Complainant

Respondent

Parties

Keith  Mac Shim (Aka Simpson)

Morgan Doyle Ltd Morgan Doyle

Representatives

HR Ireland

 Padraig J Hyland & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00045877-001

30/08/2021

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

CA-00045877-003

30/08/2021

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

CA-00045877-004

30/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00045877-005

30/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045877-007

30/08/2021

The complainant was employed from January 30th, 2017, to July 12th 2021 when he complains he was unfairly dismissed.

The complainant enjoyed his job and was good at it, regularly being the most effective salesperson. He often took calls on his day off, and if a customer service issue came up particularly involving delivery he would attend to it. He described the management style in the company as no nonsense and assertive. He reported to the Managing Director, Morgan Doyle, and Neville Doyle his brother also a director.

This is a small but commercially successful furniture store based in Arklow.

Mr. Simpson went in to work as normal on July 12th, 2021, having asked for holidays one month prior to wanting them. He was flexible and willing to change the dates but believes there another agenda to terminate his employment, as evidenced by the unreasonable reaction to his request to accommodate his holidays to see his son in the UK who he had not seen due to Covid.

Mr Simpson says the inability to accommodate his leave request did not warrant dismissal as he was willing to change the dates within reason allowing as he is entitled to do so for his family and personal reasons.

The refusal of a reasonable request to go on holidays was that he could not be spared for three days as the MD, Mr M. Doyle would also be on leave as would another employee. Mr Simpson said he had no access to the holiday diary. 

Whatever the outcome, the complainant’s dismissal was totally flawed, and he had no right to representation or natural justice. He has been unemployed despite efforts to secure other similar employment.

Mr Simpson was particularly upset that that Morgan replied, ‘he did not want me there and the bond of trust had been broken, and our relationship was over’.

Regarding complaint CA 00045877-003 Mr Simpson did not receive his proper bonus payments for the duration of his employment. Details were submitted and the complainant has calculated that he is owed the sum of €11,354.00.

In a submission requested at the hearing and received subsequently the complainant set out his estimate of the sales figure from the period January 1st, 2021, to July 12th,  2021 thus the commission due at the agreed 2% should equal €6,172. The respondent has produced a sales figure for that period which is approximately two-thirds of his estimate, but he accepts that he has no way of checking the base pay as he did not receive pay statements for this period just a total figure. He estimates that there is an outstanding payment due of   €2,172.

Re complaint CA 000045877-004, Terms and Conditions of employment, the complainant was not given a contract of employment nor a staff handbook nor indeed any contractual documents pertaining to his employment. He raised this matter consistently with Management and the payroll person.

Complaint CA 00045877-005. The complainant was paid two weeks’ notice following his dismissal and he did not give his permission to be paid in lieu of notice as he did not resign, and if he had resigned, he would have worked out his two weeks’ notice period. This again shows that he was dismissed and did not resign his position as he will give in evidence under oath.

Re complaint CA 00045877 -006, Holiday Pay Mr Simpsons holidays were paid based on his basic pay his bonus pay was not factored in.  In his supplementary submission, it is agreed that he only worked eleven weeks in 2021 but on the basis of his calculation this entitles him to an annual leave payment of €875.  

Evidence of the complainant, Keith Simpson.

The complainant, Keith Simpson gave evidence on oath.

He said that he was asked to go to Neville Doyle’s office by Morgan regarding a letter he had sent to the company. At the meeting, Morgan Doyle said the letter was like sticking up ‘two fingers’ to the company.

He went on to say ‘if you go on annual leave, you can go now” which the witness interpreted as telling him to leave the job. The witness asked for this in writing, but Neville responded, ‘You’re not being fired you are leaving” to which the witness responded, “I am being fired’.

The witness confirmed in response to a question from his representative that he had no doubt that a dismissal took place and immediately after the incident he went home and told his wife that he had been dismissed. Two days later he received his notice payment.

Under cross-examination he was asked about previous discussions between the parties and whether he had been aware that the dates he sought were not available. He confirmed that he had been.

He was further asked whether he had been aware of the reasons why the dates he sought were not available relating to the lack of cover and he said he had been. He was told other dates were available in September or October.

In response to a question from the Adjudicator as to whether the witness intended to go on holidays anyway regardless of whether the company changed its position and he said he did. The witness said he did not think there would be any difficulty taking the time off.

Morgan Doyle Ltd is a third-generation Irish family-run furniture business trading for nearly one hundred years.  The respondent says that this claim arises from the complainant being unhappy when he was told he could not have his holidays on the specific date he requested as two employees had previously booked this week off. The holiday booking system operates on a first come first served basis.

