ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00010555

Parties:

	Complainant	Respondent
Anonymised Parties	A Business Development Manager	A Contact Cleaning and Facilities Company

Complaint(s):

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-00013960-003	13/09/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00013960-004	13/09/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00013960-005	13/09/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00013960-006	13/09/2017

Date of Adjudication Hearing: 06/02/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act,Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 27 of the Organisation of Working Time Act, 1997 and Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The dispute concerns a Sales Manager, developing a Pest/Rodent control business for an established Contract Cleaning Company. The employment relationship ended and a claim of Constructive Dismissal was lodged.

1: Summary of Complainant’s Case:


Act	Complaint/Dispute Reference No.	Summary Complaint
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00013960-003	A Zero Hours complaint. Complainant was not paid for 25% of the time he was required to be available.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00013960-004	The Complainant was not paid for outstanding Annual Leave hours when he finished his employment.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00013960-005	The Complainant did not receive a written contract of employment.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00013960-006	Full details below.

1:2 CA-00013960-006 The Unfair Dismissals Act complaint –

The Complainant resigned his employment by E Mail/letter of the 15th March 2017. This E mail followed a telephone conversation he had had with the Respondent Main Director Mr. Y on the morning of the 14th March. This conversation was wide ranging but covered principally (1) the Use of the Company Van (2) Stock Control Issues (3) Complainant working from Home (4) Criticisms of Quality of Work Done by the Complainant and (5) Cash Jobs and proper accounting for same. The tenor of the call was heated and strong language was used. The Complainant felt that his honesty and integrity were being questioned. The meeting with HR on the 29th March had been completely one sided and he had not been listened to with any seriousness.

It resulted in the Complainant feeling he had no option but to confirm his resignation and lodge a Constructive Dismissal complaint

2: Summary of Respondent’s Case:



Act	Complaint/Dispute Reference No.	Summary Response
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00013960-003 A Zero Hours complaint.	The Complainant was a full-time employee. A Zero Hours complaint is misplaced.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00013960-004 Outstanding Annual Leave for 2016 /2017.	On leaving his employment his 2017 Annual leave was discharged. Monies due for 2016 are acknowledged and will be paid.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00013960-005 Written Contract of Employment.	It was accepted that the Complainant did not receive his Written Contract until the 26th September 2014. A Technical Breach only as his employment had commenced on the 29th October 2013
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00013960-006	Full details below.

2:2 CA-00013960-006 The Unfair Dismissals Act complaint

Summary of Respondent Arguments /Oral and Written Evidence presented.

The Respondent pointed to the two main Legal Arguments in a Constructive Dismissal complaint namely (1) Fundamental Breach of Contract and (2) Unreasonable Behaviours. On both these headings the Respondent maintained that the Complainant had failed to reach the necessary legal standards to sustain a successful claim.

By way of background the Respondent pointed out that the Complainant had commenced employment in October 2013. No formal written agreement was ever entered at this stage regarding how Commission would be handled. This was the subject of discussions between the parties in Nov/Dec 2013 and a rough understanding was arrived at. In September 2014, the Complainant received a formal written Contract of Employment.

In April 2015, the Complainant notified the Respondent that he was considering an offer of alternative employment. The Respondent increased his salary by €5,200 per annum. Things continued as was, without complaint, for the remained of the year 2015 and all during 2016.

In March 2017, a valued customer raised service level complaints with the main Respondent Director. This lead to the disputed Phone call of the 14th March 2017. It was accepted that neither party were children and a robust call took place. The Respondent felt that he was perfectly within his rights to raise Managerial issue with Complainant but there was no suggestion of any termination of employment. The reaction of the Complainant in submitting a resignation was completely unwarranted. The Main Director concerned Mr. Y gave extensive oral evidence on the subject of this phone call.

