ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00007011
Parties:
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Complainant |
Respondent |
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Parties |
A Worker |
A Company |
Complaint(s):
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Act |
Complaint/Dispute Reference No. |
Date of Receipt |
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Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00009542-001 |
06/02/2017 |
Date of Adjudication Hearing: 22/09/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
Section 8 Unfair Dismissals Acts, 1977 and the referral has been made within six months of the initial circumstances of the relevant dispute/contravention.
Summary of Complainant’s Case:
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The complainant commenced his employment with the respondent in November, 2015. He was employed to sell furniture and carpets. His salary was agreed at €40,000 per annum together with 2% commission on sales. After a few months the respondent owner director came to him and said that his salary was being reduced to €35,000 per annum due to the number of errors he was making. He could only recall one error and that was the customers fault. That issue was easily rectified. The complainant agreed to the reduction. A few months after that he was headhunted by another firm. They offered him €40,000 plus commission per annum. He told the owner director about the offer and asked if the respondent could match it. The respondent stated that on the basis that they were anxious to keep him, they would match it. In December he received another offer from the same company as before. This time the offer was €50,000 plus commission per annum. The respondent stated that they would match that offer but asked that he wait until February for the increase. On the 28th January 2017 he was dismissed out of the blue. He started with the aforementioned third party company a few days later. However, the offer was reduced to €35,000 by the time he got back to them. He is paid €700.00 gross per week plus 1.5% commission on the shops turnover. The turnover is approximately €100,000.00 per month. |
Summary of Respondent’s Case:
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The respondent agrees with the complainant’s evidence up until December, 2016. The complainant did come to the respondent in December and stated that another firm had offered him €50,000.00 plus commission. The owner/director said that he would have to talk to the other directors and would have to review the accounts at the end of January. When the accounts were finalised at the end of January it was apparent that they could not afford to pay the complainant €50,000.00 per annum. The owner/ director told him that the respondent couldn’t match to €50,0000 offer. The complainant then told him he would be leaving to go and work with the other company. He asked him for a letter of dismissal. The respondent thought he had to give him a letter so he drafted one himself and gave it to him. The owner/director was very clear in his evidence that the complainant was not dismissed, he left his employment to go and work for the other company. The complainant never produced documentary evidence in relation to the offers from the other company. The complainant has no loss. |
Findings and Conclusions:
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I am asked to decide two issues. Firstly whether the complainant resigned his position or was dismissed from it and secondly, if the complainant was dismissed, was the dismissal unfair. The complainant approached the respondent twice in as many months requesting that they meet the offers made by a third party company. He did not produced documentation in relation to those offers. Despite the lack of documentary evidence, the respondent took him at his word. They matched the first offer. The complainant approached them again in December stating that the third party company had increased the original offer by €10,000. Again, he had no documentary evidence in relation to the offer. He stated that the respondent agreed to pay him € 50,000 commencing on the 1st February and then, without warning fired him on the 28th January. The respondent stated they told the complainant they would have to assess their accounts at the end of January and wouldn’t be in a position to make a decision on the issue until then. Once they informed the complainant that they would not be in a financial position to increase his salary he said he was leaving for the other company. He did leave and started with them a few days later. I prefer the respondent’s evidence. On the balance of probabilities I find that the complainant resigned his position in order to go and work for a competitor on a higher salary than that with the respondent. It wasn’t until the left the respondent that he realised that the third party offer had been reduced. Having carefully considered the evidence of the parties I find that the complainant resigned his position with the respondent and accordingly his claim pursuant to Section 8 Unfair Dismissal Acts, 1977 fails. |
Decision:
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.
The complaint ADJ 7011, CA 9542 fails.
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Dated: 20/11/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Key Words:
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