ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00017709

Parties:

Complaints:

Date of Adjudication Hearing: 1/03/2019 and 09/09/2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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 refers to an unfair dismissal due to the alleged behaviour of the Respondent which amounted to constructive dismissal on the 19th of October 2018 where the Complainant maintained he had no option but to resign his job.

The Complainant also raised the complaint under the Payment of Wages Act indicating he did not receive his payment lieu of notice which amounted to €2,140 and he also raised a complaint under the Payment of Wages Act for an underpayment of wages when he was awarded a pay rise of €300 per month in May 2018 but never received this pay rise from May 2018 until October 2018.

The Respondent refuted that the Complainant was unfairly dismissed and maintained that the Complainant left his employment and resigned by way of letter on the 19th October 2018. The Respondent also denied that the Complainant was due a month’s notice as he resigned his position, and that the complainant was not paid €300 per month from May until October as alleged stating that he was not entitled to these payments.

Summary of Complainant’s Case:

The Complainant maintained that he commenced employment with the Respondent in May 2016 as a Senior Technical Business Analyst. He advised that he commenced his employment following a college placement with the Respondent for 14 weeks from January 2016. When he finished his college placement, he was offered a part-time position which he took. The Complainant advised that on the 1st of June 2017 he received a full-time contract. He submitted that he was on a salary of €35,000 per year.

CA-00022891-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant submitted that following a period of employment of approximately 2 days a week from May 2016 to May 2017 he was offered a full-time position with the organisation.

He advised that not long after being appointed to this role that he experienced difficulties regarding and on boarding of a client. He advised that it was not clear to him that the data being provided by the client could work and therefore he needed more clarity as he was in charge of the implementation plan for the client. The Complainant maintained that the client was not prepared to upgrade software to facilitate the completion of the on boarding so he was not in a position to complete the work. He maintained that he was wrongly blamed by the Respondent for this matter.

Issues in June 2017

The Complainant submitted that he became concerned in June 2017 when he was on a business trip with a workgroup to New York in June 2017. When the group arrived in New York they had difficulty in locating their accommodation and the CEO was not contactable for some hours which caused stress for the workgroup. In addition. the Complainant submitted that the trip involved some heavy drinking sessions and as he did not participate, he began to feel isolated. The Complainant also maintained that he was not provided with sufficient expenses for the trip and described the approach of the respondent to be reckless, and such recklessness was to be a feature of his employment.

The Complainant contended that he was asked by the founder and CEO of the company to mind his house and dog when the CEO was travelling on business and holidays to America in June 2017. The Complainant felt this meant extra responsibilities and as he was concerned about the boundaries regarding this request so he declined. The CEO remained in the USA from June to August 2017.

Issues in July 2017

The Complainant indicated that on the 28th of July 2017 he would have emailed the CEO regarding client issues and his email was ignored. He also maintained that difficulties were emerging between the CEO and the Chief Technical Officer (CTO) who was also a co-founder of the business. At this time the Complainant had concerns with the strategy of the business and he would have recognised the business was under pressure. The Complainant maintained that his concerns, and the concerns of the CTO were ignored, and this was also to be a feature of his employment which made him feel marginalised and ignored.

The Complainant submitted that in an email of 28th July 2017 to the CEO he set out concerns that he had about the business. These matters included concerns that his opinions were not being listened to; that he was feeling marginalised and ignored; that he had reservations with regards to the implementation plans for a client; that he had reservations about the business extending to Australia; and that he had concerns with regards to technical capability for coding and the CEOs lack of knowledge on what the company’s software could and could not do. The Complainant also expressed gratitude in the email for the opportunity that he was provided by being employed during his last year in college, and for the opportunities in developing products for the company.

Matters came to a head between the Complainant and the CEO following the email of 28th July 2017 regarding client issues, and where the Complainant contended the CEO failed to understand the pressures and failed to address his concerns.

Allegation of being dismissed in August 2017

The Complainant submitted that the CEO failed to address the core issues regarding the strategy, and this remained a concern for the Complainant. The Complainant maintained that in August 2017 after the CEO returned from America, the CEO started to push blame onto the Complainant regarding the client issues that had occurred in July 2017. The Complainant submitted that on the 30th of August 2017 he was told by the CEO that he was fired.

