Complainant

Respondent

Parties

Wilson  Bryan

Lynn Communications Limited

Representatives

Terry Gorry Terry Gorry & Co. Solicitors

Michael O’Sullivan ARRA HRD

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-00049833-001

25/04/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and one witness gave their evidence under affirmation while two witnesses for the respondent gave their evidence under oath.  Representatives were given the opportunity to cross examine the witnesses.

The respondent submitted that the complainant voluntarily resigned his position and received one month’s paid notice. It was submitted that throughout his employment, the complainant continued to have an expectation of a salary above what he was being paid.   The respondent submitted that there is evidence is that the complainant was in the marketplace for a higher salary.

The respondent submitted that it considered the complainants comment “I'm out of here” at the meeting of 28 January 2022 to amount to a voluntary resignation.

The complainant submitted that he had difficulties getting the pay and conditions to which he was entitled.  He raised the issue repeatedly and was told that the respondent could not afford to pay him what he wanted.

The complainant submitted that he was let go and furthermore that it would be perverse of him to terminate his own employment given the economic conditions that were prevailing at the time.  He submitted that there was a clear conflict of evidence, however it was submitted that he drew a reasonable inference that he was let go after multiple requests for his commission and the MD indicated that they “would have to go their separate ways”.

It was submitted that there was no evidence given in relation to grounds for termination

The managing director gave evidence that the complainant sought a change in his break times. This revised situation worked well until June 2021 just after the complainant’s probation period expired when problems arose with his time keeping. There was a review of yearly sales figures in November and the complainant was paid according to those figures.  He stated that the complainant expected more, and thereafter his mood changed. The witness stated that the complainant subsequently refused to attend a meeting with clients and, following an additional meeting, it was ultimately agreed to give the complainant an additional €5000 bonus.

Other issues arose, the complainant wanted to change his car and he also wanted to work from home. At a meeting at the end of January 2022, the complainant indicated that in the absence of those changes and additional money, he would not be in a position to remain working. Accordingly, the complainant resigned he was paid a month's wages up to the end of February and he received his expenses and holiday pay.

The witness stated that arrangements were made for the return of the company car, and it was agreed that it would be picked up on the 1st of March at midday. The car was parked in such a way that it couldn't be accessed, it was left without any fuel and the car itself was in a dreadful state in terms of smell, it was full of rubbish and there was paint spilt in the boot.

Under cross examination the managing director agreed that although timekeeping difficulties had arisen, no sanction was imposed, and that it was a dealt with through an informal conversation. He further stated that although the meeting in November was difficult the relationship didn't deteriorate, and that the complainant was always treated with the utmost respect. An additional meeting took place at the end of January, which was just a regular meeting, but the complainant repeatedly brought up the subject of remuneration. The managing director denied stating that we have to part ways or that we have to go our separate ways and only made reference to this after the complainant said, “he was done, he was out of here”. The witness confirmed that he received no resignation in writing.

The second witness, a manager for the respondent, described having a good working relationship with the complainant where they worked together closely.  He noted that the complainant never raised the issue of pay with him outside of any formal meetings and he was not involved in the meeting in January. He made mention that a small increase was given to the complainant. Under cross examination he agreed that any meeting he had with the complainant were typical meetings where a salesperson is looking for an increase but that this increase, he was looking for was a little contentious.

The complainant gave evidence of his previous experience in other companies. He stated that he had three or four meetings with the respondent prior to accepting the contract. He said he had sought 2.5% of the business but was told that this possibility would be looked at in six- or 12-months’ time. He said that he brought some business with him to the company. He noted that in his probation meeting in May 2021 he never received any verbal warning regarding any issue. He said that the annual review meeting in November, the sales figures for 11 months, and not a full year were used.  He also stated that as a sales guy you need a bonus structure to be set out clearly.

In relation to the January meeting the complainant stated that he queried the need to attend the customer meeting and a day later he was called to a meeting to discuss matters with the managing director.  The MD noted that the complainant refused to attend the client meeting and refused to do a follow up with another client. He also noted that there had been a disclosure of confidential information.  The complainant stated that the MD indicated that it was time we went our separate ways. He inquired of the MD whether he was sacking him, and he says that he was told yes, he was being sacked. He asked whether he could he have that in writing, but this was not forthcoming.

As regards mitigation efforts the complainant indicated that he had a list of companies that he contacted and was called to interview twice.  He obtained new employment at the end of April and therefore was out of work only for March and April. In relation to the company car, he indicated that the car was used constantly for site demos and that he had received a puncture in work that's why the boot was left in such a poor condition. The complainant confirmed that he sought work elsewhere and attended 8 interviews and/or business meetings regarding his job search. He indicated that he was not able to get sales job and so took on an engineering job.

Under cross examination the complainant confirmed that the terms of his contract were honoured and that he received a salary increase.  He also indicated that he had no issue with bonus and Commission, and he confirmed that the 2.5% of the company was not promised and was not in his contract but was merely aspirational.

Under cross examination it was put to the complainant that he did not spend time every day seeking employment and that he did not put in enough effort trying to mitigate his loss in accordance with the legislation. In response he indicated that it was a small industry with only a limited number of companies he confirmed that he took two weeks holidays and spent six weeks in job search.

The second witness for the complainant was his sister.  She stated that she received a phone call at around 1:00 PM on the 28th of January where the complainant indicated that he had been sacked. She indicated that he should come to her (she was working about 30 minutes away at the time) and meet for a cup of coffee. He looked devastated. He hadn't received a letter or anything else in writing.

The central issue in relation to this case turns on what happened at the meeting of 28 January 2022. In that meeting which was between the managing director and the complainant matters came to a head. Both witnesses came across as reasonably credible however it is not possible to indicate that the testimony of one was false while the testimony of the other was true. It is equally possible to consider that the managing director said, “it's time we went our separate ways” as it is to consider that the complainant said, “that's it I'm out of here”.

However, when matters such as the ending of an employment relationship are being considered it is incumbent upon an employer to be satisfied that an employee has, in fact, resigned. Having regard to the circumstances of the end of this employment relationship, I find that a reasonable and prudent employer would have sent out a simple written confirmation of an employee's resignation or otherwise confirmed matters.  On the basis of the evidence before me, I am not satisfied that the complainant resigned from his position and accordingly, I find that he was dismissed.  

Section 6(4) of the Unfair Dismissals Act, 1977 states as follows:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

 (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

 (b) the conduct of the employee,

 (c) the redundancy of the employee, and

 (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

On balance, and as no reason was given such as outlined in Section 6(4) of the Unfair Dismissals Act, 1977, I find that the complainant was unfairly dismissed.

The complainant outlined that he was out of employment for six weeks. He indicated that he made some efforts to mitigate his loss, however I'm not satisfied that the complainant has established that he did all that he could to mitigate his loss or, at the very least, made sustained efforts to mitigate his loss. He did make some effort and the submission was made (but not challenged) that the industry is small and therefore only a certain level of effort could be made. Having regard to the efforts made by the complainant to mitigate his loss I'm satisfied that it would be appropriate in this case to award him 50% of his loss for the six-week period.

The complainant submitted that his gross monthly salary amounted to €5416.67 and accordingly his gross for a six-week period amounts to €8125.  I consider that an award of compensation of €4065.50 (equating to 50% of the loss incurred by the complainant) is just and equitable having regard to all the circumstances of this case.

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that complainant was unfairly dismissed.  I award compensation of €4065.50 with I consider to be just and equitable in all the circumstances of this complaint.

Unfair Dismissal - dismissal established – unfair - award of compensation – 50% of loss awarded in the circumstances