Complainant

Respondent

Anonymised Parties

A Sales Manager

An Interior Design Business

Representatives

David Gaffney, Gaffney Solicitors

Terence O Sullivan, Solicitors.

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00032459-001

25/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032459-002

25/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032459-003

25/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00032459-004

25/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997(Withdrawn at hearing)

CA-00032459-005

25/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997(Withdrawn at hearing)

CA-00032459-006

25/11/2019

In 25 November 2019, the Complainant, a Sales Manager at an Interior Design Business submitted 6 complaints to the WRC in respect of her employment which commenced most recently in January 2014 and ended in October 2019. The complaints were focussed on the National Minimum Wage, Terms of Employment and a claim for Constructive Dismissal.

On 17 December 2019, the Respondent filed a rebuttal of the claims. The hearing was first scheduled for hearing in March 2020 but was delayed due to national pandemic. The hearing was relisted for 28 September 2020, the earliest date available.

On September 18, 2020, I wrote to the complainant’s representative seeking an outline submission in the claim for Constructive Dismissal. The Complainant preferred to rely on oral submissions.

Two claims submitted in accordance with the Organisation of Working Time Act, 1997 were withdrawn at hearing. CA-00032459-005 and CA-00032459-006.

Both parties were represented in the case. The Complainant by David Gaffney Solicitors and the Respondent by Terence O Sullivan, Solicitors.

The Complainants Representative outlined the circumstances which led to the 4 live complaints before the WRC.

The Complainant had worked for the respondent in several different roles prior to January 2014, the period encompassed by the circumstances of this case. He argued that the complainant was compelled to leave her role as Sales Manager on 31 October,2019.

CA-00032459-001 National Minimum Wage

The Complainant submitted that she had not received the national minimum rate of pay. She submitted that her pay reference period was monthly and the contravention had occurred on 1 June 2019.

The Complainants representative contended that a request for a statement in accordance with Section 23 of the Act had been submitted by the complainant but had not been responded to before 10 October 2019. They undertook to furnish this request.

CA-00032459-002 Terms of Employment

The complainant’s representative outlined that the complainant had not been provided with a statement of her Terms and Conditions in compliance with the Act.

The complainant had not received the contract of employment, May 2019 relied on by the respondent and a mere 2 out 10 components of section 3 of the Act had been complied with.

CA-00032459-003 Notification of Change in Terms of Employment

The complainant’s representative outlined that the respondent had made expansive changes in how base earnings and commission was calculated in February 2019 and these changes were not notified to the complainant by way of a statement in accordance with Section 5 of the Act.

The Complainant sought an extension of time in accordance with Section 41(8) of the Workplace Relations Act, 2015 on reasonable cause citing the complainants sick leave, absence from work and the inordinate delays in responding to her raised issues on terms and conditions of employment.

CA-00032459-004 Claim for Constructive Dismissal

The complainant’s representative outlined that she had to leave her job because of the way she had been treated.

The complainant found her working life very difficult on her return to work following a period of sick leave in 2018. Issues surrounding her pay, annual leave which had not been applied to her commission payments, taken together with repeated delays in organising meetings with the Management Team, caused her to experience work related stress, made her continuance at work untenable and prompted her decision to resign.

The Complainant had actively addressed the application of annual leave as the pay slips, she had received did not show a delineation of annual leave and she was confused about this. During the months preceding her resignation, she had engaged in a “dossier of emails “with the respondent which in the complainant’s view amounted to a grievance without being referred to as a grievance “per se” This situation remained unresolved on the complainant’s departure.

Evidence of the Complainant:

The Complainant submitted that she had worked with the company for over 18 years. Firstly, in their shop in town and most recently, she had worked in the capacity of Sales Rep which was a flexible and mobile role. During 2018, she had major surgery which caused her to have to manage financially on statutory sick pay. Her basic pay of €1250 basic per month and Commission were not realised during sick leave.

The Business had undergone some administrative changes in 2017 and the system of application of commission changed from application at deposit stage to being realised on collection. This created a lull in commission for the complainant which went untested until her sick leave brought it into sharp focus.

On the complainants return to work in late 2018, the complainant discussed her financial shortfall of unrealised commission with her Sales Manager of two years who then altered the base monthly earning from €1250 to €2000 monthly with a commensurate tweak of sales target from 12,000 to 16, 0000 euro. The Complainant contended that her views on this were not sought and she felt excluded from this process.

