ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021743
Parties:
| Complainant | Respondent |
Anonymised Parties | Sales Manager | Safety Training and Consultancy provider |
Complaint(s):
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-00028463-001 | 16/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028463-002 | 16/05/2019 |
Date of Adjudication Hearing: 28/08/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that she was Constructively Dismissed which means that the onus is on the Complainant to demonstrate either that there has been a fundamental breach of the Contract of Employment or that her Employer’s conduct or behaviour was such that she had no reasonable alternative other than to tender her resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that she was forced to terminate her Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate his employment (as defined in Section1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the of Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.
Secondly, the employee may allege that she satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for her to resign. That the employer has conducted its affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving.
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment (by reason of Constructive Dismissal) wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 16th of May 2019) issued within six months of her dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would have regard for the seminal Employment Appeals Tribunal case UD 474/1981 Margot Conway -v- Ulster Bank Limited Wherein the Tribunal stated:
“The Tribunal considers that the Appelant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appelant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her but it is possible.”
Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
In addition to the foregoing the Complainant has a second complaint:
Wherein in accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Background:
The claim is one of Constructive Dismissal. |
Summary of Complainant’s Case:
The Complainant provided me with a comprehensive written submission together with supporting documentation. The Complainant was represented at the hearing and gave oral evidence which was tested by the Respondent. |
Summary of Respondent’s Case:
The Respondent was represented at the hearing and I was provided with a comprehensive written submission. The Respondent’s evidence was presented by the Managing Director whose evidence was tested by the Complainant. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. It is common case between the parties that the Complainant was head-hunted by Mr GH the Managing Director of the Respondent company who had been impressed with her competency and skill set when he had crossed paths with her in the given industry. I accept that there was a period of negotiation before the Complainant joined up with the Respondent company and that the salary of €55,000.00 with additional bonus was agreed together with the use of a company car. I heard a considerable amount of evidence concerning the acquiring of the company car and the various different options considered before finally settling on a PCP programme. The Complainant states that this is illustrative of her point that the employment relationship appeared to be built on shifting sands where the MD was difficult to tie down and as a result of which things to be agreed between them became protracted and open-ended. I myself formed the impression that the MD had a constant eye on the bottom line and whether a decision was made (or equivocated on) depended on how it affected the financial bottom line. He was wary, for example, of how a new car for one employee would expose him in front of the rest of his staff. In any event the Complainant came to work for the Respondent in June of 2016 and there was no issue with the management of her sales team of four persons. It is common case that there was a rivalry or bad blood between two of her team and the issue of how they were managed would subsequently become an issue. The team targets were set for the financial year running from June 2016 to June 2017 and the Bonus would only apply in the event that the Team hit sales of 1.25 million. In July 2017 it was clear that the Complainant’s team had fallen short of these objectives and it was agreed that the next year’s figures should be revised downwards. What was also discussed was the Complainant’s future with the company as the MD was looking at the bottom line and had noted that the expense of engaging and paying the Complainant had not been absorbed in profits and sales. The question of redundancy was raised but also the issue of a demotion with a drop in salary and limited bonus. The parties agreed to the latter option and the Complainant was happy to move into a pure sales role and not have the additional Managerial role and she expected that in due course, that those tasks associated with management would be removed from her. In fact, this never happened as those matters that should have been ironed out for the purpose of taking the demotion (personal targets, holidays etc), were ultimately superseded by the Complainant being re-instated back to Sales Manager in and around October of 2017. The MD had decided he still needed the Complainant to perform the management function and he backdated her pay as if the demotion had never in fact taken place. There is conflict on exactly what terms the Complainant resumed her position of Sales Manager and I recognise that a pattern had now formed where the MD was never as clear as he might have been on decision making and detail. The MD says that he notified the Complainant that the position that she was now engaged to perform was the exact same as the position she had been engaged to perform other than the fact that there was now to be no bonus element. The Complainant says she understood her position would be the exact same and included the bonus element and she had not been notified any differently. I was provided with a document (option 2 document) which I was told was created in and around October 2017 and which set out the new package which excluded a bonus. The MD could not state when or if the Complainant had sight of same and there is no evidence of any agreement having been reached. The Complainant says she had never seen the document I was presented with. To some extent, the evidence backs up the Complainant’s overall point that the MD was so bad at