ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050876

Parties:

Complaints:

Date of Adjudication Hearing:  18/10/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and section 27 of the Organisation of Working Time Act 1997and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public.  That may result in decisions no longer being anonymised.  Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation.

In the hearing, sworn evidence was given by the Complainant, the Respondent an Accountant and an employee of the Respondent who keeps an account of the business.

Background:

The Complainant worked as an Insurance Agent for the Respondent from 2018.   He became an employee in 2021 due to Central Bank regulations.   He contends that he was unfairly dismissed and that he did not receive the provisions of the legislation in respect of annual leave.

Summary of Complainant’s Case:

The Complainant made numerous written and oral submissions summarised as follows:

CA-00062349-001

The Complainant stated that he started working for the Respondent in 2018.  He never received annual leave or payment in lieu of annual leave not taken over 5 years. 

CA-00062349-002

The Complainant contends that when he was conducting some business with Mr M from an Insurance company he deals with, he was told he (the Complainant) was “no longer working for Mr Woods”.  He contends that he did generate new business for the Respondent in 2024 and that he was unfairly dismissed by the Respondent.

Summary of Respondent’s Case:

The respondent will give evidence as to the following events:

2018                     Complainant commences working for the respondent on a ‘commission only’ basis

31/10/21             Complainant commences employment. He was not issued a contract. Both parties had agreed that the complainant would be paid a salary of €2,500 gross per month plus commission, both of which were not to exceed 60% of the total commission paid by the insurance companies to the respondent.

Dec 2023             The complainant informs the respondent that he is not going to produce any more ‘new business’ for him, that he subsequently has denied saying. He subsequently failed to produce any new business in 2024 so his behaviour substantiated his words to the respondent.

04/01/24             Meeting in Cork attended by the complainant, the respondent and Mr. AD, Accountant.

Respondent pays the complainant €5,000 so that he would cease his intimidatory bullying and stressful behaviour.  Discussions occur regarding the complainant transferring existing business away from the respondent.

18/03/24             Complaints filed with WRC         

CA-00062349-001.

The Complainant has brought a complaint pursuant to section 27 of the Organisation of Working time Act, 1997. In his application form he states, “I did not receive my paid holiday/ annual leave entitlement.” The complainant is claiming ‘holiday pay’ from 2018 to 2023 in the sum of €2500 per year. The respondent will confirm:

2021. That the complainant only became an ‘employee’ from the 31/10/2021.
2022. That the complainant was paid €2500 gross per month whether he took holidays or not.
2023. That the complainant filed complaint -001 on the 18th of March 2024. 10. In that context, the respondent refers to s.41 subs (6) & (8) of the Workplace Relations Act 2015 wherein it states;

Presentation of complaints and referral of disputes.

(1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer. …

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. …

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The complainant is claiming ‘holiday pay’ from 2018 to 2023 in the sum of €2500 per year.

The respondent refers to HSE v McDermott [2014] IEHC 331 wherein the High Court in its report gave its opinions on section 6(4) of the Payment of Wages Act 1991 (the act of 1991) and, in the context of the instant case, their application to alleged ‘dates of contravention'.

Hogan J at para 19 of the report also stated (emphasis added): “Depending, of course, on the manner in which the complaint is framed, only complaints which “relate” to the last six months (or, if the Rights Commissioner is satisfied that there are “exceptional circumstances” which prevented the bringing of the complaint, twelve months) prior to the presentation of the complaint to the Rights Commissioner will not be time-barred”

As such the respondent respectfully submits that the said ‘framing of the complaint’ needs clarification here, i.e., clarification that the date that the complainant has ended his employment with the respondent is necessary in order to give effect to section 41 of the Workplace Relations Act of 2015. This is particularly relevant with regard to clarify those dates outside of which this complaint is statute barred.

The respondent submits that the complainant informed the respondent after Christmas 2023, that he would not be producing any more ‘new business’ for him. The respondent regrets that an exact date is not forthcoming but that the subsequent behaviour of the complainant confirms that position. Nonetheless, the respondent paid him his salary for the months of January and February 2024.

In consideration of the above, the respondent respectfully submits that:

1. The complainant was paid €2500 gross each month whether he availed of holidays or not, and
2. Were the Adjudication Officer to find this complaint to be well founded, then the reference period is a period of 6 months prior to the date of the termination of his employment by the complainant.

CA-00062349-002

The respondent submits that the complainant informed the respondent after Christmas 2023, that he would not be producing any more ‘new business’ for him. The respondent regrets that an exact date is not forthcoming but that the subsequent behaviour of the complainant confirms that position. Nonetheless, the respondent paid him his salary for the months of January and February 2024.  It is respectfully submitted that the complainant walked away, and technically retired, having informed the respondent that he was no longer going to produce ‘new business’ for him.