The Complainants also wanted a role change and an easier working pattern but felt that she was not being taken seriously or heard on this. She recalled that she had been laughed at by her managers. She was concerned regarding her financial hardship. she was unaware of her colleague 10 Sales Managers terms or whether they had experienced the same restructuring of terms. The complainant was not able to exhibit medical support for these requested changes.

She commenced sick leave again in May 2019 and sought to address her issues from that time forward by way of email threads to the respondent. A response issued on May 16.

She stated that her issues incorporated averaging of holiday pay for the salary paid in commission, Health and Safety Issues in relation to using ladders at work as she did not want to measure products. She had attended building sites previously for the company, but she needed more support in 2019. The Complainant was not provided with a job description and had not received a copy of the contract of employment or the staff handbook, now exhibited in the case.

The Complainant stated that the company was engaged in an expansion programme. The Complainant contended that having previously been highly flexible and adaptable for the respondent, she became frustrated with the company and lost trust in them. She confirmed that relations were fraught with her Manager and consequently felt unsupported in her dealings with management and nobody apologised. The Complainant acknowledged that she was not owed anything from the respondent on her departure and had taken legal advice prior to her termination of employment.

The Complainant submitted that she had no choice but to resign her position.

In cross examination, the complainant confirmed that she had received all holidays owed to her. She confirmed that changes in the structuring of commission occurred in 2017. These changes were implemented without her consent, the complainant also referred to the changes in base earnings and amended sales targets in January 2019.

She recalled a very upsetting meeting with her sales manager in January 2019.

In addressing the respondent’s representatives’ questions on why she didn’t wait to engage with the proposed involvement of an external Human Resources? she replied “I don’t know if Ms X, (HR) would have understood”

The complainant wanted to obtain all her documents from the company and disputed that her attendance at Occupational Health had assisted her as she had felt so let down by the company after all her hard work there. It went deeper than offers of counselling, which she did not need.

The complainant stated that she felt forced out herself but did not elaborate on facts around that action.

The Complainant confirmed that that she had found new work 3 weeks post her departure from the respondent employment. She confirmed that she had applied for the position within two weeks of her resignation and accepted the offer two days before commencement of this new work.

The Complainant confirmed that she addressed the national minimum wage rate on 26 September 2019 and referred to the pay reference period of January to June 2019.

The complainant affirmed that the change in timing of the application of commission had occurred in 2017 and the retitled base rate of income and amended commission occurred in January 2019.

In conclusion, the Complainants representative reaffirmed that the complainant had been direct and focussed in her stated grievance with the company. However, her level of frustration grew when she did not obtain satisfactory responses. Communication was interspersed by inordinate delays and a persistent confusion surrounding the complainant’s terms of employment. The foundation document of employment (2014) was bereft of the full statutory terms which was not reconciled through the late despatch of the revised contract or handbook.

Nobody at the respondent business reached out to the complainant once she submitted her resignation, nobody asked her to change her mind.

The Solicitor for the Company outlined that this was a second-Generation Family Business which operated a busy and successful Interior Design Business.

The Respondent refuted all 4 claims and referred to the December 2019 written submission which had addressed each claim in turn.

CA-00032459-001 National Minimum Wage

The Respondent outlined the complainant’s hybrid pay system, where a base pay is paid at €2,000 per month and commission is applied on a sales target of €16,000.

The respondent contended that the complainant’s total earnings had been well more than the Statutory minimum rate of pay monthly. The company did not operate a paid sick leave scheme. They argued that they had not received a notification in accordance with Section 23 of the Act and no contravention of the Act had followed.

2014           average hours worked 15.17         total earnings €31,560.61

2015 average hours worked 18.23         total earnings €37, 912

2016 average hours worked 22.04       total earnings €45,849

2017 average hours worked 24.23         total earnings €50,390

2018   average hours worked 27.80   total earnings €17,794 (sick leave from May)

2019   average hours worked   21.51   total earnings €13,765.54(sick leave from May)

The Respondent confirmed that on 26 September 2019, the complainant sent an email which stated: It would also appear to me that in the absence of commission payments and during periods of annual leave when I only received basic pay, such rate was below minimum wage. Can you please send me a statement setting out the calculations of my hourly rates of pay for the period of January 2014 to September 2019”?

The Respondent responded by email the next day setting out a spread sheet of average hourly pay and determined that “I have also calculated your average hourly rate of pay from 2014 to the date o the sheet and you will see that it is far more than minimum wage “

The Respondent submitted this was the sole reference to minimum wage by the complainant and they believed that it had been addressed.

