Complainant

Respondent

Anonymised Parties

An Employee

A Company

Representatives

 Solicitors

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-00008344-001

23/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008344-002

23/11/2016

The HR manager started with the respondent in December 2015. He is a retired Superintendent. He has a post graduate Masters in Human Resources and level 9 Dispute Resolution qualification. He knew the owner and his family for years. The HR manager knew the complainant from the previous respondent venue. He regularly attended at that venue with his family. He was not employed as security for the respondent. He strongly refuted that complainant’s evidence that he had control over the gardai and could arrange to have people pulled over etc.

Prior to commencing his employment with the respondent, he was contracted to facilitated a manager’s seminar. The purpose of the meeting was to have an open discussion about what was right and wrong within the respondent entity. The complainant was at that meeting. He participated well and had some good ideas. Following that meeting the HR manager was employed by the respondent.

Shortly after he started he was informed that there was an issue in the venue where the complainant worked. Staff were not getting on. He decided to have a chat with the complainant and one other. They sat downstairs one evening at around 5pm and they discussed all the issues. Following that meeting he felt that they had moved towards a resolution of the issues. It was agreed that they would all work more closely together and to liaise with Head Office. That was the only meeting the complainant had with the HR manager. He did not get an opportunity to look at the complainant’s contract of employment prior to him leaving. He did not take notes at this meeting.

After the complainant left his employment he mentioned a few things that were ‘whistling blowing’ in nature. The HR manager called him to discuss these issues. He didn’t really understand what he was saying. He asked if they could meet. They never got to meet. They spoke again on the phone. The complainant told him that he was bringing a High Court case and that it was worth €80,000.00. He did not take notes of this meeting.

Later the respondent received a solicitors letter. There was no communication with the complainant after that.

The Complainant was employed as a floor manager (daytime) with the respondent form the 10th October, 2014 to the 2nd June, 2016. He was paid a gross weekly wage of € 1,057.65 based on a 40 hours a week. The complainant’s salary was agreed at €42,000.00 per annum. Prior to this period of employment the complainant had worked for the respondent on and off for a period of 10 years.

On or about the 14.10.2015, a Manager offered the complainant a new role within the respondent company. The complainant was to begin the new role immediately in a venue in Swords, as a day time manager. Prior to accepting the role, the complainant stated that he would require a salary of €65,000.00 per annum. It was agreed that his salary was to be increased to €55,000.00 plus a weekly expenses cash payment of €100.00.

The new terms and conditions were agreed verbally between the complainant and the manager. It was never reduced to writing. His salary was paid into his bank account and there were no issues with that. He did not receive the cash payment with any regularity.

The complainant found that the business in Swords was in a terrible state. Meetings with management were had on an ad hoc basis. In December, 2015 there was a formal meeting at Head Office. At that meeting the Director, Operation Manager and Marketing manager were present. The complainant set out details of the pressure he was under and the pressure of the work load. The complaints were not listened to. He was criticised for his running of the business. At that meeting, he raised issues in relation to the business accounts. He stated that the accounts were not accurate. He noticed that the respondent was putting in the wrong value for items purchased. If an item costs € 20.00 it would be logged in the profit and loss accounts as €40.00. The business was not making a loss but the accounts indicated that it was. The complaint outlined his concern in relation to the rebate situation. The rebates were not reflected in the profit and loss accounts either. When he tried to discuss this at the meeting the Operations Manager got very angry and stated “ how dare you bring that up, there are no rebates”. He then proceeded to belittle the complainant. After that meeting the complainant noticed a dramatic change in attitude towards him. He intercepted and e-mail which stated that he was not be CC’ed on any e-mails going forward. He was asked to return the keys of the safe and was excluded from management meetings. He felt isolated and felt that he was being pushed out.

On the 18.12.2016 he was asked to attend a meeting. The Director, Operations Manager and Marketing Manager were present at the meeting however he was excluded from the January meeting. At the December meeting they discussed a personal injury action arising out of an incident in the pub. They said that they would offer him € 500 and would get a retired Superintendent who did security for the pub to ‘have him pulled over’. He felt that the reason his was asked to attend the meeting was so it could be made known to him that they had the power to manipulate members of An Garda Síochana and that if he didn’t comply, he would be next.

After the meeting on the 18th the complainant spoke to his manager about the cash payments. When he asked why he wasn’t receiving it he was told “you are not getting it, you are paid too much”. Later in December he received €900 for a false expense’s claim.

