Complainant

Respondent

Anonymised Parties

A Business Development Manager

Manufacturing Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00017066-001

25/01/2018

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

CA-00017647-001

26/02/2018

The Complainant contends that he was not given written new terms of employment which the Respondent wished to impose upon him and neither was he given a copy of his original contract.   He further contends that he was unfairly dismissed from his employment. The Respondent disputes that the Complainant was dismissed, and submits that there was a mutual parting of the ways between the parties.

The Complainant is a South African Afrikaaner who was employed by the Respondent to develop new business for the company’s agricultural produce, at home and abroad, in countries including South Africa, Vietnam and Sudan. He commenced employment on 2nd November 2016.   It is submitted that while at a Sales conference on 19th May 2017, he was presented with a contract of employment for his signature. The contract was taken away from him and despite requests he never received a copy. It is submitted that he did receive a Statement of Terms of Conditions of Employment by registered post on 14th February 2018. It is alleged that while this contract bore his signature and was dated 2 December 2016, he insists that it was a forgery and that the terms bore no resemblance to the contract he signed in controversial circumstances on 19th May 2017.

In late November 2017, the Complainant was called to a meeting by the Company M.D. and he was informed that from 1st December 2017 he would receive no basic salary – just a 12 per cent commission. He would be allowed to retain the company vehicle. The Complainant objected to this proposal.   Having made several requests for data and his contract, the Complainant made a protected disclosure to the Data Protection Commissioner on 31st January 2018 about the Company’s failure to provide him with his contract of employment and other data.   The disclosure was copied to the company. At 8.02 am the following morning 1st February 2018, the Complainant received a phone call from the Respondent’s M.D. informing him that he was being dismissed with immediate effect and the company vehicle would be confiscated soon thereafter.   On 5th February 2018, the company entered the curtilage of the Complainant’s home and removed the vehicle without his permission. It is argued that the Complainant was dismissed unfairly. There was no substantive justification and no procedures – fair or otherwise – were adhered to.

The Respondent denies that the Complainant was dismissed. He was employed on a temporary contract to do business for the company, largely in South Africa. It is contended that during a business update meeting in November 2017, the Complainant verbally resigned stating that he had other interests in South Africa he would pursue.

In relation to the contract of employment it is submitted that the Complainant was given his contract of employment to sign at a Sales Conference on 3rd December 2016 and a copy of that contract signed and witnessed was submitted.

CA-00017066-001 Terms of Employment (Information) Act 1994

The Complainant’s complaint is that he was told his terms of employment were changing and he received nothing in writing. He also states that he requested his employment contract but was not given a copy of it. He stated at the hearing that a copy of a written contract he received in February 2018 was a forgery.

The applicable law

Section 5 of the Act provides that changes in an employee’s written terms of employment shall be notified in writing as soon as may be after the change is made but not later than 1 month after the change takes effect. In this instant case, the Respondent employer proposed to change the Complainant’s terms and conditions but did not implement same.   The complaint therefore is not well founded. There was considerable conflict of evidence regarding the issue of the original contract of employment.   I accept the Complainant’s evidence that he was presented with a contract on 19th May 2017. I note that he did not receive a copy of same. Section 3 of the Act provides that an employer shall, not later than 2 months after the commencement of an employee’s employment with the employer “give or cause to be given to the employee a statement in writing”.   The statement shall be signed and dated by the employer. Based on the Complainant’s evidence I find that the Respondent did not comply with the Act. I find the Complainant’s complaint to be well founded, and I require the Respondent to pay to the Complainant the sum of €500 compensation.

CA-00017647-001 Unfair Dismissals Act 1977

There was considerable conflict of evidence regarding the ending of the Complainant’s employment.     The Respondent contends the Complainant and the company parted ways in November 2017 and that the Complainant was pursuing other interests. There was no resignation letter and the Complainant expressly stated that he did not resign his employment. I find that the employment relationship had some difficulties and the Respondent was likely frustrated at the slow progress made regarding registration in South Africa. I note the meeting held in November and I accept the Complainant’s evidence that he was advised then that he would be paid commission only.   I also accept the evidence that the Complainant was dismissed by phone on 1st February 2018.

I find that as the dismissal of the Complainant was carried out with no due process and no procedures that dismissal was unfair.

I uphold the Complainant’s complaint that he was unfairly dismissed. I find that compensation is the appropriate remedy in the circumstances where the employment relationship is irretrievably broken down.