CA-00032459-002 Terms of Employment

The Respondent denied any contravention of the Act and outlined that the complainant had been furnished with a basic written statement of terms and conditions in January 2014. This incorporated pay structure, job description, and location of employment. These were augmented in May 2019 by provision of an employee handbook and written contract of employment, backdated to January 2014.

CA-00032459-003 Notification of Change in Terms of Employment

The Respondent disputed any breach of section 5 of the Act. By way of written submission, December 2019 the respondent submitted that the complainant had not faced a change in her terms and conditions of employment.

At hearing, the respondent listened to an elaboration of the claim as focussed on a restructured base salary and varied sales target prior to application of commission which followed the respondents return to work in February 2019.

The respondent argued that this claim was out of time and thus statute barred considering the 25 November 2019 complaint form. The respondent had engaged in a listening exercise with the complainant based on her financial circumstances post extended sick leave and understood that the proposed revised terms were more favourable to her.

In considering the complainants submission for application of reasonable cause, the respondent refuted that the Test for reasonable cause had not been met by the complainant.

CA-00032459-004 Claim for Constructive Dismissal

The Respondent refuted the claim for Constructive Dismissal and submitted that it was without merit. The respondent had endeavoured to work with the complainant towards a mutually acceptable resolution of her stated difficulties.

The respondent had addressed the complainants concerns regarding annual leave which applied to her commission payments and annual leave had been paid in full of retrospection.

The respondent operated a staff handbook which ha been furnished to the complainant in May 2019 and she had not raised a grievance. the Respondent submitted that they had engaged fully at senior level with the complainant in the months prior to her resignation.

This included the involvement of an Independent Medical Doctor and External Human Resource Practitioner. However, the complainant failed to engage with the respondent or with the proposed external practitioner.

The Respondent had followed the Medical Practitioners recommendation to hold a meeting to address the issues involved.

The Respondent contended that the complainant had not exhausted all remedies prior to her termination of employment.

The Respondent acknowledged and accepted the complainant’s resignation and wished her all the best.

Evidence of Mr X, Chief Financial Officer (CFO)

Mr X has been CFO at the company since 2006. He confirmed that the complainant had first mentioned a reference to Minimum Wage on 26 September 2019 to which he responded on 27 September 2019. This was the only occasion where Minimum wage was ever raised by the complainant. It was the respondent position that the complainant had always earned more than the minimum wage. The complainant did not receive paid sick leave.

The Company had adjusted the complainant’s basic pay in 2019 which meant that she didn’t have to sell as much to earn basic pay.

Mr X oversaw an analysis of the complainant’s annual leave associated with paid commission. He acknowledged that the annual leave records on file for the complainant were “patchy” from her perspective. The complainant received full retrospection of annual leave back to 2014. This was a stepped payment.

During cross examination, Mr X confirmed that the analysis undertaken of the complainant’s earnings demonstrated that the work was heavily commissioned and while the complainant had no difficulty reaching sales targets, a revise base earning structure was decided with the complainant’s line manager as more favourable to the complainant.

Mr X confirmed that the complainant understood that the annual leave had been subject to a “look back “process.

Evidence of Mr Y, Managing Director (MD)

Mr Y had worked with the family business for over 30 years, becoming MD 5 to 6 years previously. He acknowledged that “Sales People “50% female and 50% male were “the life blood of the company “.

He was aware of the complainant’s absence through illness in 2018. He recalled a meeting in April 2019 where pre-arranged sales were discussed with the complainant and her line manager. He understood the restructured salary and commission may have been confusing for the complainant but were advantageous to her. Other Sales Managers had 1:1 discussion with the Line Manager at that time.

Once the complainant recommenced sick leave in May 2019. She submitted several emails which suggested a clash with either the line Manager or Mr Y and he commissioned input from an external Human Resource function as this function was not available internally. The Complainants line Manager had approached him on the complainants stated dissatisfaction on her terms and conditions.

He believed that he did the right thing by seeking an Intermediary. He was keen for the complainant to resume work. He told the hearing that he wanted to thrash out the issues raised by the complainant, but she refused any invitation to meet on a face to face basis.

He offered this external support to the complainant on 6 occasions and she did not avail of it. The Complainant had submitted medical certificates outlining stress prior to mid July 2019, after that time, work related stress was outlined.