The complainant was frustrated with this and decided to leave the company having delivered an ultimatum that he be allowed to have this week off or he was leaving. He walked out of his position on the July 12th, 2021, without any prior notice to the respondent.

The respondent says that the complainant casually asked Morgan Doyle on the shop floor about dates for holidays.  The respondent company has weekly team meetings where everyone is asked if they have any issues or grievances that they need to address, and it had been stated previously that that the holiday diary for July was fully booked.

The complainant’s claim that he had asked for holidays on June 28th and 29th, 2021 and the version of events given in his statement is denied.  The interaction with the complainant consisted of him casually enquiring about holidays and he was told that two members of staff had booked that week and that he could not be accommodated.

On July 6th, 2021, Morgan checked the holiday diary in the complainant’s presence and explained that his requested dates were already booked by another employee and that he too had booked this time off to go on holiday with his wife as she was recovering from illness.

It was at all times made clear to all members of staff that no more than two people could be on holiday during the same week as this would put the remaining staff under too much pressure to cover breaks and work the shop floor. The complainant’s proposed solution of a ‘temp’ to cover his holiday was not something the respondent company was willing to do.

There was a further communication on July 8th, 2021, in the course of which the position was confirmed.  Mr. Simpson was clearly not happy with this and went as far as to contact the other staff member who was on holidays to ask when she would be returning even though it had been explained that she would not be available to cover his holidays.

There was a formal meeting July 12th, 2021, but none prior to that.  There was an email from the complainant on July 11th, 2021, outlining his predicament and setting out his difficulty regarding holidays.   It was clear that Mr. Simpson did not accept that he could not take his holidays on the dates he requested, and the respondent felt that his request for this holiday was a demand on an all or nothing basis.

Mr. Simpson’s letter outlines family difficulties and the changing travel restrictions regarding Covid-19 at that time, but these difficulties were outside the control of the respondent company and in the circumstances, so there was little the respondent could do.  The only alternative was a proposal of holiday dates in September which Mr. Simpson was unable to take at this time.

It is clear from Mr. Simpson’s letter of July 11th, 2021, that he went ahead and booked flights for a holiday without confirming and or seeking permission from the Respondent. It is also clear at this stage that he was well aware that his holiday dates were not available as he had been informed as above on July 6th, 2021, when the respondent reviewed the holiday diary with him and again by text message on July 8th, 2021, clarifying the position regarding the availability of holidays.

It is clear from the correspondence that Mr. Simpson was fully aware of the difficulty this has caused the respondent, but he was unwilling to amend his holiday dates as the flights had already been booked.  Mr. Simpson fully intended to go away on these dates regardless of the difficult circumstances for the Respondent.

In his letter of July 11th, 2021, he stated, “I regret that this may cause a problem on the floor, but I don’t see any way out of it” and this was the unfortunate position the complainant forced himself into. Mr. Simpson was never asked to leave, there was no unfair dismissal in the circumstances, Mr. Simpson simply took it upon himself to leave and repeated requests were made for him to reconsider and take a few days off. 

The respondent was unaware this was going to happen and made repeated attempts to offer Mr. Simpson a chance of meeting to resolve the issue as can be seen from the correspondence that day and from further correspondence and repeated attempts to meet Mr. Simpsons after his sudden and unexpected departure.

Neville Doyle contacted Mr. Simpson via text message after repeated attempts to call him directly on his mobile phone the same day he walked out on 12th July 2021 asking Mr. Simpson if they could have a chat and resolve matters.

Mr. Simpson then followed text messages up with a phone call to Neville twenty-four hours later stating that he felt he could not return to work, but he was told that should not be the case as there was no reason why he should not return.

This was an unfortunate misunderstanding which left the complainant angry and upset and decided to leave on his own terms.  The respondent remains willing to offer the complainant full re-instatement to the position he held immediately before he decided to depart from his position. 

Evidence of the respondent, Morgan Doyle.

Morgan Doyle give evidence on oath.

He said that he enjoyed a great relationship that the complainant and after the gradual return to work following Covid and specifically the return to work by the complainant he reopened the annual leave booking system.

The dates sought by the complainant had been booked already by both the witness and a colleague.

Towards the end of June, the complainant approached him regarding annual leave but was told that the dates he sought were not available. Four people were needed on the floor and while he could manage with three it was not possible with two, which would have been the position if the complainant had gone on leave.

On July 12th he received a letter from the complainant following which he called him to the office for a meeting. He explained the position that the complainant was the last to return to work, but he denies using a reference to ‘two fingers’.  He simply told the complainant that he could not have the leave.

