ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025599
Parties:
| Complainant | Respondent |
Anonymised Parties | Recruiter | Recruitment Company |
Representatives | Brian Morgan of Morgan McManus Solicitors | Robert Crowley BL, Conor Cleary of Martin Solicitors, Luda Okafor, Martins Okafor |
Complaints:
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-00032517-001 | 27/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00032517-002 | 27/11/2019 |
Date of Adjudication Hearing: 11/02/2020
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as a Recruiter from 10th October 2016 to allegedly 16th July 2019. She was paid €28,800 + commission = total €36,000 per annum approx. She has claimed that she was unfairly dismissal and has not received minimum notice. She has sought compensation. Dismissal was in dispute. The Respondent asserted that the Complainant resigned her position and has rejected this complaint. |
Preliminary Point – Jurisdiction, No dismissal?
Respondent’s Position
The Respondent disputes that there was a dismissal on 16th July 2019 or otherwise. Therefore, the Workplace Relations Commission (WRC) has no jurisdiction to hear this case. The WRC may satisfy itself that an employee has been dismissed where an employer has informed the employee in clear and unambiguous terms that the employment contract is at an end. The employment was not terminated on 16th July as alleged. No reasonable interpretation of those events could lead to that conclusion. At no stage did the Respondent inform the Complainant that she had been dismissed. On the contrary the Respondent repeatedly communicated to the Complainant in writing that she had not been dismissed. They continued to pay the Complainant her salary in accordance with her terms and conditions of employment. What transpired on 16th July was an argument over her place of work. This does not equate to a termination of employment. They cited Devaney V DNT Distribution Co (UD 412/1993 in support stating, “where words are genuinely ambiguous what needs to be decided is what the speaker intended”. Also, Walsh V Sweeney 9UD 751/1992) In regard to the above decisions no reasonable employee could have considered themselves dismissed. She has chosen to interpret the events on 16th July as a summary dismissal for the purposes of seeking compensation. This is despite the Respondent having clarified their position on multiple occasions. The Respondent left that meeting on 16th July under the impression that the Complainant intended to leave her position in the near future. The Complainant’s own text messages following that meeting betray the fact that she herself was unaware of what her employment status was. Ambiguity or doubt as to one’s employment status does not equate to a dismissal. There was no dismissal and the Adjudication Officer does not have jurisdiction to hear this case. Complaint’s Position On 16th July she met with the Respondent’s two owners. She explained to the owners that she wanted to remain a PAYE worker and not to go entirely self-employed. She wanted to continue to work from her home. The owner was not open to discussing this option. She believed that every effort was being made to provoke her into leaving. They told her that they wanted her to work full time from the office. She advised them that she had an agreement with them to work from home and that agreement could only be changed by agreement. The owner then accused her of trying to destroy the business and he denied he had agreed to let her work from home and there was no written evidence of that. She reminded him that he had stated this in an e-mail. He reaffirmed that he couldn’t facilitate her working from home. She reminded him that she had been working remotely for months. The owner then accused her of threatening him and he shouted at her to leave the back the lap top and phone and to finish up. The Respondent texted her to come into the office to discuss any pay and commission that she was owed. She replied that she had not threatened him and asked him to confirm if she was sacked or not and before she would return the property she needed to be paid in full. He replied denying that he had dismissed her but that she chose to leave. She asked again was she dismissed. She then discovered that she had been shut out of the e-mails system. He texted after 1.00pm, the meeting had ended at 12.25pm, stating that she was either going freelance or was joining the Canadian company. At 1.41 she texted the owner again seeking if she had been dismissed. An hour later the owner asked what she proposed. She confirmed that she proposed to leave once she has found suitable alternative employment but as she had been shut out of e-mails this was not possible, the ball as in his court. He replied that he would pay her four weeks wages and all commission due. She texted the owner at 5.07pm that day that she was going to contact a solicitor “as being dismissed without notice is highly inappropriate”. He did not reply. On 18th July her solicitor wrote to the Respondent demanding that they confirm in writing the grounds for her dismissal. The Respondent replied that they were consulting a solicitor. On 2nd August the Respondent replied that she had not been dismissed and was “welcome to return to work”. Yet the owner on 16th had texted “ following your decision to leave work without permission during a meeting with management”. The Respondent some three weeks after the dismissal wrote “much obliged if you would confirm when, and if you will be returning to work, as we need to arrange our business accordingly”, this lacks credibility. She had replied to the owner on 16th August stating that given the way that she had been treated it could not be accepted as being genuine in her statement. The Respondent wrote to her on 16th August pointing out that she had been absent for more than 30 days without a sick note and had not notified them why she had not attended for work. She found this to be incredible. They wrote a second letter in response to hers of 16th August they maintained that she was not dismissed and that her employment remained open. They offered an independent investigator to review her grievance. She subsequently sought her P45 so that she could mitigate her loss. She stated that it her position that at no time on 17th or 18th July did the Respondent contact her to state that she had not been dismissed, nor did they contradict her solicitor’s statement. Their position constantly changed from she left of her own accord to her being still an employee and absent from work. She was dismissed on 16th when she was told to hand back the lap top and phone and come in to the office to agree what wages and commission is owed. There was a dismissal and the Adjudication Officer has jurisdiction to deal with the case.