The complainant never raised a grievance in relation to his issues as he felt that there was nobody to talk to. He did know that the respondent had employed an external consultant however he felt that he would not be sympathetic towards him because he was being paid by the respondent.

In January, he noticed that all his calls were being ignored. Then a new manager was employed. The complainant was told that he was the new General Manager. The new General Manager then started to micromanage the complainant. On the 20.01.2016 the complainant was informed that he was under- performing and his salary was being cut to €44,000.00. He objected to this unilateral change, in his contractual terms. He notified the respondent of that by e-mail on the 04.02.2016. He was told that he had failed his probationary period and it was decided to reduce his salary and his level of responsibility. He e-mailed the respondent again on the 10.02.2016 asking was there any update on why his wages were being reduced. He then asked who had authorised it. The complainant did not know or understand why he would have been put on a probationary period as he had been with the respondent for years.

When he spoke to the owner about the issue the owner asked him “are you alright in the head”. He was very upset by this comment. He was so upset that he made an appointment to see his doctor. He attended with this doctor on the 16.02.2016. Following a long consultant with this doctor she certified him unfit for work. He did go into work the next day but after a few hours it all became too much for him and he left. The respondent does not have a sick pay scheme so he had to go on social welfare. He started on a course of counselling. It was a very difficult time for him. His wife was on maternity leave, they had a new baby and he wasn’t earning any money. It caused an enormous strain on his marriage. His wife too had to have counselling.

He got a call one day from the respondent asking him if he would be available to have a meeting. He told the respondent that he felt unsafe. He felt threatened by the respondent. After ten weeks, financially he was in a bad way and he had to go back to work. However, he couldn’t cope so he resigned on the 2nd June, 2016.

The complainant started working in a different venue in Dublin on the 14.06.2016. He was getting on very well there. Then in November, the respondent came into the venue, and the following day he was fired. He has no doubt that the respondent was the author of his demise.

He has been on social welfare since the 21.12.2016. He is now doing a course with a view to setting up his own business.

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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 the 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 of employment without giving prior notice of the termination to the employer”

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the claimant. He must show that his 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, all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate her contract of employment.

The complainant makes the case that after voicing his concerns in relation to accounting irregularities the respondents attitude towards him changed. Prior to airing his concerns, it seems from both his and the respondent’s evidence, that he was highly regarded by the respondent. That was the reason he was asked to move to the Swords venue and was given a promotion. During his alleged probationary period in the new role, the respondent did not highlight any of the concerns it now says it was having with his performance. It wasn’t until the accounting irregularities issue that things started to go wrong for the complainant. I am satisfied that there is a nexus between the change in the respondent’s attitude towards the complainant and the voicing of his concerns.

I also note that prior to the complainant’s promotion he was on a salary of € 42,000 per annum.   Following promotion his salary increased to a basic of €55,000.00 He was promoted on the 14.10.2015. On the 20th January, 2016 he was told he was underperforming and his salary was being cut to € 44,000. The complainant was only 3months into the new role at that juncture. He was not given any specific details as to why the respondent felt he was underperforming. He was not given a PIP or any other type of guidance in relation to improvement. Immediately prior to the complainant’s ‘review’ a new general manager was employed. That leads me to conclude that the decision to demote the complainant had been made prior to his “so called” performance review. His salary was cut with immediate effect. I find that there was a nexus between the account irregularity issue and the decision to demote the complainant. Furthermore, in the absence of any reasons or contractual clause giving the respondent jurisdiction to demote the complainant the way they did and to cut his salary, I find that the respondent breached the complainant’s contract of employment. That breach when to the root of his contract.

The complainant’s claim ADJ 6137 – CA 8344 -001 succeeds. The complainant has an obligation to mitigate his loss. The complainant resigned his position on the 02.06.2016. He commenced employment on the 14.06.2016. However, that employment ended in December of that year. There is no evidence, other than the complainant’s belief, that his employment with the new entity was terminated following an interference by the respondent. In the absence of any substantial evidence it would be unsafe to rely solely on the complainant’s personal belief and/or assumption.

In all of the circumstances I award the complainant € 15,000.00

For the reasons set out above, I find that the complainant’s claim ADJ 6137 CA – 002   succeeds but only in relation to the deduction in his wages properly payable from 20.01.2016 to the 02.06.2016. The € 10,000 the complainant was to be paid in cash under the guise of expenses are not wages properly payable within the meaning of the Act.

I award the complainant € 10,500.00 pursuant to Section 6 of the ’91 Act.