Complainant

Respondent

Parties

Paul  King

Attitude Technology

Representatives

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-00047154-001

12/11/2021

The complainant submits that he was left with no alternative but to resign his position and he was unfairly dismissed.  The respondent did not attend the hearing and submitted that the complainant resigned his position.

The complainant submits that he commenced employment on 09/10/2019 and his employment ended on 27/09/21 and his monthly gross earnings was €2,666.  A copy of his contract was submitted.  The complainant submitted that he was always paid on the 25th of the month but that in recent times before the end of his employment the payment date was irregular.  The complainant did not receive expected commission payments and he submitted he was put in difficult position with customers as on numerous occasions there was not stock available.  It was also submitted that a diesel card was cancelled without notice and the complainant had to pay his diesel for a period of two months before he was reimbursed, and the respondent replaced the company van with a sub-par vehicle.

The complainant’s evidence was that he started work in October 2019 as a Van Sales Rep to develop the brand in Cork and Kerry and was made permanent in March 2020 and secured a pay increase.  His understanding was that he was due commission for sales and queried this to the hiring manager from about September 2020 as the MD had returned to China.  It was a small company and he often had to spend 16 hours a day driving.  From September 2020 the complainant was paid around the 25th of each month but then this payment date started to fluctuate and pay slips were referring to the 23rd of each month.  The complainant said he queried the wage as he had also lost use of a bigger van and was told he was not due commission.  He was provided with an unsuitable smaller van which was not fit for purpose as he could not stock up on everything that was needed. 

The complainant said his March 2021 wages did not go through till April 2021 and his diesel card was cancelled and this made his job very difficult, and it took a long time to claim back diesel from the respondent.  In August 2021 his wages were due but did not come through till September.  The complainant felt he was left with no alternative but to resign as his diesel card was taken and he was asked to do long trips regularly and he was denied his commission.  The respondent constantly gave misinformation regarding stock, and this impacted the reputational name of the complainant.  Ms A in the respondent organisation did her best but she also knew little about what was happening.  The complainant was given a van that was subpar and did not suit the needs of him and the travel he was having to do.  The complainant said his contract did say his salary would be paid on the last day of the month, but this did not happen, and it was his expectation that pay would be paid on the 25th of the month as this was the custom and practice.  He said when his fuel card was cancelled, he phoned the respondent and was told nobody knew this was going to happen and the complainant had to pay diesel himself and it took a long time to get compensated for this.  The complainant said that he advised the respondent on several occasions that he was unhappy but eventually was left with no alternative to resign his position dated 27/08/2021 and in his letter of resignation set out

“I’m giving my notice to finish at the end of the next month September 2021.  I can’t live this way with a lottery as to when I will get paid”

The respondent replied confirming the resignation but did not resolve the matters. 

The complainant said in evidence that after he resigned, he secured work at the end of October 2021 and is currently working with his present employer since 04/07/2022 and that he is on less money now and that he had nothing else to submit regarding efforts to mitigate his loss.  The complainant estimated his loss as €3,750.

The respondent was posted a letter advising of the hearing dated 26/06/2023 and did not attend.  In a submission sent in, in advance of a previously scheduled hearing the respondent denied that there were issues with stock, confirmed that diesel card was cancelled owing to cash flow issues but submitted that the complainant was reimbursed appropriately, and that commission was not owing to the complainant.  The respondent submitted that there was only one occasion when the complainant was not paid as per his contract.

The complainant submits that he was left with no alternative but to resign his position owing to the actions of the respondent.  I note that the respondent did not attend, and I am satisfied that the respondent was on proper notice of the hearing and failed to attend.  In reaching my conclusion I have carefully evaluated the evidence adduced during the hearing and taken full account of submissions and evidence.

Under Section 1 of the Unfair Dismissal Act constructive dismissal is defined as:

“the termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer in the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”.

The complainant’s evidence was that the conduct of the employer left him with no alternative but to resign as the complainant never knew when he would be paid, his diesel card was removed leaving him out of money for a period of time, his van was removed and the replacement van was not suitable, commission promised was not  paid and that he was regularly having to apologise to customers for the failure of the respondent to have stock available.  In a submission in advance of a previously scheduled hearing the respondent denied the complaints.  It was unfortunate that the respondent did not attend the hearing on the day to have his evidence examined and therefore, I only have the direct evidence of the complainant.

In complaints of constructive dismissal, the burden of proof rests with the complainant to show that the resignation was justified in all the circumstances. Tests that apply with regard to constructive dismissal complaints include the “contract test” whereby circumstances in which a resignation may be considered as constructive dismissal are where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his/her position.  The employer is in effect, guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract and therefore, the employee is entitled to treat himself as discharged from any further performance as held in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.

There is also the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test seeks whether the employer conducted their affairs, in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he/she is justified in leaving.

The Supreme Court judgement of Berber it was determined,

“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 to determine if it is such that the employee cannot be expected to put up with it.”

The payment dates of salary for the complainant appeared to vary and while I note that it was only on one occasion that the complainant was not paid by the date set out in the contract of employment, it is clear that there was an expectation of the complainant that he would be paid on the 25th of each month and that this was not happening and it was not possible for the complainant to be certain as to when it would be paid.  I also note that the diesel card was withdrawn, and the complainant was expected to pay for the diesel and recoup the money afterwards from the respondent and that this action was taken without any notice to the complainant to plan for this.  I also note that the van was withdrawn, and that the respondent did provide the complainant with a replacement van.  The complainant also had an expectation of commission and from the evidence of the complainant who appeared as a credible witness the goal posts changed regularly.  The complainant’s letter of resignation clearly sets out the reason why he is resigning and while I note that the respondent replied to this, there appears to have been no efforts by the respondent to give any reassurance to the complainant or make any efforts to try and resolve the areas of concern with him.

In all the circumstances it would appear, therefore, that the conduct of the respondent amounts to a repudiatory breach of the contract of employment as well as being so unreasonable that the employee cannot fairly be expected to put up with it any longer.  I also note that the complainant raised the matters with the respondent before taking the step to resign which has been set out in Conway v Ulster Bank LimitedUDA474/1981. 

 I find that overall and taking into consideration that I also have only the evidence of the complainant who appeared credible, the complainant has met the burden of proof required and the respondent has not successfully rebutted same.  In all the circumstances therefore, I find that the complainant was unfairly dismissed, and I uphold the complaint.

With regards to efforts to mitigate his loss, the complainant gave evidence that he secured a position in October 2021 and then another position was secured on 04/7/2022 and that his current salary now is less than he was on previously. 

I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress in this case.  The complainant secured employment but, on less pay, than he previously had.  No other evidence was made by the complainant regarding efforts he made to mitigate his loss.  This does not meet the standard set out by the Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) which sets out the complainant should “employ a reasonable amount of time each weekday in seeking work.”

Taking into consideration all the circumstances I award the complainant €2,666.

I find that the complainant was unfairly dismissed, and I uphold the complaint. I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress in this case.  Taking into consideration all the circumstances I award the complainant €2,666.

Constructive dismissal, respondent did not attend