The complainant responded to this by saying; ‘we are done’, three times in total. At that point the complainant stood up and the witness gave evidence that his brother stated, “you’re leaving”.

The complainant responded I’m getting my things down at the desk. The witness followed him to the car and said, ‘this is crazy’. After that the witness thought it would blow over as it had in the past.

He told the hearing that he would gladly re-employ the complainant tomorrow.

However, it was clear from an early stage that the dates sought by the complainant were not available. The suggestion of employing a temporary administrator would have been no assistance in relation to the sales department.

The witness’s understanding of the letter sent to him on July 12th  was that the complainant intended to go on leave regardless of the wishes of the business and the purpose of the meeting on that day was to persuade the complainant to use alternative dates.

The witness denies saying the words attributed to them by the complainant to the effect that if ‘if you go on annual leave, you can go now’.

In response to cross-examination of the witness said that the meeting on July 12th was an informal meeting and while there was disagreement it was not a heated meeting. In relation to the cover required for the sales function he said the floor area is 30,000 ft.² and it would not be possible to cover with two people.

Mr Neville Doyle also give evidence on oath on behalf of the respondent.

He confirmed that he was in attendance at the meeting on July 12th and he viewed the letter received from the complainant has confirming that he intended to take leave regardless of the company’s position.  He was aware that the Morgan Doyle had told the complainant that the dates were unavailable as two staff that would be on annual leave.

He said the complainant was ‘a brilliant salesman’ and there was no bad feeling as a result of the meeting. That afternoon he texted the complainant to see if he would return to work.

The complainant responded a few days later saying that things had gone too far and that he couldn’t come back. The complainant was one of the best salesmen one could have, and it would make no sense to terminate his employment. After the event numerous attempts were made to meet him.

Regarding complaint CA-00045877-003 – Pay   The complainant has calculated that he is owed the sum of €11,354.00.  This is completely denied by the respondent.  The complainant never had any issues regarding pay or commission until he was unable to take his holidays when he requested and decided to walk out of the company on his own accord.

The complaint was submitted with a report from the respondent’s Retail System showing how any owing commission was calculated and the complainant never had any issue with this.

Text message conversations from Neville on July 24th, 2021, were submitted regarding the payment of commission and two weeks-notice paid to Mr. Simpson after he personally requested the payment of his notice.  Mr. Simpson also text Morgan on the August 10th, asking Morgan to meet. 

Further submissions were requested from the respondent on this by the Adjudicator and in its submission, it stated as follows.

In relation to the issue of commission, calculation of the commission due in the first instance and subsequently paid to Mr. Simpson during the period 1st February 2021 to 31st July 2021 was submitted.

Commission is calculated at 2% of gross sales and on the basis of the complainant’s sales the commission due from February to July 2021 was €4,268.80. He was also paid commission for €81.20 in respect of a sale put through by another salesperson.

Total commission paid to the complainant during the period 1st February 2021 to 31st July 2021 €4,350. The complainant is as a loss to determine as to where Mr. Simpson arrived at the figures as per his Submission and they are not accurate. Commission is paid up to date.

Detail was submitted on holiday pay although this was not paid to the complainant with his consent and used to offset a payment on his behalf to a local garage.

Therefore, no commission or holiday pay is outstanding.  However, as a further gesture of goodwill the respondent proposes to make a payment of a further €1,000 by way of ex­ gratia payment to Mr. Simpson to cover any outstanding issues concerning commission or shortfall in holiday pay that he believes may be due and owing.

Regarding complaint CA 000045877-004, Terms and Conditions of Employment, the respondent has had this matter resolved after an inspection from the WRC with several members of staff interviewed by an inspector who made some very helpful and beneficial recommendations which the Respondent has successfully implemented, and the case was closed by the WRC.  All recommendations of the WRC inspector have been implemented.

Regarding complaint CA-00045877-005 Minimum Notice, the Complainant specifically requested any monies due and owing along with his P45 from the Respondent company.  This was agreed with the complainant.    

Regarding the complaint on holiday payIt is denied that Mr. Simpson is owed arrears of holiday pay in the amount of €3,950.48.  The complainant only returned to work in 2021 on May 10th having not worked that year at all.  His total working time in 2021 was eleven weeks and he was paid two extra weeks-notice on leaving.  By the calculations of the respondent company, he was owed four days holidays maximum for the eleven weeks worked.

In summary, the complainant was not unfairly dismissed but left, frustrated at being denied holidays in the circumstances. The offer of re-instatement remains firmly on the table.

As will be clear from the submissions and the evidence of the witnesses, the critical moment in assessing whether the complainant was dismissed, as he says or quit his employment, as the respondent states is the meeting that took place between the parties on July 12th, 2021.