The Complainant submitted that his initial probation period was due to end in November 2017. The Complainant had a meeting with the CEO on the 29th of August 2017 and at this meeting he was advised by the CEO that the CEO was not too sure what work was available for the Complainant and that the CEO did not want passengers in the company. On the 30th of August 2017 he had a further meeting with the CEO and the CEO outlined that the Complaint’s position was to be terminated and he was to be given one months’ notice. The Complainant left work at that stage but within a week he had been reinstated due to representations made by the CTO.

In his evidence the CTO confirmed that the CEO had sought to dismiss the Complainant. The CTO outlined that the Complainant had good technical skills and that he told the CEO this could not happen. The CTO submitted that he advised the CEO that the company needed proper HR structures. Despite this advice the following day the CEO told the CTO he had let the Complainant go. The CTO advised this should not have happened and it would take time to hire a replacement. The CTO stated that the Complaint was re-hired.

Revised Contract of Employment in September 2017

The Complainant advised that on the 18th of September 2017 he was issued with a revised contract of employment that referred to a salary of €30,000 and a change of work location. However, he was concerned that this contract was only for a six-month period and he did not sign it maintaining that the permanent contract that he had been issued in May 2017 was the contract that applied. The Complainant also submitted that his car place had been taken off him and was given to another member of staff.

He advised that it was also agreed between himself, the CTO and the CEO that he could do other work outside the business. The Complainant advised the CEO on the 2nd of October 2017 that he had been asked to complete some web development work for another organisation and that the CEO had responded by text to say that this was ok. (In his evidence to the Investigation the CTO did not know about that arrangement).

Being Ignored (Client Work in October 2017, Tech Support in January 2018, Changes to the Website in February 2018, and Comments not properly Minuted at staff meeting in February 2018)

The Complainant submitted that in October 2017 he had planned to attend a block change conference in October 2017, but he was not invited to attend this, and the company sales team went instead.

The Complainant submitted that there were no issues for a number of months, but in January 2018 a sales demo took place in Paris that was attended by some of the team and the Complainant was asked to be available from Ireland for a technical conference call should technical advice be needed. However, he never received a call from Paris and maintained that he was unreasonably left out of this process.

The Complainant advised that on the 15th February 2018 changes had been made to the company’s website and he had not been advised of this matter despite the website being part of his responsibility. He stated he felt aggrieved when he was not told about the changes, where the work had been completed by a member of the sales staff.

The Complainant then maintained that on the 21st February 2018 a staff meeting was held where discussions took place about a crypto currency strategy for the company. The Complainant maintained he had concerns with the strategy and discussions took place between himself and the CTO about this. He viewed the strategy that was being adapted was not right for the company and whilst his comments were not initially minuted in the meetings he subsequently had them minuted. He submitted this represented further isolation for him.

Failure to Provide Suitable Laptop

At this time the Complainant also advised the CEO that he was having difficulties with a laptop he was working with. As the laptop was under the specification required for the Complainant to do his work, he sought a replacement and submitted that the CEO advised that he could have a loan of a laptop. The Complainant maintained the laptop to be provided on loan was not suitable for the work at hand.

The Complainant continued working with his own laptop which by April 2018 had become too slow, so he again asked for a replacement laptop, but he was only offered between €500 and €700 to replace the laptop. The Complainant advised that this was an insufficient amount to buy a laptop suitable for the work in hand, so he did not pursue the purchase of a replacement laptop at that time.

The Complainant advised that on the 14th of May 2018 he again mentioned the need to replace the laptop but again only €500-€700 was offered. The Complainant maintained there was a lack of investment in technology in the business whilst there was lot of spending on trips and travel. The Complainant informed the CEO that the amount offered for a replacement laptop was not acceptable. The Complainant maintained that having to work with a laptop that was too slow was impacting on the timelines to complete his work

Pay Rise in May 2018

The Complainant advised that on the 10th of May 2018 he had a meeting with the CEO where the CEO offered him a pay rise to €35,000. He advised that there were no other conditions related to this pay rise, and that he was also offered €100 in cash per month to cover his expenses for his travel. The Complainant advised that whilst he received a €100 for his expenses, he never received the pay rise as promised which was €5,000 per annum, amounting to approximately €300 per month.

Meeting of 28th May 2018

The Complainant advised on the 28th May 2018 his pay was two days late and he did not receive the pay rise that he had been promised on the 10th of May 2018. He advised that he was told by the CEO at that time that his “discretionary pay rise” was being put on hold due to his behaviour and performance, and the CEO had told him he did not like his attitude about the laptop and did not welcome the Complainant’s comments on the company’s strategy. The Complainant contended that he would have expressed his opinion on the strategy in February 2018 as he was asked to attend a meeting at that time where strategy was being discussed. He was concerned that these matters were now being raised by the CEO.

