ADJ-00032939

Complainant

Respondent

Parties

Mark  Ruane

BVP Investments Ltd

Representatives

  Self

Eamon Murray BL  instructed by  O'Brien Lynam Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043619-001

16/04/2021

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

CA-00043955-001

08/05/2021

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

CA-00043957-001

08/05/2021

This case is concerned with a claim of unfair dismissal where dismissal by the employer was disputed or in the alternative, in the event that the complaint was upheld, then in determining losses, significant account was to be taken of the offers of continued employment made to the Complainant which he declined. A second complaint was submitted under the Terms of Employment (Information) Act 1994 on 8 May 2021 which was described as “I received a statement of my core terms which deliberately contained false or misleading information”. Evidence was provided at the hearing by the Complainant. On behalf of the Respondent the Managing Director gave evidence as did the Financial Controller. The parties are named in the decision and the generic terms of Complainant and Respondent are used in the remainder of the text apart from the decision.

The Complainant was employed with the Respondent on a Jobsbridge programme from 2015 until March 2016. The Respondent contacted him in March 2017 inviting him to interview for the position of Assistant to the Head of Finance and Compliance. He attended an interview in April 2017 and was offered the position commencing 29 May 2017. When he commenced he learned that the Head of Finance and Compliance had left the Company and within a short period he assumed the role reporting directly to the MD. He described it as a role that he found challenging to manage within the contracted hours. He experienced no difficulties receiving bonus payments in October 2018 and October 2019. The Complainant described experiencing his first difficulties on the 22nd of November 2019 in an incident with the MD when he sought to leave the premises at 5.00pm to collect his son from a creche. He gave evidence that on the 14th of January 2020 he was handed a new job specification which he was informed was not negotiable. On the 19th of February 2020 bonus awards were allocated to all eligible staff. Whereas others received between €10k and €20k he received €2k. He referred to matters concerning Covid. He referred to another incident on the 20th of March 2020 where he contends that he was told that he needed to grow up. 

On the 24th of April 2020 he was invited to a meeting on the 27th of that month for a performance review which he described as very negative and where two issues were raised: an incident on the 20th of March; and questioning his loyalty and respect for the MD. He was informed that he would not receive any further benefits, that his position was financially capped and there was no opportunity for him to progress any further. 

On the 18th of May a new financial controller commenced. On the 26th of June 2020 he received his exam results, and he informed the MD that he had passed with distinction. Later that day the MD called him to the office and told him that he should start looking for another job. When he asked was he being fired, the response was yes. The Complainant contended that he referred to having to pay a financial controller and him and that he could get a graduate to do his job for less money. The date of departure was set at the 28th of August 2020. He began looking for work but with the situation involving Covid this was very difficult, and he could not afford to be unemployed. He received a letter of termination on the 16th of July 2020 effective the 28th of August 2020. When he inquired about a two percent share option which was part of his contract, he was informed by the MD that he had never set up the scheme. On the 18th of August 2020 he received a reference. 

On 26th August 2020 the then financial controller tendered their resignation. The Managing Director approached him and asked him to stay on offering him an extension of one month. The Complainant agreed for the sake of his colleagues. On 28th September 2020 he received a preliminary offer of a new position, and he informed the Managing Director that he had found a job and would be leaving on the 9th of November 2020. Regarding offers to continue his employment, when he first was asked to stay on it was for a month and possibly up to January of the following year, but this was a temporary offer and there was no permanent position offered to him at that time. The notice of termination was not withdrawn. On the 28th of September he gave two months’ notice. A new financial controller commenced in early October 2020 and there was a discussion with her about staying on the same terms and conditions as he had with the Company but there was never any offer in writing. He was asked to consider consultancy work but when he said he would make himself available at weekends this was refused. He decided that he could not trust the Managing Director. There had been many issues. It was said that he had received a verbal warning when he received no notification of any verbal warning. His employment was ended. Previous promises to pay health insurance and the shareholding are not implemented. He could not be sure that the situation would be as was discussed with the Financial Controller. She might leave as had the two people before her. Where it was suggested on behalf of the Respondent that he could have raised a grievance regarding the issues which he had in the employment, he asked how he could have done this when the person in question was the Managing Director who was also the HR Manager for the employment. Regarding a loss of earnings calculation, the Complainant stated that there was a difference initially in the rate of pay as between that paid by the Respondent of €55,000 per annum and €35,000 with his new employment. In February 2021 his salary was increased by €5,000 due to a promotion. He gave calculation a of €31,130 in losses. At the hearing he was invited to provide evidence of his contractual terms within the new employment and he subsequently provided two contracts. The first was a fixed term contract with a salary of 35k and the second was a promotion to a permanent post at 40k. Bonus payments were discretionary.

The Respondent representative did not make a formal submission relying instead mainly on cross-examination of the Complainant and then questioning of his own witnesses. There was however a detailed document submitted by the Respondent to the WRC and his own factual evidence was largely consistent with that document. At the outset of the hearing the Respondent objected to the complaint under the Terms of Employment (Information) Act. The Complainant was supplied with and accepted a statement of terms of employment. 