This had been preceded by a letter from the complainant which contained the following.

“I asked my colleagues in the sales department if anyone had booked any holidays for the summer, with a view to making sure the floor was covered when I was away.  When they said they hadn’t, my wife went ahead and booked dates.  I did not anticipate any problems but when you told me there was, I offered to change my dates to suit.  However, the proposal that I take my holidays in September is simply too far away.”

“My proposed dates are from the 24th of July to the 2nd of August 2021, and I really cannot change them at this point now or we will lose our chance of seeing him (my wife is travelling from England to Germany). There is just too much at stake. I regret that this may cause a problem on the floor, but I don’t see any way out of it.”

It is hard not to see this as something as an ultimatum and the complainant confirmed this in response to a direct question from the Adjudicator.

When asked whether he intended to take the annual leave anyway if the respondent did not change its position, he answered simply, yes. This flatly contradicts his submission above where it is asserted.

‘He was flexible and willing to change the dates but believes there another agenda to terminate his employment, as evidenced by the unreasonable reaction to his request to accommodate his holidays to see his son in the UK who he had not seen due to Covid’

For good measure this assertion is repeated in the next paragraph of his submission above.

However, on the basis of his sworn testimony to the hearing both assertions can be seen to be demonstrably untrue, and it provides the critical context that one must use to evaluate the various comments allegedly made at the meeting, and to interpret such nuances as may be associated with the various comments by the respondent in particular.

This is despite Neville Doyle’s evidence (which was not disputed at the hearing) of saying ‘You’re not being fired you are leaving’.

The evidence in relation to those comments was that the complainant was told (and accepted in his own evidence that he was not being fired, but he, for reasons that are not supported by the facts or his own evidence, chose to insist that he was.

The specific context for this exchange was the comments allegedly made by the respondent to the effect, ‘if you go on annual leave, you can go now”.

Taken on its face, this might seem to provide some support for the complainant’s assertion that he was ‘being fired’. However, to do so would be to remove it entirely from the context of the meeting and the complainant’s contribution to the reason for having it and his conduct at it.

The complainant’s evidence that ‘he had no doubt that a dismissal took place’ is not supported by this evidence; there is very considerable doubt that a dismissal took place and I find that there was no dismissal.

His repeated comments of ‘We’re done’ are at least as decisive in the other direction as indicators of the complainant’s insistence on having his way in relation to the leave or, if it was not conceded, leaving the business.

While the arrangement of annual leave should be a matter for consultation between the parties, the undisputed facts in this case were that the maximum number of those who could be spared had already been reached before the complainant let it be known he wished to take leave. He was fully aware of this, and it was his own insistence on getting his way that brought him into conflict with his employer.

Complaint CA 00045877-003 alleges that Mr Simpson did not receive his proper bonus payments for the duration of his employment. And he has calculated that he is owed the sum of € 11,354.00.

Further submissions were requested from both parties on this by the Adjudicator and a summary of those submissions appears above.

The respondent says that it is at a loss to determine how the complainant arrived at the figures in his submission and says they are not accurate and that the commission is paid up to date. The complainant accepts that he did not have access to the records he needed. Unfortunately for that line of argument the burden of proof falls on him to make out his case.

He not made out a sufficient case to challenge the respondent’s records and submission which I accept, and this complaint is not well founded.

In relation to complaint CA-000045877-004 regarding compliance with the Terms of Employment (Information) Act this was not disputed by the respondent and is well-founded. My award on this is below.

Complaint CA 00045877-005 regarding Minimum Notice was withdrawn.

(While the parties have referred to the next complaint as CA-00045877-006, it is in fact CA-00045877-007, according to the notice of the hearing sent to the parties. CA 00045877-006 was closed on the case file and 007 was the subject of an additional complaint on April 1st, 2022).

In any event this relates to holiday pay and the complaint is based on the complainant’s estimate of his bonus pay, saying that it was not taken into account in calculating the leave payment.

However, this is the disputed amount referred to above in respect of which the complainant has failed to discharge the burden of proof in establishing his entitlement to the additional bonus; it follows accordingly that this complaint is not well founded.

In relation to complaint CA 00045877-001 I find that the complainant was not unfairly dismissed, and his complaint is not upheld.

In relation to complaints CA 00045877-003 and 007 for the reasons set out above these complaints are not well-founded.

Complaint CA 00045877-004 is well-founded, and I award the complainant compensation in the amount of two weeks’ wages; in total €1,400.00.

Complaint CA 00045877-005 was withdrawn at the hearing.

Unfair dismissal. Terms of employment