The Complainant submitted that at the meeting on the 28th May 2018 the CEO also referred to comments the Complainant had made on social media and where members of the team had found these comments offensive. The Complainant maintained the comments referred to would have been normal correspondence he was having with his colleagues on WhatsApp. The Complainant maintained that the WhatsApp comments were in response to observations that had been made by others on WhatsApp and that he did not initiate the correspondence.

The Complainant maintained that he was also advised by the CEO on 28th May 2018 that his quality of support for a client, which was the only client the Complainant was working with at that time, was not of the required standard. The Complainant refuted that there were any issues with the quality of the support he was providing to the client.

The Complainant advised that he responded to these issues by venting his frustration at the situation where he was left without a laptop that was capable of allowing him complete his work. He also advised the CEO that the CEO’s comments were very much at odds with the excellent working relationship that he had with the CTO and cultivated with the client. The Complainant maintained that he also had received an earlier message of support from the CEO and the CTO. The Complainant maintained that no further communication was received from the CEO about the issues that were discussed on 28th May 2018.

Client data issue in June 2018

The Complainant advised on the 19th June 2018 he was asked to complete a questionnaire for data relating to another client that was to pilot a product being developed by the company. The Complainant maintained that the information he received about the client did not have the relevant details and that the data provided was not sufficient for the work to be completed. The Complainant advised his colleagues of this matter at the time and that the CEO responded stating that he wanted the questionnaire completed by the close of business as the matter was urgent and there was to be no excuses. There was an exchange of emails between the Complainant and the CEO with regards to the difficulties the Complainant was experiencing in completing this work.

The Complainant also submitted that the CEO referred to a new tech team that was being brought in which was news to the Complainant. The Complainant asked the CEO where these arrangements left his role in the business but he did not receive a response. The Complainant said he was subsequently not invited to the client meeting.

Issues Relation to Passwords in July/August 2018

In July 2018 the Complainant advised that a new person was brought in to take over the duties of the CTO. On the 24th July 2018 the Complainant was asked by the CEO for passwords to access a demo model that was being developed with a client. The Complainant submitted he was unable to log in as he understood the passwords had been changed by the person who took over the CTO’s role. The Complainant responded by email to the CEO advising of the difficulties he was having with regards to the change of the passwords.

The Complainant advised that on the 31st July 2018 he was asked by the CEO to create a new blank version of software that they had been working on. The Complainant maintained that he still did not have access to the system and the dispute between himself and the CEO regarding the password continued. The Complainant subsequently advised the CEO that he could access the software when he got the password, but he needed time to set it up.

On the 4th of August 2018 the Complainant received an email from one of his colleagues to create a new user for the system. The Complainant responded that due to the password issues he did not have access and was locked out of the system. At that time the CEO intervened by email advising that the password had been changed and accused the Complainant or the former CTO of changing the password. The Complainant advised that what had occurred was that the domain name had lapsed and had not been renewed by the CEO and that was what had contributed to the problem.

In the course of the correspondence with the CEO the Complainant submitted that the CEO advised the Complainant in an email that for the avoidance of any doubt of how seriously the company takes the issue I have copied our company lawyers [on the email]. The Complainant responded to the CEO and advised that he did not like the acquisition that he may have changed the password and referred to the CEO copying the company’s lawyers in the correspondence. The CEO responded advising the Complainant that the company had served a high court injunction on the CTO for shutting down its software versions of products and that the matter was to be resolved through the courts. The Complainant maintained he was unaware of any high court case. Consequently, the correspondence from the CEO was of concern to him, particularly as the emails involved threats of legal action.

The Complainant submitted that that the CTO had left his post but that the Complainant had never been informed of this and was not aware of any high court action. The Complainant believed the CTO was still involved in the business but was no attending work and was no longer the Complainant’s line manager at this stage.

As a result of his concerns and the correspondence received from the CEO, on the 6th August 2018 the Complainant emailed shareholders about his concerns and about what was happening. He advised the shareholders that he would be speaking with his solicitor and sought their response in relation to what he alleged he had experienced. He received no response to this correspondence.

