 2017, and he remains unable to work. He has a variety of health problems including Chron’s disease, diplopia (double vision) and a neurological complaint for which he is attending consultants in Beaumont Hospital and St James’ Hospital. He said that he is now in receipt of a disability allowance from the Department of Social Protection. This is paid to people who suffer from an injury or disability who will be unable to work for a year or more. He said that his consultant has said that he will not be able to work for the foreseeable future.

At the hearing, the complainant was alone and unrepresented, although he said that he got advice from his local Citizens Information Centre. He did not have a written submission he said that he expected that the hearing would be “just a chat.” I explained that as he had submitted a complaint of constructive dismissal, the responsibility, or the burden of proof was on him, to show that his employer had behaved in a manner which left him with no alternative but to resign.   He said that he understood this requirement and he made his case first.

Complaint of Constructive Dismissal

The complaint set out in the “e complaint” form is cut from an e mail that the complainant sent to the HR support team on September 27th 2017. It is an angry and rambling account of his feelings about his experience of working with the respondent company. At the hearing, he added very little else to the information in his complaint form, which can be summarised as follows:

When he took time off to go to medical appointments, he said that his manager phoned him about work-related issues.

He said that he was in hospital for seven days due to harassment by his manager and when he was in hospital, his manager called him telling him to resign.

In August 2017, the complainant applied to the Department of Social Protection for a disability allowance. On September 4th, he requested a meeting with is manager and on September 6th, he told him that he was resigning. At the hearing, the complainant said that he wrote a letter of resignation and brought it with him, although his manager said that he didn’t give him a letter of resignation and the complainant didn’t have a copy to submit as evidence. He also brought a final medical cert to the meeting which stated that he was unfit for work from September 1st until October 1st.

On September 12th, the complainant sent the following e mail to his manager:

“Hi (name of manager). Further to our meeting today. I regrettably have to hand in my notice to cease employment with (name of respondent). I have been on the sick for a number of months due to uncontrollable circumstances.   I have given the current sick note to you on (sic) our meeting and will be ok to accept your offer of immediate cease to employment from today. Sorry it has come down this way. Kind regards…”

Although the e mail was sent on September 12th, the meeting referred to took place on September 6th. The complainant received his final payslip on September 27th and this showed a debt owing to the company of €649.23. On the same day, he sent an e mail to the HR team about the non-payment of holiday money and on October 2nd, he submitted a complaint to the HR team about a constructive dismissal and also about the non-payment of holiday pay.

In the e mail of September 27th, the complainant said that he was told in “an extremely threatening way” by his line manager that he would receive his holiday pay once he resigned. He said that thinks that his manager just said this to make him resign, and in the end, he didn’t get any payment.

A meeting was arranged to explore this grievance on October 11th 2017, with the HR Director and the complainant. The complainant was not represented and the HR Director was accompanied by another manager who took notes. The notes were sent to the complainant and he was asked to make any additions or amendments. In a replying e mail he stated that “the notes have been re-worded to what we have spoken about during our meeting and that is to favour the company in this process of the grievance and also in fact I have been forced to seek legal representation from constructive dismissal.” A Word version of the notes of the meeting was sent to the complainant by the note-taker and he was asked to make any amendments or additions, but he did not do so.

On October 13th, the HR Director met the complainant’s line manager to get his side of the story about the complainant’s resignation. As the complainant did not reply to the request to submit his version of the minutes of the meeting of October 11th, the grievance process was left in abeyance and no conclusion was reached.

Chronology of Events

Having commenced work with the respondent in August 2016, in December, the complainant raised a concern about a colleague taking credit for his sales. This was resolved by the Area Manager, who is the same manager against whom the complainant raised a grievance about his resignation.

On February 10th 2017, shortly before the end of his six months’ probation, the Area Manager informed the complainant that his performance had not been satisfactory and his probation may be extended. The complainant had booked holidays the previous week, but he told his manager that he had been in hospital for tests and that he returned to work against the advice of his doctor. His manager informed him that he could not be at work unless his doctor had certified him as fit to return. Following a telephone conversation on February 14th and an e mail on March 8th, the complainant submitted a medical cert effective from February 15th 2017, with no end date. He then submitted certs stating that he was unfit for work from July 1st until the 29th and from August 1st until the 31st. The certs indicated that the complainant suffered from a variety of ailments, none of which were related to his job.

In the e mail on March 8th 2017, the Area Manager told the complainant that any decision regarding his probation would be postponed until he returned to work.   The next communication from the complainant was on September 4th, when he phoned his manager to tell him that he intended handing in his notice. They met on September 6th in a coffee shop in Dundalk and the complainant handed over his work iPad and said that his consultant advised him that he would not be able to work because of his medical condition.