Mr Y was troubled by the lack of an apparent grievance and he was advised to secure an independent medical review of the complainants’ circumstances. This review indicated that the parties should meet to discuss the complainant’s issues and he endeavoured to set this up, but the invitation was refused. He was surprised that the complainant resigned as he had not wanted to lose her from the Company.

In cross examination, Mr Y confirmed that the complainant had raised workplace issues and he had channelled these to an external HR practitioner and an Independent Occupational Health report. He accepted that the complainant was unhappy, and he believed that he sought to provide a framework for resolution.

He confirmed that the complainant had been offered manual handling training and Safe Pass/ Hard Hat were not a requirement of the job.

The complainant had been given a statement of her terms of employment in 2014 and these were updated in May 2019. She had never been paid less than the minimum wage.

He could not understand the complainant’s decision to leave her job. The medical report of 13 September 2019 proposed that “a meeting to clarify workplace issues “should occur but this was not acceptable to the complainant.

In conclusion, the Respondents Solicitor reaffirmed the measures that the Company had undertaken in support of a planned return to work for the complainant, but she did not engage, preferring to rely on emails as her primary means of communication.

The respondent commissioned independent Human Resource advice, Independent Occupational Health advice and an offer of Counselling to encourage the complainant to return to her jobs. In addition, the respondent addressed all the documents requested by the complainant and reaffirmed that she had always earned more than the minimum wage during her period of employment, exclusive of sick leave.

The Respondent submitted that the complainant’s loss in the event of a proved constructive dismissal could not exceed 4 weeks’ pay considering her prompt securing of new work.

The respondent submitted that the complainant had not exhausted internal remedies prior to her termination of employment. She had received legal advice during this period.

I have considered the four claims advanced in this case. I have spent some time analysing the extensive email thread exchanged between the parties from May 2019 to the conclusion of the employment in October 2019.

I would have liked to have had a written submission by the complainant to balance that submitted by the respondent in December 2019. In addition, as the case was heard under the “face to face “guidelines for hearings, a written submission is helpful to set out at the very minimum the chronology in the case. However, I had the benefit of most of the parties involved at hearing and direct evidence and cross examination assisted greatly. I did not have the benefit of meeting with the complainant’s line manager and I will return to this later.

For now, I will address the claims advanced on the complaint form save both complaints which were withdrawn on the day of hearing.

As an opener, I wish to comment that this was a long-standing employment relationship which for many years seems to be respectful and mutually beneficial. From my point of view, I was dissatisfied at the fragmentary approach to the foundation documentation of the employment relationship. I have found that a lot of the difficulties experienced by the complainant in the latter days of her employment arose from a vacuum in a clear statement of terms of employment which were not rectified by latter day remedial actions.

CA-00032459-001 National Minimum Wage

The Complainant has submitted that she did not receive wages of a sum equal to or more than the minimum wage.

The National Minimum Wage Act, 2000 declares that an employer can expect to receive a national minimum hourly rate of pay in certain circumstances for which there are minor exclusions.

14.Subject to sections 15,17,18and 41, an employee shall be remunerated by his or her employer in respect of the employee’ s working hours in any pay reference period, at an hourly rate of pay that on average is not less than the national minimum hourly rate of pay.

The minimum hourly rate of pay stood at €9.80 during 2019 and is €10.10 from February 2020. The Minister for Enterprise Trade and Employment declares this payment and is advised by the Low Pay Commission.

Working Hours have the meaning assigned in Section 8 of the Act and reflect the working hours as determined by contract, statement under Terms of Employment (information), Act, notification under Organisation of Working Time Act 1997 or any other agreement forged between the parties.

or

(b) the total hours during which the employee carries out or performs the activities of his or her work at the employee’s place of employment or is required by his or her employer to be available for work there and is paid as if the employee is carrying out or performing the activities of his or her work,

whichever, in any case, is the greater number of hours of work.

(2) “Working hours” under this section shall include—

(a) overtime,

(b) time spent travelling on official business, and

(c) time spent on training or on a training course or course of study authorised by the employer, within the workplace or elsewhere, during normal working hours,

but shall not include—

(I) time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call,

F9 [ (ii) time spent absent from work on annual leave, sick leave, protective leave, adoptive leave, parental leave, carer’ s leave under the Carer’ s Leave Act, 2001, while laid-off, on strike or on ‘lock-out’, or time for which the employee is paid in lieu of notice, or]

(iii) time spent on travelling between an employee’s place of residence and place of work and back.