Sick Leave of the Complainant

On the 9th August 2018 the Complainant emailed the CTO regarding a threat of High Court action and in light of what he was experiencing informed the CTO he was parting on sick leave. The Complainant maintained he received no reply from the CTO. In his evidence to the within hearing the CTO confirmed the relationship between himself and the CEO had broken down and it was subject to a high court process. The CTO did advise the Complainant to get his own legal advise.

The Complainant remained on sick leave from this point and did not return to work. On the 20th August 2018 he received an email from the CEO with a request for log in to the email system. The Complainant advised that as he was on sick leave over this period of time he was not accessing his emails and had been advised not to do so.

The Complainant submitted that on the 4th of September 2018 he received an email on his personal email account from the CEO, a copy of which was copied by the CEO to the firm’s lawyers. In this email the CEO stated that for the final time I will ask for this nicely referring to his request for the administration passwords. The Complainant advised that he would have emailed the CTO advising how to resolve the matters and he would have also received 3 calls from the CEO at this time. He maintained he was still on sick leave and had been advised by his doctor not to engage in workplace activities due to the anxiety and stress he was experiencing.

The Complainant advised that on the 20th September 2018 he received an email from the company’s solicitors to his personal email account. At the time the Complainant was with the Department of Social Welfare sorting out his sick benefit payments. He advised he was not expecting a solicitor’s letter and when he received it he “expected the unexpected and was very concerned with this response”. He submitted that the solicitors commented that his actions were putting the business and the livelihood of its employees at severe risk. This statement was of grave concern to the Complainant as the issue regarding the passwords were not of his making. He replied that he would provide the passwords as soon as he could that day, and maintained when he received the email that his anxiety and panic returned, and it was worse than ever. The Complainant was of the view that matters could be logically explained without the need to involve solicitors. The Complainant responded to the solicitors stating that he was off work due to work related stress caused by the CEO’s threating manner and unreasonableness. He also advised the solicitor that due to his illness he was not checking his work email, and that as he did not know the solicitors personally, he would only supply the information requested in secure manner.

At that point the Complainant realised that matters seemed to be with the domain name that had expired on the 5th September 2018, and he advised the solicitors that this was due to a non-payment of the renewal of domain register by the CEO. The Complainant also advised the solicitors that he was putting on record that it was on his doctor’s orders he was to ignore any work emails and communications from the CEO due to the levels of stress and threats therein, which included alleged actions of putting the business and the livelihood of the employees at risk. The Complainant maintained the CEO did not reflect any concern for his health. The Complainant further advised the solicitor that he may be logging a complaint to the WRC on this matter in the very near future. The Complainant maintained that this correspondence was not responded to.

The Complainant advised he remained shocked and was feeling suicidal as a consequence of what happened. Despite raising his concerns about the lack of resources and other issues throughout the year there was no offer of any support or response coming back from the Respondent. The Complainant advised that his sick leave had been extended to the 22nd October 2018 as matters had been exasperated at this stage.

He advised that on Friday 19th October 2018 he was preparing to go back to work but he was of the view that he could not do so and therefore resigned his position. He maintained that the reason for his resignation was due to the lack of the Respondent to provide him with proper resources; the response by the CEO with regards to genuine issues the Complainant had raised during the course of his employment; the broken promise regarding a pay increase May 2018 but being told at the end of May without any grounds that the CEO had issues or concerns with the Complainant’s attitude and behaviour; and then subsequently being blamed for missing passwords, threats of high court action and receiving a solicitors letter for a matter he was not involved with.

The Complainant maintained that despite raising his concerns in correspondence in September 2018 he received no further response from the Respondent. He therefore had grave concerns about returning to work and he and no option but to resign his position rather than to experience further stress and anxiety.

Following his resignation, the Complainant heard the CEO provided a public podcast and in the course of the podcast the CEO referred to the improvement in the business because they had replaced some of the tech team over the last year, and where the CEO stated that this had been great. The Complainant maintained that he was the only member of the tech team and for the CEO to have made this statement publicly indicated to the Complainant that it was always the intention of the CEO to terminate the Complainant’s employment and dismiss him, which the CEO had attempted to do in August 2017. Having heard that statement from the CEO the Complainant believed that his decision to resign was the correct one.

Legal Argument

Referring to jurisprudence, the Complainant submitted that the UK Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the tests of contract and reasonableness were laid out. In the within case the Complainant maintained that the contract test as referred to in Berber v Dunnes Stores [2009], is objective and requires that the conduct of both the employer and the employee be considered, that the conduct of the parties as a whole and the accumulative effect must be looked at, and that 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 in order to determine if it is such that the employee cannot be expected to put up with it.