Decision on preliminary point.
I note the conflicting positions of both parties. I note that the Complainant requested to discuss her position with the Respondent as she sought to work from home in a form of freelance work but to remain a PAYE worker. She stated that she did not want to be self-employed. I note that a conflict arose about her status and working from home. I find that she had an agreement with the Respondent to work from home. This was confirmed in writing by the Respondent. I note that the Respondent stated that this arrangement was to address the problematic relationships in the office only. I find that there was an agreement to work from home and that agreement could only be changed by agreement between both parties. I note that an argument broke out between the Respondent and the Complainant at the meeting on 16th. The Respondent affirmed that she could not continue to work from home. I note that the Complainant told the Respondent that she would seek alternative employment and continue to work with them till then. I find that that is not a resignation, but an intention to leave at some point in the future once she had found an alternative position. On the balance of probability, I find that in anger the Respondent told her to return the lap top and phone and leave. I find that that is dismissal, otherwise why would they want to take her working equipment from her. I find that the Respondent had ample time and opportunity to confirm her position as an employee but did not do so despite a number of texts being exchanged. I find that the later communications from the Respondent some two weeks advising that she was free to return to work, querying why she had not been at work and offering an independent investigator was I believe a form of “seeking planning retention” as used in property parlance. It had all the hallmarks of trying to get their position on side from a procedural perspective. On the balance of probability, I find that the Complainant was dismissed in a fit of pique, but the Respondent had every opportunity to correct their position on 16, 17th or 18 July and afterwards but failed to do so at that time. I have decided that there was a dismissal and I have jurisdiction to hear this case.
1)Unfair Dismissal CA 32517-001
Without prejudice it was decided that the Complainant would present her case first.
Summary of Complainant’s Case:
The Complainant stated that she had over nine years’ experience in recruitment, almost three with the Respondent. She stated that some of the people that they employed were highly questionable in their capabilities and actions. There was a very high turnover of staff either through dismissal or resignations. One such person who had left that the Complainant was uncomfortable with was being considered to be rehired. She advised the Respondent that she did not want to work with him. She experienced bullying and harassment and she started to work from home because of that. The Respondent did not address the bullying and harassment. They advised that it would end-up being one word against the other, so they advised her to work from home and they agreed to that arrangement. The Respondent told the staff in the office that she was working part time, to appease them. She came into the office on two days a week. She was treated like she was a whistle blower. Because of the treatment she worked from home full time. She then had decided to work four days a week as she was undertaking a course of studies. The Office Manager was making life difficult for her and she believed that she was being set up for dismissal as had others beforehand. When she completed the course of studies she advised the owners. She then learned that the unsavoury character was on their e-mail list. So, she believed that they used him to get rid of her. She e-mailed the owner asking why they wanted her to leave. She looked into working freelance for the company. She had also experience of a Canadian company who paid the minimum wage and 50% commission. She relayed this to the owner and suggested a meeting to discuss her working somewhere in between these two positions. On 12th July the owner asked her if she was sure she wanted to go self-employed. She replied that she wanted to go freelance and arranged to meet on 16th July. She did some research on becoming self employed and realised that it would not be in her best interests to do so. She decided that she wanted to work from home in this freelance capacity. On 16th July she met with the two owners. They met at a bench by the beach. She explained to the owners that she wanted to remain a PAYE worker and not to go entirely self-employed. The owner was not open to discussing this option. She believed that every effort was being made to provoke her into leaving. They told her that they wanted her to work full time from the office. She advised them that she had an agreement with them to work from home and that agreement could only be changed by agreement. The owner then accused her of trying to destroy the business and he denied he had agreed to let her work from home and there was no written evidence of that. She reminded him that he had stated this in an e-mail. He reaffirmed that he couldn’t facilitate her working from home. She reminded him that she had been working remotely for months. The owner then accused her of threatening him and he shouted