In relation to the termination of employment, the Respondent representative confirmed at the outset that dismissal was denied, there was a job offer made to the Complainant to remain with the Respondent (which the Respondent in its written statement had described as an offer of a permanent position). If it were found that there was a dismissal the Respondent representative agreed that there was the potential to have the matter considered as a constructive dismissal given the offers to remain in employment and that the Complainant had voluntarily remained in employment after the scheduled date of termination (28th August 2020). Alternatively, if it was decided that there was an unfair dismissal which was found to be unfair, then the offers of continued employment on more advantageous terms than those which the Complainant had accepted with his successor employer should be taken into account in terms of redress. That account should recognise that had the Complainant remained in the employment of the Respondent he would have suffered no loss of benefits whereas he chose to move to an employment on a substantially lesser rate of pay. 

The summary of the evidence on behalf of the Respondent takes account of the verbal evidence of the Managing Director at the hearing with due regard to his written submission to the extent of the facts of the situation. 

The Managing Director described the close working relationship between him and the Complainant over an extended period. While there was no financial controller (prior to 2020) the relationship involved constant contact between him and the Complainant, and he felt they had a good relationship without difficulty for most of that period. The level of interpersonal contact changed when there was a financial controller in place and there was a significant reduction in their contact including after the appointment of a second replacement financial controller in October 2020. 

Significant issues occurred when in January 2020 the Complainant gave a reference which was to be used to make a visa application. This was outside the authority of the Complainant. He gave the Complainant a verbal warning regarding this action. 

There were several serious incidents regarding compliance, shortcomings in IT, trustee arrangements, AML documentation etc. for a continuous period. On the 23rd of April 2021 at a review meeting these serious issues were discussed with the Complainant. At that meeting he informed the Complainant that he intended to hire a financial controller and asked the Complainant to identify areas where she could focus on, and the Firm would endeavour to support his development and training in these areas. It was highlighted that his anniversary was coming up at the end of May. While there was little feedback or interest expressed by the Complainant, he was hopeful that he would give the matter some further thought and hear back from him. 

A financial controller commenced in May 2021, and they too found several issues. There was no feedback from the Complainant on areas which he could focus on whilst the Financial Controller could focus on others. 26th June 2020: the Respondent met with the Complainant and expressed his disappointment in his lack of engagement. He suggested that the Complainant should seek alternative work in an employment better suited to his skillset and interests. His really felt the Complainants interests would be better served working elsewhere and he said this to him at that meeting in June. Recognising that this was during Covid and could be a difficult time to obtain alternative work, he suggested a two-month period to allow the Complainant secure alternative work. Referring to the letter of the 16th of July 2020, he was reluctant to issue the letter. He did so only following two requests by him to issue the notice because he was in the process of seeking a HAP grant for moving from one rental property to another. 

In early to mid-August the Financial Controller decided that the role was not for her. The Managing Director had spoken with the Complainant over July and knew that he had no job to go to at that time and he suggested to the Complainant that it would be mutually beneficial if he was to remain on beyond the end of August. He suggested a date at the end of January 2021 and promised him a bonus of €500 if he stayed until at least the end of September. Nothing was agreed at a meeting, but the Complainant then wrote and said that he agreed to remain working until the end of September. On the 28th of September 2020 the Complainant gave two months’ notice and referred to a share scheme and benefits due to him. The Respondent had no share scheme in place for any member of staff at the time. In October 2020 a new financial controller was employed, and she worked very well with the Complainant and wanted to restructure the team. The Managing Director agreed with her proposals and the Complainant was then asked to remain working in the same position and other benefits would be put in place for him such as pension and VHI. This was a permanent job offer. However, the Complainant declined the offer, and he was then offered a consultancy role which the Managing Director discussed with him. The reason for this latter offer was that he had previously  indicated he intended to set up his own consultancy business. The Complainant suggested that he would be available to work on consultancy at weekends, but this was not practical or acceptable. Having failed to reach agreement with him to remain in the business, he left on the 9th of November per his own decision. He received an ex-gratia payment of four weeks’ pay on leaving the business in consideration of his claim regarding the shareholding. On the question of trust and confidence in remaining on in the employment and concern about his dealings with the witness, the Managing Director said that certainly by October 2020 and when there was a financial controller, the previous level of interaction between them was greatly reduced, and that issue should not arise to any extent. 

Evidence of the Financial Controller

The Financial Controller employed in October 2020 gave evidence of working well with the Complainant whom she found very welcoming when she joined the Company. She did not know at the time of taking up her position that he had given notice and was due to leave the Company in November. She decided very quickly that the situation needed structures and she put forward a proposal for the Complainant, a role which she felt he would have liked and gave him the options. After a couple of days, she pressed him to come back on the proposal, but he said that it was not for him. Trust did seem to be an issue for him. She gave evidence that the proposals which she put to the Complainant were agreed and approved by the Managing Director. Asked why there was nothing in writing, she said if he had confirmed an interest in the proposals they would have been put in writing.

Terms of Employment Information Act 1994.

The complaint was made on the following basis:

‘I received a statement of my terms of employment which deliberately contain false and misleading information.’

