Complainant

Respondent

Parties

Martin  O'Neill

Afm Facilities Ltd Afm Ireland / Ashbrooke Facilities Management

Complainant

Respondent

Anonymised Parties

Representatives

  In person

Ms Lauren Tennyson BL instructed by Peter Gibbons, O'Shea Barry Solicitors LLP

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-00054860-001

01/02/2023

The Complainant was employed as a Business Development Manager by the Respondent. The Complainant commenced employment on 7th December 2020 and employment ended on 22nd February 2023.

This complaint was received by the Workplace Relations Commission on 1st February 2023.

The Complainant contends that his employer, the Respondent, constantly “moved the goalposts” in relation to his sales commission.

In March 2022 the Respondent organisation hired two new employees, one was a Marketing Manager and the second was a Facility Manager. If either of the two new employees provided leads for the sales function the commission that was once payable to the Complainant would now be split between the Complainant and the new member of staff.

In October 2022 the Respondent changed the sales structure in such a way that resulted in the Complainant only having 30 days to complete all sales. Should it go over 30 days the commission, once payable to the Complainant would now be paid to Operational staff members.

The Complainant commenced employment with the Respondent in December 2020. At that time the Complainant has stated the job was very good and he was happy.

The Complainant contends that whilst he received no training things in relation to sales started moving forward even though things were made more difficult due to Covid 19.

Things changed in or around March 2023 when a Social Media Manager was recruited by the Respondent. It is the Complainant’s contention that commission would now be split with the Social Media Manager if she brought in leads that led to Sales, the Complainant thought this was fair enough however if he won sales from cold calling the commission would be paid to him alone, this turned out not to be the case as the Social Media Manager wanted her split regardless of how the sale was obtained.

The main problem took place in October 2022 when the Managing Director changed the whole sales process. This change involved a thirty day deadline for completing new sales. If the sale had not been completed within the thirty days, the commission would be paid to operations personnel. This made matters extremely difficult or impossible to meet targets. The Complainant voiced his disagreement to the Managing Director.

In January 2023 the Complainant was removed from a student accommodation account which was given to the Facilities Manager. The Complainant admits that he was extremely annoyed by this turn of events as he had been working on this account for over a year ant to lose this much commission in difficult times was a step to far.

Preliminary Issue.

Failure to disclose grounds justifying a claim for Constructive Dismissal.

1.       The Complainant tendered his resignation from the Respondent’s employment by email dated 24th January 2023. The Complainant was not dismissed by the Respondent. The Complainant therefore bears the burden of establishing that the circumstances giving rise to his resignation were such that he was left with no alternative but to terminate his employment. It is respectfully submitted that the complainant has failed to disclose any or any adequate grounds from which a finding of constructive dismissal might reasonably be reached by the Adjudication Officer.

2.       In his complaint form, the Complainant has neglected to provide detailed particulars of his claim. As the Adjudication Officer will be aware, the WRC’s Procedures in the investigation and Adjudication of Employment and Equality Complaints document specifically provides as follows:

At the time of lodging the complaint form, the Complainant must give as much detail as possible on the form itself. The Complainant must set out the facts leading to the constructive dismissal including, where relevant, details of the grievance procedure followed and where appropriate, any legal points the complainant may wish to make. If no statement is received from the Complainant in these cases the Director General may decide to dismiss the complaint for non-pursuit.

[…]

A clear statement setting out the details of the complaint will be required from the complainant in all […] complaints of constructive dismissal within the meaning of part (b) of the definition in section 1 of the Unfair Dismissals Act when submitting the form.

[…]

An Adjudication Officer hearing the complaint may draw such inference or inferences as he or she deems appropriate where relevant information is not presented in a timely manner.

Complaint submitted under s.8 Unfair Dismissals Act, 1977 – CA – 00054860.

1.       The Complainant commenced employment with the Respondent on 7th December 2020 as a Business Development Manager. The Complainant tendered his resignation with the Respondent by email on 24th January 2023 giving one month’s notice therefore the Complainant’s employment terminated on 24th February 2023.

