Complainant

Respondent

Anonymised Parties

A sales manager

A technology company

Representatives

Daniel J O'Gorman O'Gorman Solicitors

Desmond Ryan BL instructed by DFMG 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-00028776-001

30/05/2019

The Complainant commenced employment with the Respondent on 3rd July 2017 and remained in that employment to 31st December 2018.

This complaint was received by the Workplace Relations Commission on 30th May 2019.

The Complainant contends that he was unfairly dismissed from his employment.

The Respondent accepts that the Complainant was unfairly dismissed from employment.

The Respondent, whilst initially contending that the Complainant was not unfairly dismissed, were defending a position that the Complainant’s position had become redundant. At hearing, as a preliminary issue, the Respondent accepted that the Complainant’s dismissal was unfair.

As the Adjudication Officer, I was asked to look at all the facts of the case and decide on a level of compensation.

The Complainant was dismissed on 31st December 2018 and was unemployed for a period of 4 months. He commenced employment with his new employer on 3rd May 2019.

I have looked at the Complainant’s efforts to secure employment and consider, given the time of year, that he made a genuine effort to secure employment.

The Representative of the Complainant furnished some loss of earnings figures to the Respondent’s representative on 2nd October 2019 (the day before the hearing), these were summarised in a letter to the Respondent that read as follows:

1.       The Complainant was paid up to mid-January 2019. He lost his full net salary from 15th January 2019 until 28th April 2019. He does not have specific access to his payslips with the Respondent. However, he calculates his average net salary was in the region of €3,000 per month. The calculation therefore specifically in loss of salary over that period is in the sum of €10,500.

2.       The Complainant’s case is that he would expect to resume parity of salary by the end of December 2019 taking into account commission that he is confident he will earn up to that date. However, there is still a shortfall in his package which comprises of a loss of the car and VHI. The value the car over 12 months is €8,000 gross. He was taxed by way of BIK of €150 per month. The Respondent is entitled to be credited with this amount. The net loss to the Complainant is therefore over a 12 month period is €6,200. In addition, the Complainant’s VHI was discharged for him in the sum of €1,200 which benefit was also taxed at €300 giving a net loss to the Complainant of €900 over a 12 month period. Therefore, the loss to the Complainant from January 2019 to December 2019 is in the sum of €7,100.

3.       The Complainant reasonably believes that he will be able to make up the loss of benefits i.e. car and VHI by June 2020 which will result in a projected further loss to him of benefits from January 2020 to June 2020 which is half of €7,100 which is therefore €3,550 net.

4.       The Complainant did earn some commission from the Respondent which was discharged to him. In view of the fact that the Complainant’s figures are, by their nature, not specific but reasonable, he is not looking to increase his salary loss from the Respondent above his basic salary although he is quite entitled to do that. The Complainant is also giving the Respondent every break in relation to salary the Complainant has yet to earn in his calculations. You will appreciate that these represent the Complainant’s best expectations and do not factor in Brexit, health, circumstances, et cetera. To condense the losses therefore, as follows:

At the hearing the parties summed up as follows:

Respondent.

·         The Complainant lived in Limerick. There was an understanding that he would work from the office in Dublin 3 days per week. After a while he would come to the office twice a week.

·         There were often months in which the Complainant failed to meet sales targets.

·         The Complainant informed the Respondent that he was going to look for another job.

·         The Complainant has found employment in Limerick. Consideration must be given to the fact that salaries in Limerick are lower than salaries in Dublin.

·         The employment relationship had become untenable.

Complainant.

·         Throughout the Complainant has been honest.

·         The figures presented are what he lost.

·         The Complainant is not looking for compensation for loss of commission.

·         Being dismissed at this time of year was not the kindest of blows for the Complainant.

·         The numbers presented are reasonable.

The Complainant was unfairly dismissed.

I have given considerable thought to this complaint and what was said by both parties at the hearing of the complaint. I now decide as follows:

1.       The Respondent has raised relevant points in defence of the their decision to dismiss the Complainant. I accept these points and accept that the Complainant contributed 20% to his own dismissal.

2.       The point made in relation to salaries in Limerick being less than salaries in Dublin is well made. I done some research on this by studying salary surveys and talking to an employer’s organisation on this matter. My conclusion on this question is that there would appear to be a differential of approximately 12% i.e. salaries in Limerick are approximately 12% lower than salaries in Dublin.

3.       The figures presented by the Respondent are reasonable. I will now make the adjustments outlined above.

€28,350 reduced by 20% =    €22,680

€22,680 reduced by 12% =     €19,958.40.

I now order the Respondent to pay the Complainant compensation of €19,958.40.

This compensation should be made within 42 days from the date of this decision.

Any tax liability on this sum should be agreed between the parties.

Unfair Dismissals Act.