at her to leave back the laptop and phone and to finish up. She returned to her car and proceeded to cancel interviews for that day as she was now no longer employed by the company. Just after 12.30 the owner texted her to come into the office to discuss any pay and commission that she was owed. She replied that she had not threatened him and asked him to confirm if she was sacked or not and before she would return the property she needed to be paid in full. He replied denying that he had dismissed her but that she chose to leave. She replied again asking was she dismissed. She continued to cancel interviews by text, but she then discovered that she had been shut out of the e-mails system. He texted after 1.00pm stating that she was either going freelance or was joining the Canadian company. At 1.41 she texted the owner again seeking if she had been dismissed. An hour later the owner asked what she proposed. She confirmed that she proposed to leave once she has found suitable alternative employment but as she had been shut out if e-mails this was not possible, the ball was in his court. He replied that he would pay her four weeks wages and all commission due. She then advised him that she would be consulting a solicitor. She texted the owner at 5.07pm that day that she was going to contact a solicitor “as being dismissed without notice is highly inappropriate”. He did not reply. On 18th her solicitor wrote to the Respondent demanding that they confirm in writing the grounds for her dismissal. The Respondent replied that they were consulting a solicitor. On 2nd August the Respondent replied that she had not been dismissed and was “welcome to return to work”. Yet the owner on 16th had texted “ following your decision to leave work without permission during a meeting with management”. The Respondent some three weeks after the dismissal wrote “much obliged if you would confirm when, and if you will be returning to work, as we need to arrange our business accordingly”, this lacks credibility. She had replied to the owner on 16th August stating that given the way that she had been treated it could not be accepted as being genuine. The Respondent wrote to her on 16th August pointing out that she had been absent for more that 30 days without a sick note or had not notified them why she had not attended for work. She found this to be incredible. They wrote a second letter in response to hers of 16th August, they maintained that she was not dismissed and that her employment remained open. They offered an independent investigator to review her grievance. She subsequently sought her P45 so that she could mitigate her loss. She stated that it is her position that at no time on 17th or 18th July did the Respondent contact her to state that she had not been dismissed, nor did they contradict her solicitor’s statement. She had been dismissed so what was the point in engaging with an independent investigator. The Respondent should have had proper procedures and it appears that they didn’t have them. The meeting on 16th became heated and when she was leaving she was told to return company property. No employee should be in a state of confusion. The e-mails being shut off and the passwords being changed is dismissal. This dismissal was unfair, she has sought compensation. She tried to mitigate her loss immediately and applied for jobs within two days. She got a job earning €250 per week till 20th September 2019. She got two jobs from the end of August earning €250 + 180 in telesales. The €250 job lasted till 20th December 2019. She is constantly looking for jobs. |
Summary of Respondent’s Case:
The Complainant commenced employment in October 2016 and her place of work was in Balbriggan Co Dublin. From February 2019 she started working from home at the suggestion of the Respondent. On 25th February the Respondent e-mailed the Complainant stating “Yes, I told you before to work from home but you chose to come to the office two days per week”. On11th July 2019 the Complainant contacted the Respondent with a proposition to change her employment status to work as a “freelancer” or contractor where she would work for herself and be paid no basic pay just commission. They agreed to meet to discuss this on 16th July. At this informal meeting she advised the Respondent that she no longer wanted to work as a freelancer as it would affect her social welfare entitlements and she would have to hire an accountant. She proposed that she would in effect work as a freelancer with autonomy over her hours of work but would be considered an employee and continue to be paid the minimum wage and receive holidays etc. The Respondent expressed concern about this proposed arrangement. They also stated that it might not be possible to allow employees to work from home because of the need to ensure that all personal data is kept secure. This led to a disagreement between the parties. The Complainant stated that working from home was now part of her terms and conditions and so could not be changed unilaterally. She pointed out that she did not like working in the office but that she would start to look for a new job. The discussion became heated and she asked the Respondent directly if she was fired and they responded, No. The meeting ended without resolution. The Respondent understood her final position to be that she would leave the company of her own accord