A meeting between the Complainant and Ms. XQ of the Respondent HR Department took place on the 29th March 2017. Great detail was gone into and Ms. XQ issued a four-page letter to the Complainant following the meeting. The Respondent was not able to accede to the Complainant’s demands for a further €60 per week wage increase (to cover flexibility) and was not prepared to remove any tracking devices from the Company Van or to agree that the Complainant would not have to do his office work from the Company Offices. The Complainant had indicated that he had an alternative offer of employment and needed a fast answer from the Respondent.

The Complainant replied by e mail of the 3rd April indicated that he was “accepting the (alternative) job offer and ceasing employment in Respondent business with immediate effect.”

Considerable further exchanges of correspondence followed this exchange. This correspondence was concerned primarily with outstanding Commission payments and the alleged interactions (post the resignation) between the Complainant and Customers of the Respondent.

In summary, the Respondent maintained that the Complainant had resigned his employment. He had found alternative employment and chosen to move. His resignation was a considered decision and could not be described as a Constructive Dismissal.

3: Findings and Conclusions:

For convenience, I will begin with a consideration of CA-00013960-006 the Unfair Dismissals Act complaint – this was the major part of the overall case.

3:1 The Unfair Dismissal Act Complaint

Considerable written and oral witness evidence was presented in this case. It was necessary from an Adjudication point of view to constantly be clear to and remind the parties that the case was one of Constructive Dismissal.

3:2 General Background

It was clear that a lot of ambiguity existed between the parties in the early part of the employment relationship. However, this appeared to have settled down and post the improved salary offer of May 2015 matters appeared to have progressed quite smoothly. There was continued lack of clarity over Commissions but this did not seem to have been a major issue. Commissions were paid during this period. The Parties agreed that the relationship had been good during most of 2015, all of 2016 and early 2017 until the disputed phone call of the 14th March 2017.

It was also clear that the Complainant was left to operate largely to his own schedules from his home. This had led to unease with the employer regarding the non-visibility of the Complainant in the Respondent offices, the use (and times of use) of the Company van and amount of pest control stock being purchased.

However, to progress the Constructive Dismissal claim I will address the Two accepted Legal tests in claims of this nature.

3:3 Constructive Dismissal – First Test - Fundamental Breach of Contract between the parties.

The most fundamental breach of contract in an employment relationship is the non-payment of salary or wages. The Complainant’s salary was paid properly at times and no grounds exist here.

The issue of the Commission structures was ambiguous and was not helped by questions of cash in hand payments that allegedly arose from time to time. However, it was agreed that Commission had been paid albeit in somewhat disputed amounts. In the exchanges of correspondence that followed the Phone Call of the 14th March, commission, while mentioned, did not appear to be a major “deal breaker” issue. Likewise, Holidays were paid for 2017 and the issue of outstanding Holidays for 2016 was conceded.

All considered I could not see any fundamental breach of contract issue between the parties such as to successfully ground a Constructive Dismissal claim.

3:4 Second Test - Reasonableness of the behaviour of the parties /principally the Employer.

The settled law in Constructive dismissal cases is that the behaviour of the Respondent employer has to be of such an egregious nature, so fundamentally inappropriate, as to leave the reasonable Employee with no option but to resign.

In the case in hand the behaviour of the parties regarding the employment relationship was I though coloured by the fact that the initial employment was on the basis of a verbal agreement. Considerable ambiguity was a feature of the relationship and the situation was not helped by the fact that the pest Control business was new territory for the Respondent. The Complainant had come from a Pest Control background with a leading Company in the sector. Differences over details of Pest Control work were inevitable. However, by the time of the salary Increase in May 2015 the relationship seemed to have settled and no issues were evident during the remainder of the employment.

The Complainant seemed to have been largely left to operate semi independently.

The dispute phone call of the 14th March arose as a result of a customer Complaint from a close business friend of the main Respondent Director. A serious Rodent problem had developed in a catering/drinks establishment and the Complainant appeared to be having difficulties dealing satisfactorily with the issue. The oral evidence of Director Mr. Y was extensive in regard to this phone call. The call was in, no doubt, robust. However, I could not see how it warranted a Resignation from the Complainant as suggested in his e mail of the 15th March 2017.