I have set out above the matrix for measurement of working hours in accordance with the Act .In Karpenko v Fresh cut Food services [2019] IEHC 693, the High Court addressed a point of law appeal on the interpretation of working hours and held that “ The Act is an important piece of protective legislation and the proper interpretation of and application of section 8 is of general relevance and importance “ This involved a case surrounded the interpretation of contracted hours vis a vis hours provided by roster and emphasised that the minimum levels of pay for employees are only in respect “of times they are working” .

In the instant case, I sought a Section 23 request for statement by the complainant. I did not receive anything outside the 26 September email quoted above. My jurisdiction in this case is outlined in section 24 of the Act and I must be satisfied that the terms od Section 23 have been complied with.

Employee entitled to statement of average hourly rate of pay for pay reference period.

23

23.— (1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee’s average hourly rate of pay for any pay reference period (other than the employee’s current pay reference period) falling within the 12-month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee’s request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of Schedule 1,

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

Working from the Complainants email of September 26, 2019, I find that she did not seek an average hourly rate of pay in accordance with the Act. She did however seek a statement in writing and identified a 5 year pay reference rather than the 12 months preceding the request.

It is important for me to reflect that the complainant had expressed repeated dissatisfaction on the systemic failings surrounding the calculation of annual leave and her perceived lack of transparency in how this was tabled on her pay slip from. From May 2019 onwards, she had sought a declaration of clarity in that regard. Therefore, I don’t believe that the complainant can be rules out on Section 23(2) of the Act.

However, I must now record that the terms of Section 8 of the Act on the calculation of working hours were clearly not known to the complainant as time spent on sick leave and annual leave is not recognised in the calculation of working hours under section 8.

I noted the respondent’s response to the request for a statement which was furnished the following day.

“I have also calculated your average hourly rate of pay from 2014 to date on the sheet and you will see that it is far in excess than minimum wage “

The first statement of terms of employment dated 20 January 2014 was bereft of a mention of working hours. The unsigned contract of May 2019 sought to clarify this by referencing a 39-hour week and references to working time and provision for overtime.

The statement provided by the respondent to the complainant included an amalgam of the rectifications made to retrospection of annual leave and public holidays and exhibited that the complainant had been paid more than the minimum wage during the cognisable period of this claim. However, the respondent was not in my opinion familiar with the terms of Section 8 of the Act as the average hourly rate shared with the complainant was made up of annual leave pay.

I was struck by the complainants focus on her periods of absence as causing the concern around the national minimum wage rate. I appreciate that both late 2018 and May to October 2019 did not yield basic pay for the complainant and while she did secure some commission administered over these months, she was subsisting on a state sick pay. The absence of a work paid sick leave scheme goes to the heart of this case. There was no contractual reference to this in either 2014 or 2019 documents and the parties accepted at hearing that a paid sick leave scheme was not in existence.

From my consideration of this case , I have not concluded that the complainants pay fell below the minimum that allowed for the hours she worked , but rather that when those working hours were interrupted by illness ,she was suddenly reliant on a state payment and some delays in the payment of commission that caused her a financial vulnerability she wished to test in this complaint .

I have found the complaint to be not well founded and I have not established a contravention in the Minimum Wage Legislation.

I have not been provided with evidence of an Investigation into a separate complaint made by the complainant to the WRC Inspectorate.

CA-00032459-002 Terms of Employment

I have considered both sides’ responses to this claim. I accept that the complainant was provided with a well intentioned but poorly drafted statement of terms of employment in January 2014. Section 3 of the Act sets out the provisions required in a statement.

Written statement of terms of employment.

3

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following of the terms of the employee’s employment,

I accept the complainants stated position that it was void of so many of the requirements of Section 3 of the Act. I heard the respondent’s response which reflected that the complainant first sought a contract in May 2019 once she commenced sick leave and the document raised then was meant to address the earlier documents shortcomings. I accept that the handbook was also furnished at this juncture despite a 2018 updating mechanism.

For my part, the timing of provision of a statement of terms of employment not later than 2 months into employment is a vital requirement of Section 3. I appreciate that the information may be gleaned from several sources and given to an employee.

However, in this case, I must reflect on the shortcomings of the January 2014 document and must conclude that Section 3 of the Act has been emphatically contravened by the respondent. The failure on the respondent’s part to provide the key requirements of section 3 may have contributed to the eventual Faultline in the latter employment relationship. This document is an important foundation document in establishing an employment relationship and requires a strict adherence to the terms of section 3 of the Act.