and begin to look for a new job and that she had already begun negotiating terms with a Canadian company, as she had referred to during this conversation. Following this meeting several text messages were exchanged. She asked the Respondent to confirm that she was sacked. They replied by text “We never dismissed you, you chose to leave”. She again asked for clarification and stated that she never wanted to work for the company again. The Respondent asked her for solutions she might propose. She stated that she had already proposed to continue working for the Respondent until she found something better. The Respondent proposed to pay her for four weeks while she finalised her terms with the Canadian company. She then responded that she would be consulting a solicitor and insinuated that they could expect legal proceedings. The Respondent’s position was that she remained an employee. On 18th July they received a letter from her solicitor seeking the grounds for the dismissal. On 2nd August 2019 the Respondent wrote “for the avoidance of doubt you have not been dismissed from this company and you are welcome to return to work, this was made unequivocally clear in a text to you on 16th July last following your decision to leave work without permission during a meeting with management. During this time the Respondent continued to pay her. On 16th August the Respondent again wrote to her confirming that she had not been dismissed and asked for an update on why she had been on unauthorised leave for the previous 30 days. She replied that she did not accept these statements and requested her P45. It is their position that she was not dismissed. They could not agree to continue to work from home due to GDPR implications. They could not accept the freelancer role. They denied that they had a contract that she could work from home. They cut her off the e-mails because she referred to the WRC. They never said she was fired. They continued to pay her until she requested the P45. They understood her reference to the WRC meant resignation. The Complainant was very confused and she continually asked what her status was. They acted reasonably at all stages. It was unreasonable for her to form the view that she was dismissed. Also, this is not a constructive dismissal case. This claim is rejected. |
Findings and Conclusions:
I have decided that there was a dismissal, see above decision on preliminary point I note the conflicting positions of both parties. I find that the Complainant was uncertain about how she would proceed in her work with the Respondent. I note that she explored becoming a self-employed contractor or a freelance role. I note that she decided that she wanted to remain an employee in a PAYE arrangement. I find that while she was undertaking her course of studies she learned of a particular working arrangement in a Canadian company that she mentioned to the Respondent. I find that she never confirmed that she was pursuing a position with that Canadian company. I find that she did not take up work with that Canadian company after her employment ended with the Respondent. This confirms to me that she had not been pursuing a position with them. I find that matters became heated during the 16th July meeting when the Respondent confirmed to her that they wanted all their employees working from the office. I am not convinced that their reasoning being GDPR implications credible as working from home is commonplace. I find that the Respondent was entitled to make the decision that all their employees should work from the office. However, they needed to get agreement from the Complainant, but they didn’t. I find that the Complainant told the Respondent that she would seek alternative employment and continue to work with them till then. I find that that is not a resignation, but an intention to leave at some point in the future once she had found an alternative position. I find that when the Complainant told the Respondent that she would not work from the office the Respondent in anger at that statement, told her to return the lap top and phone and leave. I find that that is dismissal, otherwise why would they want to take her working equipment from her. I note that when the meeting ended abruptly the Complainant went to her car and began to cancel all her appointments that she had that day. I find that that confirms that she understood that she had been dismissed. I note that the Respondent texted her requesting a meeting to discuss any pay and commission due to her., they stated “please can you let me or X know when can come to discuss any pay and commission that is due to you. And if you want to talk without threatens me we can talk. If not please can you return to phone and any company materials that is with you as soon as”. I note that the Complainant replied “you did not let me finish before you exploded and what presume to be sacking? Please confirm”. This shows that the Complainant was not sure if she was dismissed or not. I note that the Respondent replied “we never dismissed you, you chose to leave. This confirms that the Respondent understood the employment to have terminated, albeit by the Complainant leaving. Then the Complainant texted “so am I dismissed or not, you shouted at me to return my things and finish up. I’m confused? The Complainant continued to text “you need to confirm my employment status…I think we