The Complainant submitted that the Respondent had breached the implied terms of mutual trust and confidence in his contract of employment and where he was initially dismissed in August 2017 without any formal or informal process taking place. Subsequently he would have raised his concerns to the CTO who was his line manager but where the CEO continued during 2018 to treat the Complainant unreasonably as outlined in the above submission. In light of the alleged disregard the CEO had towards the company’s disciplinary procedures in unilaterally dismissing the Complainant in 2017; the lack of response to the concerns raised by the complainant during 2018; and the correspondence of legal threat that he received from the CEO in September 2018, the complainant maintained that he had no trust or confidence in the respondent and therefore could not progress his complaint through the grievance procedures. The Complainant further maintained there was no written grievance procedure in existence. Furthermore, in light of the nature of the correspondence from the Respondent's solicitor the Complainant maintained he had no option but to resign his position in October 2018.

The Complainant maintained that the actions and omissions of the Respondent demonstrated that the reasonableness test, as laid out by the Employment Appeals Tribunal in An Employee v An Employer [UD1421/ 2008], was breached by the Respondent and left the Complainant with no option but to resign his position.

The Complainant maintained he has been unable to find work since his dismissal. He had applied for an IT project manager but was not successful and applied for another role and had not been successful. He advised that he completed a part time post grad program however he was available for work during these studies but found it difficult to find work. The Complainant further submitted that he had returned to college and was not always available for work due acting as a carer for a family member. He provided confirmation that he applied for a job on 4th August 2020.      

CA-00023947-001 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Complainant maintained that when he handed in his resignation on the basis that he had no option but to resign in light of the unreasonableness of the Respondent, he was told by the CTO that he did could leave and did not have to serve his notice and that he was entitled to receive payment in lieu of his notice. The Complainant submitted that he would have worked the final month had he not been told that he did not have to do so by the CTO. He was there seeking payment in lieu of his notice.

CA-00023947-002 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Complainant advised that on the 10th of May 2018 he had a meeting with the CEO where the CEO offered him a pay rise to €35,000 and that there were no other conditions related to this pay rise. The Complainant also maintained that he was also offered €100 in cash per month to cover his expenses for his travel. The Complainant advised that whilst he received a €100 for his expenses, he never received the pay rise as promised which was €5,000 per annum.

The Complainant advised on the 28th May 2018 his pay was two days late and he did not receive the pay rise that he had been promised. He maintained that he was told by the CEO at that time that his “discretionary pay rise” was being put on hold due to his behaviour and, and the CEO had told the Complainant that he did not like the Complainant’s attitude, and did not welcome the Complainant’s comments on the company’s strategy.

The Complainant also advised that due to the damage to his own laptop he was seeking compensation for a replacement laptop which cost him €1,500 but for which he was never provided payment for.

Summary of Respondent’s Case:

The CEO attended with two witnesses at the first hearing (the Head of Business Development and the Head of Product ad Technical Innovation). The CEO was no longer working with the Respondent at the time of the second hearing and had been replaced. The new CEO attended the second hearing.

The respondent denied the allegations and advised that the CEO had set up the company with the CTO with a focus on establishing a software solution company for the financial funds compliance and governance industry. The Respondent hired the Complainant in January 2016 as a placement student from an Institute of Technology for business development. Initially there was a very good relationship with the Complainant where the placement was finished in May 2016 but the Complainant decided to remain on a part time basis. In June 2017 the Complainant was offered a full-time position as investment funding was secured.

CA-00022891-001 Complaint seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977

The Respondent submitted that it did not dismiss the Complainant and that the Complainant resigned his position on 19th October 2018 without notice.

Issues in June 2017

The Respondent maintained that during the summer of 2017 the company was experiencing difficulties in implementing its business plans, it had opened an office in the USA, and the CEO was located in the USA for two months during the summer of 2017 working on a pilot project.

The Respondent denied there were issues regarding the trip to New York, indicating the trip was successful and where the Complainant was very sociable. The Respondent submitted that the first it became aware of the Complainant being upset about issues on this trip was when he made the within complaint. The Respondent further stated that the Complainant had forgotten to bring his medication to New York and as a result the Respondent provided €400 to the Complainant so he could get his medication.

