Complainant

Respondent

Anonymised Parties

Stocktake/Operations Manager

Stocktake Service Provider

Representatives

  Self

Caroline Lyons The HR Suite

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act,1969

01/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

01/04/2021

There are two disputes in this case. The first is a claim for non-payment of subsistence. The second is one of constructive dismissal. Both parties provided written submissions and oral submissions a t the hearing. The rate of pay was €673.08 per week. The date of termination was November 20th 2020. Other contractual matters are disputed. There is an issue regarding the ownership of equipment referenced by both parties but not taken into consideration in this recommendation.

Constructive Dismissal

The dispute and related claim of constructive dismissal are based on the failure of the employer to provide the employee with a statement of terms of employment. It is the position of the employee that promises made to him regarding his role and a shareholding in the Company were not adhered to. When he requested written responses to issues he raised the employer would not reply in writing despite the employee making it clear that he would leave if he did not receive these terms and assurances. He raised a formal grievance in writing on November 9th, 2020 which was not investigated or dealt with. In subsequent emails he raised other issues which also went without response or acknowledgement. He was unsure of the grievance procedure as he was unsure what policy was in place.

Subsistence Payments

In the course of his employment with the employer, the employee spent large amounts of time away from home travelling on behalf of the employer. Accommodation was always booked on a room only basis. Receipted amounts for fuel and tolls were refunded. However he was required to pay for all meals drinks and vehicle maintenance. Requests for these payments were made on multiple occasions while similar payments were made to other employees.

Constructive Dismissal

The employee is not covered by the Unfair Dismissals Act, however the substance of the case he must make it remains the same i.e. that he must be able to prove why his resignation was justified in the circumstances. The complainant was advised he could invoke the grievance procedure but failed to do so. The employee first threated to resign on November 5th.  He refused offers to discuss his grievance in meetings proposed by the employer to take place on November 12th and 13th 2020 and finished in the employment on November 20th.The employer behaved reasonably at all times as demonstrated by correspondence whereas the employee had options open to him other than to resign.

Subsistence Payments

The employee submitted claims for diesel used during his employment and these were paid in full. Any overnight stays in hotels were paid by the employer. There was never any agreement in place to cover other substance or to pay mileage in addition to diesel. Where acknowledging at the hearing that there were other daily rate arrangements in place -these were agreed and inserted in the contracts of other employees by the employee in this dispute who was responsible for those contracts.

Constructive Dismissal

It is accepted that the relationship between the parties deteriorated in time. It may well have been fuelled in part by the change in the employers own personal circumstances which led him to have more time to become directly involved in the business. The income of the business was not very significant by late November and it was losing more than it was generating by way of income. These are two possible factors which could explain why the employer was not providing answers to the employee’s questions in November, in writing. That is to say that the intentions and earlier promises made to the employee were not necessarily still in place as far as the employer was concerned. This conclusion is supported by the refusal to comply with legislation and to provide the employee with even his core terms in writing or to engage with the employee’s proposals around the terms and conditions for other employees as proposed by the employee who was responsible for putting those terms and policies in place. However as observed at the hearing, the tenure and tone of the relationship was also most likely greatly influenced by an email sent by the employee to his employer on November 5th, 2020. At best this email can be described as abusive and the contents could not be acceptable to any reasonable person receiving that email or reading the contents as representing appropriate or acceptable conduct on the part of an employee. The significance in the context of the current dispute is that he is claiming constructive dismissal on grounds of the attitude of the employer and the refusal of the employer to engage with him in writing after that date-but on that date he first threated to resign. That threat of resignation resulted from a refusal by the employer to use the company website as any part of a dispute which the employee had with a third party. The employer did try to meet the employee who refused citing a lack of trust and at the hearing unsuitable meeting arrangements. It is not unreasonable of an employer to insist on a meeting to discuss matters with an employee including any grievance the employee has in relation to his conditions of employment. The tone and content of emails repeatedly sent by the employee to his employer from November 5th onwards are such that one can only conclude that he was the protagonist rather than the recipient of unreasonable behaviour and as such no recommendation of constructive dismissal is justified.

Travel and Subsistence Payments

 On the substance of this claim, in the final days of his employment of less than two months, and as part of his deep dissatisfaction and litany of complaints at that stage, the employee first referenced a claim for subsistence (13 November 2020) for subsistence. He subsequently made up a claim related to civil service terms which he apparently downloaded and also submitted on November 13th.  At no point were these rates or any rates agreed or discussed with the employer and there is no basis for a recommendation in favour of the claim.

Constructive Dismissal/subsistence