2.       The Complainant was responsible for new sales. He was not responsible for servicing existing clients. If the Complainant made a new sale, he was paid commission on that sale in accordance with the agreed sales commission which applied. The new client was then handed over to the operations team 30 days after the service commenced. It then became the responsibility of the Area Manager who acted as account manager. The Respondent’s sales structure has been the same at all times and has not changed for a number of years.

3.       The Complainant’s commission rates and structure remained the same during his employment. A new Marketing Manager and a Facility Manager were recruited in March 2022. These new employees added an additional revenue stream and the commission structure updated in March 2022 to include new business generated by those new roles. If leads came directly from the Marketing Manager or the Facility Manager to the Complainant, then commission would be split, and this was agreed with the Complainant in March 2022 and operated since then.

4.       Whilst the Complainant provided feedback to the Managing Director in relation to the new Facility Manager concerning delays in response times to clients the Complainant was advised that management would deal with this rather than the Complainant. On occasion the Complainant had to be reminded that he was to concentrate on new business only and that his role did not involve current clients who were being looked after by the Area Manager. The Complainant was not responsible for account management.

5.       In August 2022 the Complainant mentioned to the Managing Director that he had received an employment offer from another company and that although the financial offer was significant that he loved working for the Respondent and had no intention of leaving.

6.       The Complainant participated in weekly sales meetings to discuss new sales. The Complainant never attended the weekly meetings about current client sales.

7.       On the 24th of January 2023 after speaking to the Marketing Manager the Complainant became heated and angry towards her about a client being assigned to the Facility Manager on the computerised account management system rather than him. When the Marketing Manager explained that it was an existing account and not a new client the Complainant became extremely angry and he used foul language and left the office.

8.       On the same date, 24th January 2023 the Complainant emailed the Managing Director and the Human Resources Manager and stated the following;

“Hi Alan,

Hope this email finds you well. It’s with great regret I find myself writing this email I always thought I would be at AFM for a long time. But I feel I must give my months’ notice of termination of employment. There are a few things still left to be done I am working on and will do my utmost to ensure these are completed.

Kind Regards”

9.       The Complainant’s resignation email is notably silent on the reason for his resignation.

10.   On 25th January 2023 the Managing Director and HR Manager met with the Complainant to discuss his resignation. The Respondent confirmed acceptance of the Complainant’s resignation and placed the Complainant on one month’s gardening leave. The Complainant was paid in full until 27th February 2023, this was his final day in employment.

11.   Prior to submitting his resignation, the Complainant did not submit any grievance during his employment. The Complainant was aware of and had signed receipt of the Respondent’s Company Handbook which contains the Respondent’s grievance procedure.

12.   The Complainant’s employment ended by reason of his resignation.

13.   The Respondent has cited a number of decisions indicating used case law in this type of complaint.

Conclusion.

1.       The circumstances surrounding the Complainant’s resignation and the facts as outlined do not and could not possibly meet the threshold of unlawful or unreasonable conduct which might justify a finding of constructive dismissal.

2.       The claim should be dismissed.

3.       The Complainant has not adduced any evidence of his attempts to mitigate his losses. The Respondent understands that the Complainant secured alternative employment within weeks of his employment terminating.

In Dismissal Law in Ireland (Second Edition) by the late Dr Mary Redmondat page 404 clearly states the following:

“There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so to an employee should invoke the employer’s grievance procedure in an effort to resolve his grievance. The duty is an imperative in employee resignations.  Where grievance procedures exist, they should be followed.”

This requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank (UD 474/1981) whereby the Employment Appeals Tribunal stated that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints”.

In the instant complaint the Respondent organisation had a comprehensive grievance procedure, the Complainant was aware of this and had been issued with a copy of same. The Complainant had, at no time during his period of employment, formally utilised this procedure.

I have considered this complaint in detail and for the reasons outlined above now find that the complaint as presented under section 8 of the Unfair Dismissal Act, 1977 is not well founded.

I have considered this complaint in detail and for the reasons outlined above now find that the complaint as presented under section 8 of the Unfair Dismissal Act, 1977 is not well founded.

Constructive Dismissal. Failure to utilise internal procedures.