should both calm (call) down today however I need to know where I stand. They replied, what solution do you propose? I find that within one hour of the meeting finishing the Complainant texted “I see you have locked ne out of the account” …I don’t want to go to the work place relations…” I note that the Respondent texted “we continue to pay you for 4 weeks and all the commission that due to you plus commission on work in progress while you sort out terms with Canadian company”. I found no evidence to support the Respondent’s position that the Complainant was about to join a Canadian company. I note that the Complainant then texted them that she was advised to consult a solicitor, “as being dismissed without notice is highly inappropriate. I note that the Respondent did not challenge that statement. I find that the Complainant’s solicitor wrote to the Respondent on 18th July 2019 demanding the grounds for dismissal. On 2nd August the Respondent wrote directly to the Complainant “for the avoidance of doubt you have not been dismissed from this company and you are welcome to return to work. This was made unequivocally clear in a text to you on the 16th July last following your decision to leave work without permission during a meeting with management”. I find that if this was the Respondent’s clear position then why wait till 2nd August to say that. I note that the Respondent replied on 16th August confirming that the Complainant was not dismissed and asked for an update on why she had been on unauthorised leave for the previous 30 days. I find that this action of the Respondent has all the hallmarks of trying to get “onside” procedurally with this matter. I find that this is a contradictory position by the Respondent, they stated that she had left after the meeting on 16th July so why would they be seeking information on her whereabouts for the previous 30 days if she had resigned her position. I note that the Respondent then proposed that an independent investigation should take place into her grievance. Again, I find that this has the hallmarks of trying to get onside procedurally. If this was a genuine response from the Respondent, they should have done so immediately after the meeting on 16th July. I understand that they had the benefit of legal advice at an early stage after 16th July. I note that the Complainant then requested her P45. I find that there was a dismissal. I find that the Respondent at the meeting on 16th July got angry and told her to return company property. I find that they then asked her to meet to confirm what monies she was owed in wages and commission, as one would when a termination of employment takes place. I find that the Complainant had created some confusion about what working relationship she wanted. I find that the Respondent could not agree to that and a heated argument ensued, culminating in the Respondent telling her to return the property. I find that the ultimate responsibility rests with the Respondent to act reasonably. Despite the confusion in the Complainant’s mind the Respondent had an opportunity to clarify and clear up the situation. I find that they did not. I find that they gave evidence that they shut off her e-mails because she had referred to the Workplace Relations Commission. I find that this action was in retaliation to the Complainant’s position. I find that the subsequent communications in August only compounded the matter and the Respondent tried to get on side procedurally, but I find that this only affirms in my mind that they had dismissed the Complainant. I find that the dismissal was substantively unfair. I find that the dismissal was procedurally unfair as they did not apply any fair procedures whatsoever to this termination. I find that the Complainant made earnest efforts to find work and mitigate her loss. I find that compensation is the appropriate redress.
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. For the above stated reasons, I have decided that this complaint was well founded. I have decided that compensation is the most appropriate redress. I have decided that the Respondent should pay the Complainant compensation of €20,000 within six weeks of the date below.
1)Minimum Notice & Terms of Employment Act CA 32517-002
Summary of Complainant’s Case:
The Complainant has claimed that she was summarily dismissed and she did not receive minimum notice. |
Summary of Respondent’s Case:
The Respondent stated that there was no dismissal. She resigned her position and so she was not entitled to minimum notice. |
Findings and Conclusions:
I refer to the unfair dismissals case decision above CA 32517-001. I found that the Complainant was unfairly dismissed. I find that she did not receive her entitlement to minimum notice. I find that she is entitled to minimum notice. As per the terms of the Minimum Notice and Terms of Employment Act I find that she is entitled to two weeks’ notice amounting to €1,107.69, based on her annual salary of 36,000 X 4/5 = €28,800/52X2. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that this claim is well founded. I have decided that the Complainant is entitled to two weeks’ notice amounting to €1,107.69. I have decided that the Respondent should pay this amount within six weeks of the date below.
Dated: April 29th 2020
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Unfair dismissal in dispute and minimum notice |