I have found the claim to be well founded.

CA-00032459-003 Notification of Change in Terms of Employment

I have considered this claim as advanced by the complainant and the response formulated by the respondent. The issues outlined in the claim go to the root of the case i.e. changes in the structuring of the complainant’s case. I found it necessary to secure a clarification on the complaint inserted on the complaint form. I established that there were two material changes which the complainant took issue with.

1. The change in the payment time for commission in 2017

2 The restructuring of base pay and altered commission structure in February 2019.

Section 5 of the Act sets out the obligations on an employer to notify the employee of changes to terms and conditions of employment within a finite period.

Notification of changes.

5

5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

( a) 1 month after the change takes effect, or

( b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure

Both parties agreed on the above chronology and this immediately caused me some concern for my own jurisdiction under section 41(6) of the Workplace Relations Act, 2015.

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The changes to Commission were first restructured in 2017. That period is manifestly outside any cognisable period open to me under the Act. My discretion to expand the 6-month statutory time limit allows me to apply a 12-month extension from the date of contravention if I can be sure that “reasonable cause “for the delay prevails.

This claim before me was received by the WRC on 25 November 2019.

I accept the complainant’s evidence that she raised her poor financial circumstances with the respondent on her return to work in November 2018. Her extended absence on sick leave had brought the changes on the timing of commission pay into sharp focus and she had sought some help.

The changes that followed in February 2019 were described by the complainant as unilateral and were imposed by her line manager. Implementation was immediate, and she was not notified in writing.

This brings the date of the alleged contravention to February 2019. The respondent was not able to identify the date where pay increased and commission was redrafted.

I have considered both party’s presentations on reasonable cause. The Labour Court established the test on the application of reasonable cause in Cementation Skanska v Carroll in WTC 0338 in 2003.

The burden of proof is on the complainant to establish that there are reasons which both explain and afford an excuse for the delay.

“there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the court, as a matter of probability, that had those circumstances not been present she would have initiated the claim on time.”

I have given a lot of thought to the request to extend time to incorporate the alleged contravention in February 2019.

I noted that the complainant raised the issue of confusion which flowed from the changes in her terms of employment which varied the January 2014 statement by email on 8 May 2019. Shortly afterwards, she received a revised contract and revised handbook. The handbook set out a veritable pathway for the complainant to resolve this confusion internally. I appreciate that the complainant was on sick leave, but she continued this communication electronically up until her resignation dated 31 October 2019. By then, she acknowledges that she was in receipt of legal advice on her employment.

In Ballina more Nursing Home / Raicam Holdings ltd and Aster Kassa Guinan EET/152/2015, the Labour Court considered submissions made in pursuance of “reasonable cause “delay. The Court was satisfied that the complainant knew that she had grounds for taking a claim which was presented 5 months out of time. The court went a step further by acknowledging that the complainant also knew that the claim would be defended. Legal advice was available to the complainant. The Court did not grant an extension on “reasonable grounds” as the Test in Skanska had not been made out.

In the instant case, I find that the complainant was in sporadic electronic contact with the respondent from May 2019 onwards. It was clear that the respondent did not agree on the notification of the changes as they submitted that the oral notification was clear and favourable to the complainant.

I have not identified a cogent explanation or excuse for the delay in submitting this complaint to the WRC. I find that while I understand the complainant’s dissatisfaction with the changes of terms in February 2019, I find that her way was open to a much earlier submission of complaint before November 25 later that year.

I cannot grant the extension in time sought.

I find the claim to be not well founded.

CA-00032459-004 Claim for Constructive Dismissal

The Complainant has submitted that she had to leave her job because of the way she was treated. She was dissatisfied at the Company’s failure to respond to her stated issues and pointed to a systemic failure which resulted in a dissipation of trust and confidence within the employment relationship which prompted her involuntary resignation in October 2019.

The Respondent has contested this and has submitted that every effort was made to assist the complainant in a restorative and dignified return to work. This process concluded through the complainant’s decision to leave in October 2019.

Section 1(b) of the Unfair Dismissals Act defines constructive dismissal as:

b) the termination by the employee of her contract of employment with her employer, whether prior notice of the termination was or was not given to the employer, in 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

The burden of proof, which is high, falls on the complainant to satisfy the burden of proof that her resignation was involuntary.