The follow up meeting of the 29th March between the Complainant and the HR Executive Ms. XQ was detailed and all issues appeared to have been discussed. The Complainant had put forward his terms for continuing his employment (€60 per week for out of hours’ work), the tracking device in his van and his views regarding the attendance at the office issue as opposed to working from his home. Agreement on these terms was not possible and he had transferred his employment to another employer.

Reading the letter that issued afterwards (30th March) from Ms XQ I did not see the behaviour of an “egregious employer” rather a business focused discussion on existing issues and continuing terms of employment. The Company letter of the 30th March did result in further exchanges culminating in the e mail of the 3rd April 2017 where the Complainant stated

“Given that I found your response to be unacceptable, I have accepted the (alternative) job offer and ceased employment in Respondent with immediate effect”.

This statement came after the meeting of the 24th March and the lengthy Complainant e mails of the 15th March/ 3rd April 2017.

A successful Constructive dismissal claim has to have Unreasonable Behaviour making it virtually impossible for an employee to continue in the employment. The key element of unreasonableness pointed to by the Complainant was the issue of “call outs” and how they should be handled. The Respondent felt that the wage increase of May 2015 had addressed this issue and that the actual reality of callouts was not as dramatic as portrayed by the Complainant. I was inclined, on the basis of the oral evidence from the parties, to agree.

All things considered and taking a reasonable view point it was hard to see how this call out element of the dispute could be a major factor in a Constructive Dismissal resignation.

Accordingly, and in conclusion I did not find that the Complainant had satisfied the Unreasonable Behaviour legal test necessary in a Constructive Dismissal case.

3:5 Final Conclusion regarding the Constructive Dismissal.

As set out above I did not find that the Complainant made a sufficient case to satisfy the Breach of Contract or Unreasonable Behaviour tests required in a Constructive Dismissal case.

The claim is dismissed as not well founded.

3:6 CA-00013960-003 the Zero Hours complaint

It was agreed that as the Complainant did not have a Zero Hours contract, being a full-time employee, this element of the claim could not proceed.

3:7 CA-00013960-004 the Annual Leave Complaint

The issue of payments due had already been considered in a Workplace Inspection visit as requested by the Complainant. It appeared that Annual leave for 2017 had been paid and any monies due for 2016 would be discharged by the Respondent. An undertaking to this effect was given to the Adjudicator. I did not deem it necessary to proceed beyond this.

However, for the Record I am making a formal decision under the Organisation of Working Time Act, 1997. The Complainant is due 6 days’ annual leave for 2016. Should the Respondent fail to honour his obligation given to the Hearing the Complainant can seek enforcement of this award.

3:8 CA-00013960-005 - the Written Contract Complaint.

Written evidence was presented of a Contact dated the 26th September 2014 which was corroborated by the oral testimony of the relevant Director who had signed the Contract. It appeared that the Complainant had not signed his copy. On the balance of probabilities, I took the view that the Contract had been issued. The delay between October 2013 and September 2014 was regrettable and in breach of the Act. However, I felt that this was a minor issue, had not impacted significantly on the Respondent and not material at this stage, three years later and made no award.

4: Decision:

Section 41 of the Workplace Relations Act 2015,Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 27 of the Organisation of Working Time Act, 1997 and Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.


Act	Complaint/Dispute Reference No.	Summary Decision. /Please refer to Section 3 above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00013960-003	Zero Hours. Claim not appropriate / could not apply as Complainant was not on a Zero Hours Contract.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00013960-004	Holiday Pay. Respondent undertakes to discharge any liabilities here. For the Record I award 6 days’ pay to the Complainant.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00013960-005	A technical breach for the period October 2013 to September 2014. The impact on the Complainant was marginal and no award is made.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00013960-006	The Claim for Constructive Dismissal fails. The Complainant failed to satisfy the standard Tests on Breach of Contract and Unreasonable Behaviour required in cases of this nature.

Dated: 20/02/19

Workplace Relations Commission Adjudication Officer: Michael McEntee

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