This terminology replicates section Sect 6 subsection B (2) of the Act where it states:

‘An employer who deliberately provides false or misleading information to an employee….shall be guilty of an offence.’

Such an offence is in effect a criminal matter liable to a Class A fine or imprisonment. Section 7 of the Act.

Subsection (5) states:

‘Summary proceedings for an offence under this section may be brought and prosecuted by the Commission.’

 It is to be noted that there is no reference to the Adjudication Officer or the Labour Court on appeal) in this provision. Neither is it stated how and in what circumstances in a decision to initiate such proceedings. However as Section 6B is specifically excluded from the sections listed under section 7 against which an Adjudication Officer may make a decision and in what form  I therefore decline jurisdiction in the matter which is the subject matter of the complaint under this Act.

This position was explained to the parties at the hearing.

Complaint of Unfair Dismissal

At the hearing, the Managing Director conceded that when leaving the meeting with the Complainant on June 26th, 2020, it was reasonable for the Complainant to conclude that he had been dismissed. In relation to that dismissal, nothing resembling fair procedures were followed by the Respondent. The accepted fact that he considered it in the best interests of the Complainant to look elsewhere for work and to pursue other interests does not alter this conclusion. A job is a contractual relationship with mutual obligations and not a grant of Complainant largesse which can be terminated by the employer side without following due process and fairness based solely on his own opinion. The dismissal was unfair in the complete absence of even a shadow of procedures and even at its height, the conduct of the alleged underperformance of the Complainant can offset the extent to which the conduct of the Respondent falls so far short of a semblance of fair procedures.

The dismissal of the Complainant notified to him verbally on June 26th and confirmed in writing on July 16th was never withdrawn at any stage thereafter. While the Respondent maintains he only confirmed the notice in writing under pressure from the Complainant, he had an obligation to inform the Complainant in writing of his dismissal and the reasons for his dismissal and the inference that somehow it was the Complainants fault that dismissal was confirmed in writing is misconceived.

Moving on to the contention that the subsequent job offers to the Complainant must be considered in determining losses, again the contention is misconceived. In the first instance the offer to remain in the employment in September past the due date of termination was a mutually agreed extension to the period of notice. That extension was temporary ‘I confirm our conversation earlier. I’m asking you please to stay longer until 30 September. If you’re open to it, I’l(sic) offer you to stay longer until the end of January if we can. As you know L has surprisingly decided not to stay own reasons so genuinely I’m stuck. You have been a loyal employee and I appreciate that even though I gen believe your talents would be a better fit elsewhere with a larger company’ email dated 26th August 2020. The Complainant agreed to stay on this temporary basis and then confirmed his intention to leave on September 28th which can only be read in the context of the original notice of dismissal which neither party had agreed to withdraw, and the temporary nature of the extension requested of him by the respondent.

In relation to the second offer to remain, the fundamental principle in cases of notice of dismissal works both ways. If an employee resigns and the seeks to reverse that resignation, it is entirely a matter for the employer to decide if they are willing to accept that application to remain in the employment. In reverse, when there is a notice of dismissal, as in this case, if an employer changes their mind, there is no obligation on the employee to remain in the employment and the notice of dismissal still stands unless the employee agrees that it can be withdrawn. In either case, the mutual contract is severed and can only be re-instated by mutual agreement. Apart from this underlying principle as it applies to offers to withdraw a dismissal, in this case, the person who made the decision to dismiss never personally offered to reverse that decision and never did so in writing. Nothing in writing existed to confirm the status of the job, the conditions or the indeed the reversal of the original decision. The initiative to retain the Complainants services came from a person only a few weeks in the employment and while there can be no doubt that she could only have acted with the approval of the Managing Director, given his key role in dismissing the Complainant , it would surely have required a strong personal intervention on his part to reassure the Complainant of his bona fides in the matter and not only at the stage when it was clear the Complainant was going to leave anyway-in accordance with the initial dismissal notice albeit extended by agreement.

The absence of even a shadow of fair procedures leading to the dismissal; the absence of any obligation on the Complainant to remain after he was dismissed, the absence of a proactive intervention by the Managing Director who had dismissed him in the first instance to restore the working relationship and the absence of an offer in writing influence the award of redress. Some account is taken of the Complainants decision to leave for a job with much lesser conditions of employment and therefore losses are assessed in the order of one year’s losses based on the gross difference between the two rates of pay i.e., €55k with the Respondent versus €35k with the new employer. This amount also takes account of the period of extended notice by agreement and the increase in pay secured by the Complainant in 2021 in his successor employment.

It should be noted that the form of redress is compensation. Any serious consideration of restoring the employment relationship would make no sense in the circumstances of the case and was not sought by either party.

CA-00043955 Terms of Employment Information Act 1994 as amended

The complaint by Mark Ruane against BVP Investments Ltd under this Act is not well founded.

CA-00043619 Unfair Dismissals Act 1977 as amended

The complaint of unfair dismissal brought by Mark Ruane against the Respondent - BVP Investments Ltd - is well founded. The Respondent is to pay Mark Ruane €20000 in compensation for his unfair dismissal.

Dismissal versus resignation/False and misleading terms of employment