The test was established by Lord Denning in Western Excavating ltd v Sharp [1978] ICR 221 and consists of

1. The contract test: whether the employer is guilty of conduct which is a significant breach going to the root of the contract 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.

This requires that I consider the prevailing contract in the case.

2 the reasonableness test: whether the Employer conducts himself so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.

This requires that I analyse the employer’s behaviour and to a lesser extent that of the employees under the umbrella of reasonableness.

As I have stated previously, the document issued to the complainant dated January 20, 2014 fell far short of a sound foundation document of employment. I accept the complainant’s evidence that she did not receive supplementary documentation from the respondent in the intervening years. However, I find that she was issued with a revised contract and staff handbook during May 2019 as this is confirmed by her in an email to Mr X dated 29 May 2019. I appreciate that the contract remained unsigned, but the staff handbook was a comprehensive document capable of assisting her in navigating through her stated issues.

In my consideration of this case, I was struck by the complainant’s frustration at not being heard in relation to problems with her salary, designation of holidays on pay slip and about commission pay and a desire to diversify her role post-surgery.

It is implicit in all contracts, oral and written that Trust and Confidence applies to both the employer and employee.

In the Supreme Court case of Berber v Dunnes Stores ltd [2009] IESC 10, the Court considered:

“As to whether conduct amounts to a repudiation of the contract the ordinary law of contract applies: the cumulative effects of the acts complained of much be such to indicate that a party, in this case the employer had repudiated the contract “

The Court set out a test to assess this conduct:

1 The test is objective

2 The test requires that the conduct of both employer and employee be considered.

3The conduct of the parties and the accumulative effect must be looked at.

4 The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly to determine if it is such that the employee cannot be expected to put up with it.

I have assessed the conduct of both parties. The complainant had an extended period of absence in 2018 to facilitate surgery. No medical evidence was advanced in relation to this period or the implications for work post-surgery. However, I am clear that the absence prompted the complainant to reflect on the suitability of the role both financially and practically to her. She had taken a hard-financial blow by not receiving salary of commission during her absence. This was a universal practice at the company. She was surprised when she was not immediately heard on her projected solutions by the respondent. The Complainant formalised an agenda that she had sought to address since November 2018, and this led to an extensive rectification and retrospection of annual leave and public holiday pay going back over 4 years. An explanation on the working of Commission was also offered.

She also raised some frustrations around her safety, health and welfare at work in addition to a “fraught “relationship with her line manager of two years. I found that the respondent prioritised responses to these issues by email and went one step further by suggesting engagements internally and when that was deemed unacceptable by the complainant proposed an external HR Manager as an intermediary.

I read every email exchanged between the parties. The complainants were tempered with a sense of frustration, exclusion and a profound reticence to engage with her managers. The respondents were tempered with concern and a stated restorative agenda. I found that all issues surrounding terms and conditions were addressed at least and the complainant received a large retrospection, albeit sporadically. The complainant confirmed at hearing that by the time of her decision to resign, she was not owed any money by the respondent.

Electronic mail, in my opinion is marvellous for a one-sided message but it is not a tool that we can safely rely on to resolve staff relations issues in any great depth. There is no substitute for a face to face engagement with support/representation on both sides. It is regrettable that the complainant decided not to accept the repeated offer for engagement led by the respondent. I can only assume her level of personal hurt precluded her advancing along that path. It is also regrettable that she did not seem to benefit from other managers supports as meetings at work seemed to be on a 1:1 basis.

I did not have any minutes from the meetings which preceded the complainants sick leave in 2019. The complainant submitted that the engagements were disrespectful. The respondent disagreed. For my part, I can accept that the complainant was distressed and had got somewhat “lost “on her return from sick leave.

However, in my observation of the respondent emails from May onwards, I found that the complainants’ issues of May 2019 were actively prioritised, accompanied by a language of accommodation and underpinned by repeated requests for her to resume her position by whatever means possible. The respondent clearly wanted the complainant to return and sought her input to realise this.

While I have found that the complainant did not have the benefit of a robust foundation document of employment, I must accept that annual leave on commission pay/sick leave was resolved in full for her during her employment.

I have not established that a repudiation of contract occurred in this case. The claim under the contract test cannot succeed.

I must now consider the facts under the reasonableness test.