tying down detail. On balance I am therefore of the view that where a new agreement has not been proven to have been reached then the Contract of Employment (and associated agreements) operable since May or June of 2016 is still extant. In any event the Complainant continued to work in her capacity as Sales Manager for another year and in that year reversed the slide in sales and hit a sales revenue of 1.7m which. In making her enquiries of where this would leave her as regards a Bonus in and around August of 2018 the Complainant was advised that the terms of the Original Contract of Employment regarding Bonus was “obsolete”. The Complainant did not accept this, and the matter should have been re-visited. I should note that in the course of evidence I was told that the Complainant had inflated figures by including sales which should not be included though the Complainant rejected this and there is no evidence to suggest that this point was made in August 2018. It is clear to me that the relationship between the Complainant and the MD deteriorated after this point. The MD gave evidence that his manner was no different than it had always been, and that if the Complainant felt undermined or side-lined in meetings etc., he was never told that this was how she felt. The evidence that the parties provided to me in relation to this period of time is diametrically opposed one from the other. The Complaint says she was working in a toxic environment and the Respondent says he has no recall of this being the situation over and above what he described as the ordinary cut and thrust of a competitive Market environment In October 2018 the Complainant went out sick for a week with pneumonia. While she was gone it seems that matters came to a head in her department and there was a massive row between two of her staff with one of them quitting for good. On her return to the workplace, the Complainant was asked to attend a performance review meeting that afternoon. This was unusual, as she had never had to attend such a meeting before. The email inviting her to the meeting was opened to me and I have to agree that nothing in that invitation (which was of itself unusual) could have forewarned the Complainant that the MD had gone to her staff – in the aftermath of the hugely upsetting blow-out described – looking for their judgement on her managerial performance. The MD stated that this was a perfectly appropriate 360-degree peer review of the Complainant’s performance in the workplace. He was, it has to be acknowledged, entitled to ask his employees about the Complainant in her capacity as their manager. However, it is not clear to me how and in what spirit the information was gathered i.e. was it gathered to acquire a greater understanding or was it gathered to diminish the Complainant? In circumstances where the Document entitled “Performance Review” created after this first meeting has not one single positive thing to say about the Complainant by the MD or the staff that he had purportedly interviewed (in the format of acquiring soundbites), it is therefore difficult to see that the object of the exercise was anything other than the diminishment of the Complainant. In fact, this said document seemed to have already determined that the Complainant would be once again be stripped of her management status and bumped down to “conventional sales” In the course of the meeting the Complainant says that she defended her sales average as being within expectation and was flatly told that this was not the case though she was never provided with information about how she was wrong. It was put to the Complainant that if she was unhappy about how she was being treated at this meeting and indeed at earlier meetings before she went out sick, then why hadn’t she triggered a Grievance in the usual way? The Complainant conceded that she knew of the availability of the various different procedures set out in the handbook but could not see that they could have any fair outcome when her complaints could only be against the Managing Director and owner of the company. It is regrettable that she did not consider this option as we cannot know how the MD would have reacted in terms of implementing a fair process for hearing a grievance through possibly a third party intermediary? What in fact happened was that the Complainant handed in her Notice within a week and at a follow up meeting to review her performance. The Complainant went out on Garden Leave. The MD confirmed with me that he never suggested that the Complainant should re-consider her decision and seemed in fact content that she had made the best decision for both of them. It was during her Garden Leave that the Complainant raised the unfinished issue of her Bonus entitlements which the MD agreed he would revert to her on. This he never did. On balance, I am satisfied that the events and circumstances surrounding the meeting between employer and employee on the 18th of October 2018 and the interaction thereafter was such that the Complainant felt that she no longer had the support of her Employer and was made to feel expendable. In those circumstances she tendered her resignation and was met with no resistance in this regard. In her initial submission the Complainant described it as being “managed out the door” and I am inclined to agree with her. I accept that the Complainant did not utilise any of the support mechanisms that somebody of her professional capabilities knew were available to her, and I have taken that and her failure to exhaustively mitigate her losses into account in reaching a decision on compensation. In addition to the foregoing I am satisfied that the Employer was bound to pay a Bonus in and around August or September of 2018 and the fact that he was not going to pay it was only clear to the Complainant at the end of her Garden Leave when all other financial/remunerative obligations were discharged.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint under Payment of Wages Act and in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00028463-001 - The Complainant was Unfairly Dismissed and I award compensation in the amount of €15,000.00 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00028463-002 – The Complaint herein is well-founded and I direct that the Employer do pay to the Employee the sum of €6,000.00
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Dated: 11/09/19
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Key Words:
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