Although, at the hearing, the complainant said that he brought a letter of resignation with him to the meeting on September 6th, the Area Manager said that no letter was handed over. This is the reason he sent an e mail to the complainant the same evening requesting confirmation of the notice of resignation:

“Hi (name of complainant), it was great to catch up with you today in Dundalk. And it’s a shame that you must hand in your resignation on your consultant’s advice.   As I said when I met you, I need you to e mail your wish to confirm this. If you could send me on your resignation e mail, that would be great.   Thanks.”

Following a text message reminder on September 7th, the complainant sent a mail confirming his resignation to the Area Manager on September 12th and this mail has been set out in the previous section under “Summary of the Complainant’s Position.” The leaver process to end the complainant’s employment was then initiated and he received a final payslip on September 27th, showing a debt owed to the company. On the same day, he submitted a complaint about his treatment by the company and this complaint is repeated in his submission to the WRC.

A meeting took place on October 11th in Dundalk, and this has also been referred to in the previous section. The complainant disagreed with the notes of the meeting, but did not respond to the opportunity to amend the. He submitted his complaint to the WRC on November 1st.

Response to the Complaint of Constructive Dismissal

As part of his grievance, the complainant said that his manager phoned him about work-related issues when he took time off to attend medical appointments. The respondent said that, before the meeting on February 10th, the Area Manager was not aware that the complainant was going for medical appointments and it appears that he scheduled himself for time off for these appointments. He also claims that he was harassed about work-related issues and that this resulted in him being hospitalised in February 2017. At the hearing, the complainant said that he was in hospital for a bone marrow test.

In his submission to the WRC, the complainant said that his manager told him in “an extremely threatening way” that he would receive his holiday pay once he resigned. He alleges that, in this way, he was forced to resign. The meeting at which this discussion took place was in a coffee shop, with other customers in earshot. The manager said that the complainant rang him on September 4th to ask for a meeting as he was going to hand in his notice. The initiative for the meeting came from the complainant himself, who brought his iPad with him to hand it back to his manager because on his doctor’s advice, he did not intend to continue in employment.

Referring to the definition of constructive dismissal as set out at section 1 of the Unfair Dismissals Act, Ms Sherlock, for the respondent, said that, at no time, during his employment, or at the time of his resignation, did the complainant indicate that the actions of his employer were such that he considered himself to be constructively dismissed. E mails were presented in evidence which showed that the relationship between the complainant and his manager was positive and cordial, with the complainant expressing gratitude for his line manager’s understanding about his personal circumstances, which were not related to his employment, but which may have impacted on his ability to do his job. For the duration of his employment, when he was at work between August 2016 and February 2017, the complainant never lodged a grievance with regard to his line manager’s attitude towards him, and only did so on September 27th 2017, three weeks after he resigned, when he discovered that he was not getting holiday pay.

Constructive Dismissal

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract without giving prior notice of the termination to the employer…”

The issue for decision in this case is, taking into consideration the conduct of the respondent in relation to this former employee, can I accept as credible his allegation that he was forced to resign?

Findings

From the evidence presented at the hearing, it is clear that the initiative for resigning came from the complainant when, on September 4th, he phoned his manager to hand in his notice. At the hearing, when I asked him what purpose he had in mind when he asked his manager to meet him, he said that he wanted to “let him know how he was.” This explanation doesn’t stand up, as he could have let him know by e mail or in a telephone conversation. He brought his work iPad to the meeting with him and he told his manager that his neurological specialist advised him that he “couldn’t go back to work.” He said that he brought a letter of resignation “in case I needed it.” On this basis, it seems to me that he intended to resign and his contention that he was forced to resign is baseless.

Although he was employed by the respondent for more than one year, the complainant was at work for six months and then absent due to illness for six months. When he was at work, it is evident that he had a good relationship with his Area Manager, in whom he confided about some personal problems. While he was at work and when he was out sick, he never raised a grievance about how his Area Manager treated him. Having submitted a grievance to the respondent’s HR Department on September 27th 2017, he failed to follow through with the process.   Taking all these facts into account, I find that there is no substance to the complaint submitted to the HR Department three weeks after the complainant resigned. As this is the same complaint submitted verbatim to the WRC on November 11th 2017, it follows that there is no substance to his complaint of constructive dismissal.

Conclusion

The complainant in this case resigned because of ill health. Sadly, he remains unemployed and unable to work and he is in receipt of disability benefits. It seems to me that his complaint of constructive dismissal was motivated by the fact that he did not receive holiday pay at the termination of his employment. Making a complaint of constructive dismissal is a serious matter, and may have a profound impact on the people alleged to have contributed to an employee’s decision to resign. In this case, I find that there was absolutely no evidence that the complainant’s relationship with his manager was other than supportive and his submission of a complaint to the WRC was a waste of the resources of his former employer, and ultimately, a waste of the resources of the WRC.

I have decided that this complaint under the Unfair Dismissals Act is not well founded and does not succeed.

Constructive dismissal