Once again, I have reflected on the evidence adduced and the dossier of emails submitted in the case. I can accept that the complainant commenced sick leave in May 2019 as an aggrieved employee. Very promptly after that she set out her list of concerns to be addressed in an email of 8 May 2019. The respondent engaged in the thread of emails but soon sought to meet with the complainant to engage on her stated issues. The complainant desisted saying that she found a proposed engagement stressful but did not support this with collateral outside sick certs which cited a medical condition. She did make references to stress in some of the emails and I can accept that she was stressed.

However, I have found that the complainant began to compile a dossier of documents from the respondent from May 2019 onwards. On an objective analysis, the pattern of email exchange reads like a preparation for exit but at the very least, it should have been enough information to guide her in seeking to resolve her issues with the aid of the staff handbook and go back to work. Instead the resultant emails from the complainant’s perspective at least read very much like “the long goodbye” It may well be that the complainant had decided that she was not prepared to return to work for her own reasons. However, the law on Constructive dismissal in the main, requires that internal procedures are exhausted prior to resignation. Ms Cormack V   Dunnes stores UD/1421/2008 and Conway V Ulster Bank, UD 474/18.

The complainant has asked that I consider that she was given “the run around “by the respondent to a point that made her continued employment untenable. I can accept that a certain frustration existed around the episodic payment of annual leave and the changes in commission. I accept that details of commission were not clearly delineated in an employment document.

However, it remained important for the complainant to see these issues through. I note that she attended the Medical review in September 2019 but did not follow through on the clear recommendations to meet with her employer. She did not contest this with medical evidence of her own.

However, it is the complainant’s response to the repeated offers extended by the company to meet with the external HR practitioner that I have struggled with. I appreciate that the facility of external Human Resources is not outlined in the staff handbook, but I accept the respondent bona fides in commissioning her service. This lady was announced as a witness at hearing, but the respondent did not call her.

I asked the complainant why she decided not to engage with this Practitioner? and she told me that she did not think she would understand. This does not place the complainant in a problem-solving mode intent on exhausting internal procedures and I have found it fatal to her case. I also found a certain ambiguity in the complainant’s notification of resignation. I suspect that the complainant had formulated a plan to relaunch with a new employer by then as she commenced work 3 weeks post her date of termination. I note that I received post hearing medical certificates of the complainants period of illness up to November 2019. The respondent had submitted that the last cert received by them was September 3.

However, I am not happy with the silence in which the respondent received the complainant’s resignation. Given her prolonged sick leave, and the efforts already recorded, I would have expected the respondent to reach out to the complainant, one last time by way of a positive obligation. in Moy v Moog ltd [2002]13 ELR 261, the EAT was critical of an employer who did not consider “why the complainant had handed in her notice after returning from sick leave. A fair-minded employer would have considered this and appraised itself fully of the complainant’s medical history “

On balance, I accept that the respondent was in receipt of the complainant’s medical history up to September 3 and subsequently by way of Occupational Health report, but a 14-year employment was permitted to drift silently away. This is not best practice and contrary to the staff handbook on notice.

In conclusion, I have found that the complainant has not satisfied the burden of proof in the reasonableness test. I cannot accept that her termination was of an involuntary nature.

This has been a very sad case and one that both parties may well reflect on how if possible, the circumstances of the case could prompt some learning going forward. I have no doubt that the complainant was a successful sales person and I hope she doesn’t lose sight of that. I also have no doubt that the respondent did not want to lose her. The role of a contingency in case of prolonged sick leave may be an aspect for consideration.

However, I must now confirm that I have found for the respondent in the case. The complainant has not made out her claim for constructive dismissal.

The complainant was not unfairly dismissed in accordance with section 1 of the Act.

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00032459-001 National Minimum Wage

Section 26 of the National Minimum Wage Act ,2000, requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the complaint to be not well founded.

CA-00032459-002 Terms of Employment

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found that the respondent engaged in a continuous breach of section 3 of the Act. I order the respondent to pay the complainant just and equitable compensation permitted under the Act.

As the complainant had variable earnings, I just that sum to be €3,066.35 to be paid in compensation which amounts to the sum of 4 weeks pay paid in April 2019, her last moth of full work.

CA-00032459-003 Terms of Employment (notification of change)

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found that this claim is outside the statutory time limit outlined in Section 41(6) of the Workplace Relations Act, 2015 and I have not established grounds to apply an extension in accordance with section 41(8) of that Act.

CA-00032459-004 Constructive Dismissal

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.

I have found that the complainant was not unfairly dismissed.

National Minimum Rate of Pay, Terms of Employment, Notification of Change in Terms of Employment, Constructive Dismissal.