EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1471/2014
WT233/2014
CLAIMS OF:
Cathal McEvoy
- claimant
Against
Control Hydraulics Limited
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr. T. Gill
Ms H. Henry
heard this claim at Galway on 20 January 2016 and 18 April 2016
Representation:
Claimant: Mr David McCarroll, Ronan Daly Jermyn Solicitors, Aengus House, Dock Street, Galway
Respondent: Mr Alan Ledwith B.L. instructed by Ms Sarah Lawn, Mason Hayes & Curran Solicitors, South Bank House, Barrow Street, Dublin 4
Summary of Evidence:
At the commencement of the hearing the claimant withdrew the claim under the Organisation of Working Time Act 1997. Dismissal is in dispute in this case, therefore the Tribunal heard the claimant’s evidence first.
The claimant commenced employment with the respondent in January 2013. He had previously worked with another company which had closed down. He had worked with the director of the respondent company (SD), who approached him after that business had closed offering him a position. The claimant had twenty years experience in hydraulics and in sales. The claimant had high levels of training in the area of hydraulics and filtration. The claimant’s contract of employment was opened to the Tribunal. The claimant’s contract provided for a three day week although it was accepted the claimant worked five days per week. He came to the job with his own vehicle, laptop and tools. The claimant successfully completed a three month probationary period. For the period November 2013 to July 2014, the claimant had received a commission and was left short €2700.00 by the respondent. He was performing well in his role and making money for the company. Issues around the claimant’s basic pay arose during 2013 with some payments not received when due. He made the respondent aware of his dissatisfaction regarding his pay. The claimant’s contract was due for discussion, and in November 2013 he initiated a discussion with SD. He sought new tyres for his vehicle, and as he had provided his own vehicle for the business a car allowance of €50 was agreed.
The claimant reported directly to SD and he had no difficulty with that. They met regularly to discuss work on hand. A new contract of employment proposed a reduction in salary at a time when he was expecting an increase. A significant reduction in commission was also proposed in the new contract. In January 2014, although the claimant was still not fully paid his commission he remained committed to the respondent. An email dated 25 March 2014 was opened to the Tribunal. The claimant had sought an explanation as to why he had not received his commission, and the respondent failed to address the issue. In attempting to agree a new contract, the claimant agreed to a reduction on sales commission, but sought to maintain the commission rate on repeat sales.
On the 15 April 2014, SD proposed a further reduction of commission on repeat sales from 10% to 8% which was not accepted by the claimant. At this time there was no strict reporting structure in place. SD sought sales reports on the 20 May 2014, details of which were supposed to be available on the invoicing system used by the company. The system had technical problems and remote access was not working. The claimant was providing sales information in order to generate purchase orders and invoices were processed. The technical issues were regularly discussed with the respondent who failed to show any urgency in dealing with the claimant’s concerns. Although the claimant provided sales reports, he was reluctant as he was concerned this would be an acceptance of the new proposed contract. The claimant tried to conform with reporting requests from SD, but found that he was unable to access pdf attachments which SD accepted. The claimant’s email dated the 8 July 2014 was opened to the Tribunal and a sample sales report. SD responded with a new format request leaving the claimant unsure of where he stood. At this stage the claimant had received four reporting methods in one week. The claimant did not resign his position in the email of the 15 July 2014 and returned to work as normal on the 16 July and every day after that. The claimant accepted that the content of his email was impertinent because he felt frustrated and felt that SD “just wanted me out and should just come out and say it”.
Contract negotiations had stalled. Further emails exchanged between the claimant and SD were opened to the Tribunal. The claimant did not resign in his emails and attended work as normal on the 13 August 2014. The claimant did not consider resigning and responded to emails from SD with reassurances that he was not resigning. He attended work on the 14 August and continued to generate sales for the company. Over the period July 2014 to September 2014 no format for reporting sales figures was agreed.
The claimant received an email dated 18 September 2014 from SD requesting sales reports and ignored the fact that no reporting format was agreed. The email threatened the claimant with dismissal if sales reports were not submitted by the 26 September 2014. The claimant’s access to the company email was removed on the 19 September and as result he had not received the email with his dismissal letter on the 19 September. The letter indicated that the respondent was accepting his resignation. The claimant had sent the sales report before the deadline.
The claimant denied any involvement in another business which breached his contract of employment. SD had knowledge of the claimant’s directorship of a company owned by a relative which had not traded. The claimant accepted that it was reasonable for his employer to seek sales details and only had an issue with the number of proposed formats for reporting. The claimant did not accept that he told SD to find a replacement for him, but rather informed him that he was looking at other job opportunities. The claimant confirmed that he had interviewed for alternative employment in August 2014. He was contacted and approached by a company and did not actively seek alternative work.
On receiving the letter dated 19 September, the claimant said he was devastated and his initial reaction was “just do what you have to do”. Although the letter accepted the claimant’s resignation, it did not cross his mind that he could email the respondent to revoke the resignation. He interpreted the letter as his dismissal.
The Tribunal heard evidence from SD for the Respondent Company. At the outset, the witness gave extensive evidence explaining the monetary / commissions amounts and monetary losses.
The witness is the owner of the respondent company which he started in 2012. He was the only person in the company at the time. He had worked with the claimant previously. He contacted the claimant and offered him a fixed term contract from January 2013 to October 2013. The claimant was to report to him.
The witness explained that as the claimant was not working in the office and worked on his own, it was important to know how the claimant spent his time as his role was integral to managing customer relations.
He witness stated that he had sought reports from the claimant over a long period of time. He had sent the claimant spread sheets and nothing was returned to him. He stated that the claimant was resistant to furnishing reports. In eighteen months he claimed he received two reports from the claimant.
The witness was of the opinion that the claimant wished to leave his employment as he heard that he was actively seeking employment elsewhere.
Numerous e-mails were opened to the Tribunal as to whether the claimant had resigned from the company.
The witness regarded the e-mails as indicating that the claimant has resigned his position.
Determination:
The claim under the Organisation of Working Time Act, 1997 was withdrawn.
While the claimant expressed the possibility of resigning by email communications, he did not in fact unambiguously and unconditionally resign his position. Undoubtedly, there were communication difficulties between the parties which may have been resolved by the application of fair procedures if such had existed.
The Tribunal in a majority determination, one member dissenting, determines that the claimant was unfairly dismissed. The Tribunal determines that the most appropriate remedy is compensation, and awards the claimant the sum of €11,000.00, under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)