In response to the request by the CEO for the Complainant to mind the CEO’s home when he was away in America in June/July 2017, the Respondent maintained that the Complainant and the CEO had a good relationship at that time and as the CEO was asked to bring his family to America he did not believe there was anything untoward in asking the Complainant if he would like to house sit for the period. The Complainant initially declined but just before the CEO departed, the Complainant had changed his mind; however, at this stage the CEO had found another person to house sit.

The Respondent submitted that its Head of Business Development had been discussing the onboarding of a client with the Complainant and a list of client requirements was listed. The Respondent maintained at this time Complainant expressed concerns and said that he would not be in a position to support the request.

Issues in July 2017

The Respondent submitted that during July/August 2017 the Complainant was responsible for managing a client but as he was not up to the task the CEO replaced him with another staff member. However, the project failed which was a devastating blow for the company. The Respondent also submitted that the Complainant was not supportive of the implementations that were required for the client and indicated that at that time the Complainant was not being reasonable in supporting the business strategy and plans.

The CEO also submitted that another employee had raised concerns with him about the Complainant sending multiple messages to other members of staff who felt uncomfortable about the messages, referring in particular to messages members of the team would have received in New York. The Head of Business Development in his evidence stated the messages contained pictures of women and he would have reported this a few days later to the CEO asking the CEO to ask the Complainant to stop doing this, and no further messages were received from the Complainant. The CEO submitted that when he returned from America, he spoke to the Complainant about this where the Complainant assured him that the messages would be discontinued.

Allegation of being dismissed in August 2017

The CEO returned form the USA on 29th August 2017 and as the pilot project failed, he sat down to discuss issues with the Complainant. The CEO did not recall telling the Complainant that he was to be made redundant. The Respondent submitted that in light of the pilot project failing the CEO did not think the Complainant was suited to act as implementation manager, so he was offered other roles. However, the Complainant refused to look at other roles so the CEO reluctantly let him go at the end of August 2017, and offered him two months’ salary, and offered to help him get another job.

Revised Contract of Employment in September 2017

The CEO advised that the CTO raised concerns about the Complainant being dismissed and following this the Complainant was reinstated in September 2017 on an increased salary. The matter regarding car parking was also resolved. The Complainant was then involved in coding work and was facilitated with working from home. The Respondent submitted it was not aware that an arrangement had been made between the Complainant and the CTO that he could do work outside the company. (The Complainant contested this explaining screen shots would show that the CEO was aware of this arrangement).

Failure to Provide Suitable Laptop

The Respondent maintained that it had provided the Complainant with a laptop and had offered him funding to upgrade the laptop but the Complainant rejected the offer in an abusive email to the CEO.

Pay Rise in May 2018

The Respondent submitted that the Complainant was given a new 6-month contract on a higher salary and with a €1,000 bonus until September 2018. This was rejected by the Complainant and the Respondent then offered the Complainant an increased salary of €5,000.

Meeting of 28th May 2018

The Respondent submitted that it had received a complaint regarding the Complainant’s performance with clients and about his use of the WhatsApp messaging during the year and he discussed these issues with the Complainant at the meeting in May 2018.

Client data issue in June 2018

The Respondent submitted that within a couple of weeks of offering the Complainant with a pay rise the Complainant’s work was subject to multiple complaints from clients, and the CEO was also unhappy with the tone of the Complainant’s emails and response to his offer to replace the Complainant’s laptop. The CEO also submitted that he was unhappy with the Complainant’s comments on a WhatsApp messaging conversation that was heavily abusive and insulting to staff regarding a client.

Issues Relation to Passwords In July/August 2018

The Respondent submitted that the CTO had shut down the software server for live clients and their investors. As a result, the Respondent had to take high court action against the CTO. The CEO submitted that the Complainant was in no way part of that issue and the actions about this were taken against the CTO alone.

The CEO submitted that separate to the above issue the Complainant was the only employee who had access to the administration passwords for the website and emails. When the Complainant went sick on 9th August 2018, the Respondent had to contact the Complainant to get access to the system. The Respondent maintained that it had asked the Complainant for the password many times when he was on sick leave, but the Complainant did not respond to these requests. As the future of the company depended on this the Respondent deemed the matter to be important and therefore instructed its lawyers to contact the Complainant. The Respondent contended that within an hour the Complainant had responded and the passwords were returned.

Sick Leave and Termination of the Complainant’s Contract

The Respondent submitted that it was surprised with the resignation of the Complainant as the Complainant had previously used the grievance procedure to resolve the matter of his position in September 2017. It submitted the Complainant had not used the grievance procedure on this occasion. (It is noted the Complainant submitted there was no formal grievance procedure in place). The Respondent maintained it was not aware that the Complainant had a grievance at the time he resigned as he had not raised one.

The Respondent further submitted that the emails purported to have been sent to the CEO by the Complainant over this time have been changed/manipulated, in that dates, layout, tone and format have been changed. The Respondent maintained that it had to contact the Complainant when he was on sick leave to get access to the website password.

The Respondent submitted that the Complainant resigned on 19th October 2018 which was two weeks before his doctor had certified him fit to return to work.

CA-00023947-001 Complaint under section 6 of the Payment of Wages Act, 1991

The Respondent submitted that the Complainant resigned without notice on 19th October 2018. On that basis he was not entitled to his notice period. The Respondent submitted that it has paid the Complainant with his holiday entitlements

CA-00023947-002 Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991

The Respondent submitted that Complainant was offered a full-time position from June 2017 when he completed his studies. The Respondent advised that it had asked the Complainant for receipts for his expenses during his employment, but these were never received. The Respondent did not accept any wages were owed to the Complainant.

Findings and Conclusions:

CA-00022891-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.

The breach of a contract of employment is a very serious matter and which in cases of unfair dismissal, requires an examination of whether an employer acted fairly. This test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination. In cases where an employee breaks the contract and then seeks to pursue the employer for constructive unfair dismissal, as in this case, the bar is set just as high. The burden of proof, which now passes to the employee, is set at a high level.

Constructive dismissal cases are based on the entitlement test and the reasonableness test. Under the entitlement test the Complainant must succeed in arguing that he is entitled to terminate the contract on the grounds that the Respondent has breached a fundamental condition that goes to the root of the contract. In general, this arises where the actions of the Respondent demonstrate to the Complainant that the Respondent no longer intends to be bound by one or more of the essential terms of the contract of employment. Referring to the test being applied in Western Excavating (ECC) Ltd V Sharp (1978) as was applied further in Murray V Rockabill Shellfish Ltd (2012) ELR 331 a significant breach of the Complainant’s contract should be evident. In effect the question is whether it was reasonable for the employee to terminate his contract on the basis of the employer’s behaviour.

Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the Complainant’s resignation, and something that represents a repudiation of the contract of employment. In this regard the Supreme Court has said that: ‘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 in order to determine if it is such that the employee cannot be expected to put up with it.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61).

In relation to the employee’s behaviour, this normally refers to the efforts that a complainant makes to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery. Indeed, the EAT has made it clear in a series of decisions, as followed by the WRC Adjudication Service, that failure to use company procedures to address a grievance is a necessity in upholding complaints of constructive dismissal. In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

Having considered the issues and evidence presented, both orally and in writing for the within case, I am satisfied that the Complainant experienced significant difficulty from the Respondent where in particular this occurred in August 2017 when the Complainant was summarily dismissed by the CEO without due process but was reinstated following an intervention from the CTO. In addition, the evidence also supports that the Complainant experienced further difficulties in 2018, particularly from May 2018 where he was awarded an increase in his pay but where the Respondent failed to meet these obligations; where the CEO confronted the Complainant about his performance and attitude referring to issues earlier in the year that were never discussed with the Complainant contemporaneously; where the Complainant sought an upgrade in a laptop to complete his work which was supported by the CTO but insufficient funding was provided to him by the CEO; where the CEO made references to a new tech team and failed to clarify how this might impact on the Complainant’s position; and where the CEO accused the Complainant of possibly withholding a password and a threat of a letter from the Respondent’s lawyers. In the circumstance of the password it appears the Complainant was not responsible for that matter yet at the time the CEO was blaming him for a serious wrongdoing that had significant consequences for the business.

As a consequence of these experiences the Complainant took sick leave and during his sick leave, he wrote to shareholders of the company outlining his concerns, but that correspondence was unanswered. The Complainant also wrote to the Respondent’s solicitors following a letter from them and where the Complainant outlined specific concerns. The Complainant contended there was no grievance procedure and whilst the Respondent contested this, by stating the Complainant failed to submit a formal grievance, the Respondent failed to provide to the hearing a copy of the grievance procedure that it said existed at that time.

Nonetheless, having reviewed the Complainant’s correspondence to the shareholders and his correspondence to the Respondent’s solicitor, I find that that it is reasonable to conclude the specific issues raised by the Complainant amounted to a serious grievance that a prudent employer would have responded to. In light of the fact that the Complainant’s concerns were not addressed by the Respondent from August 2018, and where the Complainant had a previous experience with the CEO when he was summarily dismissed only to be reinstated, I find that under these circumstances the reasonableness test has been breached.   I find the CEOs behaviour was of such a nature that it goes to the root of the contract and broke any reasonable level of trust between the Complainant and the Respondent. The matter was perhaps recoverable when the Complainant reached out to the shareholders and the Respondent’s lawyers, but the Respondent failed to address the concerns.

I acknowledge there is disagreement between the parties in relation to the performance of the Complainant. However as no formal process was introduced regarding this matter it is unreasonable for the Respondent to seek to rely on the alleged performance of the Complainant in its response to the complaints.

Having carefully considered the evidence set out by the parties I find that the Respondent has behaved unreasonably towards the Complainant in dealing with his concerns and therefore conclude the complaint of unfair dismissal is well founded.

CA-00023947-001 Complaint under section 6 of the Payment of Wages Act, 1991

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. Section 6 of the Payment of Wages Act 1991 requires that I make a decision under the relevant sections of that Act.

The Complaints contract of employment entitled him to one month’s notice which he did not receive. The Respondent maintained the Complainant left by resigning without notice on 19th October 2018. As I have found he was unfairly dismissed, his dismissal occurred on that date, and where he did not receive his contractual entitlement to one months’ notice.

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

• the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

• the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

• in the case of a deduction, the employee has given his prior consent in writing to it.I therefore find that in accordance with Section 6 of the Payment of Wages Act 1991, that the complaint is well founded.

CA-00023947-002 Complaint under section 6 of the Payment of Wages Act, 1991

Based on the evidence provided I am satisfied the Complainant was awarded an increase in salary of €500 a month form 1st May 2018, and the Respondent accepted that it did not make that payment to the Complainant from 1st May 2018.

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

1. 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. Section 6 of the Payment of Wages Act 1991 requires that I make a decision under the relevant sections of that Act.
2.  the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
3. the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or in the case of a deduction, the employee has given his prior consent in writing to it.

I therefore find that in accordance with Section 6 of the Payment of Wages Act 1991, the Respondent was not entitled to deduct the monthly increase of €500 per month to the Complainant from 1st May 2018 to 19th October 2018.

I conclude the Complainant is well founded. I do not find that the Complainant is entitled for payment towards a laptop. He was offered an amount to upgrade his laptop, but he did not accept that.

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 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”In circumstances where the Respondent unreasonably failed to address the concerns raised by the Complainant, I am satisfied that the acts and omissions of the Respondent are the significant cause of the termination of the employment relationship. In relation to the Complainant’s mitigation of losses he stated he had unsuccessfully applied for an IT project manager and another role, has completed a part time post grad program, was not available for work due acting as a carer for a family member from October 2019 to June 2020, was on a job seekers allowance and recently applied for a job.  

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

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

As I have found the complaint is well founded as respects the deductions from the Complainant’s wages for the non-payment of his increase of €5,000 per annum, I direct the Respondent to pay the Complainant compensation of €2,404 after the making of any lawful deduction.

CA-00023947-002 Complaint under section 6 of the Payment of Wages Act, 1991

As I have found the complaint is well founded as respects the deductions from the Complainant’s wages for the non-payment of his notice period of one month, I direct the Respondent to pay the Complainant compensation of €2,917 after the making of any lawful deduction.

CA-00023947-001 Complaint under section 6 of the Payment of Wages Act, 1991

The Respondent is therefore ordered to pay the Complainant a total of €25,000 in compensation (subject to any lawful deductions).

In the Labour Court in case UDD1974 Philip Smyth and Mark Leddy, the Court set out that it must have regard to an employee’s effort to mitigate loss where “The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day while they are out of work, engaged actively in the pursuit of alternative employment. In the instant case no such evidence was produced, and the Court has no alternative but to conclude that insufficient effort was made to mitigate the losses incurred as a result of the unfair dismissal. In accordance with the requirements of Section 7 (2) of the Act this must be reflected in the compensation to be awarded”. Accordingly, in light of the actual efforts by the Complainant to find work, where there is no significant efforts demonstrated, I consider it just and equitable in all the circumstances to award the Complainant €25,000.

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

For the aforesaid reasons, I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent.

CA-00022891-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

1. • Workplace Relations Commission Adjudication Officer: Gerry Rooney                                                                                                        
   • Dated:   22nd January 2021