Critically, he was not dismissed, and he was not constructively dismissed.

Constructive Dismissal.

Section 1 of the Unfair Dismissals Act, provides for such a situation where: “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 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.”

In the case of Nicola Coffey v. Connect Family Resource Centre ltd. (UD 1126/2014) the Employment Appeals Tribunal held “[t]he bar for constructive dismissal is very high.”

In A General Operative v. A Religious Society (ADJ-00002814) it was held by the Workplace Relations Commission that in claims of constructive dismissal (emphasis added):

“The critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment…In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.” It is submitted that that is not the case here.

Given the similarity in context, the respondent places particular reliance on the case of Ian Flaherty v College Freight Ltd. [2009] 6 JIEC 2901, where it was “accepted that there was a less than harmonious working relationship between the claimant and DM but did not accept that the level of that relationship was such that the claimant could show the conduct of the respondent was so unreasonable so as to justify a claim of constructive dismissal.”

The respondent respectfully submits that this is the case in this situation. The respondent has not behaved unreasonably and indeed was so bullied and intimidated by the complainant that he paid him €5000 in January of 2024 in order to stop the complainant from continuing his stressful and damaging behaviour.

This sum was advanced and paid to the complainant, but it was not owed to the complainant. In his account the Respondent states “However, due to being bullied into it, I did transfer into his account €5,000 on 04/01/2024 as an attempt by me to pay him to stop his behaviour towards me. To be sure, he was not owed this money.”

Section 6(4) of the UD Act provides:

"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:…

… (b) the conduct of the employee…"

The respondent has not behaved unreasonably in direct contrast to the wanton disregard of the complainant and the bullying and intimidation that he has brought to bear on the respondent.

Failure to exhaust internal remedies

Notwithstanding the absence of an express contract, and offering nothing but a scant denial of his statements that he was not going to produce any more ‘new business’ for the respondent, the complainant also failed to enter a grievance with the respondent.

Findings and Conclusions:

CA-00062349-001

The claim here is for payment for 5 years annual leave.

Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

The complaint was received on 19/03/2024.

The cognisable time period therefore is from 20/09/2023 unless the time period is extended as provided for in Section 41 (8). 

Section 19 (1) of the 1997 Act provides that  … an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

( a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment)”.

In this instant case, it is common case that the Respondent did not provide the Complainant with the provisions of the Act in relation to annual leave.  When the employment ended, the Complainant was entitled to minimum 4 weeks annual leave.  I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €2,500 compensation.

CA-00062349-002

In this instant case, dismissal is in dispute.  The Respondent contends that the Complainant ended his employment relationship with the Respondent when he told him he was “not going to generate new business” for him.  This was in December 2023/January 2024.  The Complainant stated that the first he knew of the ending of the employment relationship was when he heard from an Insurance employee that he was not working for the Respondent.  The very acrimonious manner in which the employment relationship fractured in or around December 2023 led to the Respondent contacting the Gardai and evidence was given of the stress caused to the Respondent by the Complainant’s actions.  During the hearing, the Complainant emphasised his strongly held belief that the commission he was due on transactions was wrongly calculated.  Another cause of major dispute between the parties was whether ‘new business’ was generated pre 2024 or post January 2024.  I note in an attempt to close the dispute, a deal was brokered by Accountant Mr AD and the sum of €5,000 was paid to the Complainant.   However, following payment of his wages/commission in January and February 2024, the complainant was left with the impression that he was still employed.  I note the Respondent’s evidence that when it became clear that the Complainant was not generating new business, he stopped paying him after February 2024. 

I note it is common case that the Complainant became an employee in 2021 on foot of a requirement by Central Bank regulations.  The rights and responsibilities that are conferred on both parties due to the employment status mean that in normal circumstances if an employee refuses to carry out the duties for which he/she is employed, that employee can be dismissed, usually following due process.  In this instant case, there was no letter of resignation and no letter of dismissal.   There was no due process followed in which disciplinary action was taken against the Complainant.

In the circumstances, I find the Complainant was unfairly dismissed.  I uphold his complaint.  I find compensation to be the appropriate remedy in the situation where there has been an obvious complete breakdown of the employment relationship.  As the Complainant made a significant contribution to the situation, and there has been no evidence of mitigation of loss, I award him the sum of €2,500 compensation.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00062349-001

I have decided the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €2,500 compensation.

CA-00062349-002

I have decided the complaint is well founded and I award the Complainant the sum of €2,500 compensation.

Dated:   12-12-24

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: