Complainant

Respondent

Parties

An Employee

An Agricultural Supplier

Representatives

Rory H Treanor BL instructed by Crushell & Co Solicitors

Jamie Quane BL instructed by Michael Devlin Solicitors

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-00058889-001

19/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00058889-002

19/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00058889-003

19/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00058889-004

19/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00058889-005

19/09/2023

The Complainant worked for the Respondent from 2016 and resigned in August 2023. His role involved selling agricultural products to farmers.

The Complainant claims he was constructively dismissed and that he had been penalised in having a commission scheme withdrawn from him. He alleges that this was due to him making protected disclosures about the roadworthiness of his work van and alleged mislabeling of product.  

The Respondent denies these allegations and submits that the commission scheme was withdrawn due to its failure to deliver better sales. They argue that the issues with the Complainant’s van were resolved and that there were no mislabeling of product.

The Complainant attended the hearing and gave evidence under affirmation. His representative Mr Traynor made detailed oral and written submissions on his behalf.

Where relevant I have referred to this evidence in the findings section of this decision.

Mr H the Respondent’s owner, attended the hearing and gave evidence under affirmation. Their representative Mr Quane made detailed oral and written submissions on their behalf.

Where relevant I have referred to this evidence in the findings section of this decision.

Complaints under the Protected Disclosures Act

The Complainant has submitted two complaints under the protected disclosures acts. Both relate to issue of commission and the allegation that the Complainant’s commission was stopped due to him having made protected disclosures.

In considering these complaints I must first determine whether protected disclosures occurred.

Section 5 of the Protected Disclosures Act sets out what a protected disclosure is.  

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, F12[7B,] 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in a work-related context

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

The Complainant cites two different protected disclosures which he alleges resulted in his penalisation.

The first was an allegation that the Respondent was mislabelling one of their products. The product in question was chlorhexidine which is used to prevent mastitis in cows. The Respondent orders in chlorhexidine from a manufacturer and repackages and sells it to its clients. It sells chlorhexidine at 5 parts per million (“ppm”), often referred to, inaccurately, as 5%. The Complainant noted that the Respondent had received Chlorhexidine at 3 parts per million (or 3%) and relabelled it as 5ppm. He alleges that his clients noticed it was less potent and complained to him that their cows were getting mastitis.

The Complainant is not entirely clear when he says he complained about this issue to the Respondent. The date he raised this issue is not outlined in his submissions. It is not referred to at all in his letter of resignation. In his oral evidence he originally said he raised this issue in July 2023 and then in cross examination he believed it was June 2023. He evidence in this interaction and the customer complaints was not particularly detailed. Mr H’s evidence was that the Respondent was waiting for a shipment from their manufacturer of chlorhexidine. There were under pressure to resupply and the manufacturer had chlorhexidine at 5 ppm but there were no labels available and they are required to have a label to transport the goods. Mr H’s evidence was that he agreed to the product being shipped to them with a 3 ppm and they would relabel it as 5 ppm which is what it actually was. Mr H did not remember discussing the matter with the Complainant and disputes that there was any customer complaints reported to him by the Complainant.

On balance I am of the view that the Complainant raised this matter in some form with Mr H sometime in June or July 2023. However, there is no evidence to suggest, from either party, that this was a particularly difficult or antagonistic interaction. Given the presumption set out by Section 5 subsection (8) “In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is”  I conclude that this undated interaction constituted a protected disclosure in that the Complainant reasonably believed that this information tended to show that the Respondent had failed to comply with a legal obligation to its customers. For the avoidance of doubt this finding is not a conclusion that the Respondent was mislabelling products. I note that the supplier has since written a letter explaining the situation and supporting Mr H’s evidence that this was simply a temporary measure to allow for goods to be transported. This is not pertinent to a finding as to whether there was a protected disclosure in June/July 2023.

The second was an allegation that the Complainant’s company van, a 2015 Qashqai was not road worthy. The Complainant, in evidence citied two specific times he brought this issue up with the Respondent via Mr J, Mr H’s son. There was an earlier issue in 2022 regarding the vehicle being serviced while the Complainant was on leave. There was a dispute in evidence as to whether the vehicle was actually serviced at that time and where the Complainant left it before his leave. However, he did not identify any supposed protected disclosure around this period. The Complainant appears to have brought this issue up for context.

In 2023 there is a clearer series of interactions. On Sunday the 2nd of April 2023 the Complainant texted Mr J about the vehicle.

“Can you get a wheel for the Quashqai, keeps going flat, there is a crack in the rim”

He responded.

“Yup we’ll sort it tomorrow tbh I’d say your going to have the 162 shortly s in next week so if you want to your man local to you get him to flog sealer on it ti get you over the next few days gives me time to get the new one ready for you.”(SIC)

The Complainant then followed up twice, once on the 5th and then again on the 12th looking for a new wheel. He did not receive a reply as of the 12th . Mr H’s evidence was that he had difficulty sourcing him a new wheel but was able to purchase one shortly after the 12th.

On the 27th of June 2023 the Complainant brought the vehicle into a garage.  He was told it was dangerous for use and that it needed to be taken away and provided the mechanic’s certificate outlining the same. Mr J picked up the van from the garage. The vehicle was then extensively repaired. For the purposes of determining when the disclosures were occurring, I am satisfied with the Complainant’s evidence that he was bringing these issues up regularly for a period of weeks between early April and late June 2023.

Again given the presumption set out by Section 5 subsection (8) I find that these were protected disclosures as in that in the reasonable belief of the Complainant they tended to show that the van could have been a health and safety risk. I would again restate that this is not a conclusion that it was a safety risk just that by raising the issue the Complainant was making a protected disclosure. I note that the Respondent has provided the CVRT certs and their evidence that the van continues to be used by the Respondent.

The Complainant alleges that the above disclosures resulted in his penalisation by the Respondent. Specifically, a decision to do away with an existing commission entitlement which he says benefitted him greatly.

The Complainant’s evidence was that he had always been paid commission at 10% of gross sales. By the summer of 2023 he had not been paid it for a number of months. The timeframe of this period of outstanding commission is unclear, in an email on the 10th of July he states he hasn’t been paid commission for two years.  On the 7th of July he had a meeting with Mr H who told him that they were treating the 10% figure as a gross figure and he’d have to pay tax on it. The Complainant didn’t agree with this approach and stated that he had always got it as a net figure. He wanted the Respondent to pay him by cheque and to not transfer the money through his bank account. He declined to say why when asked by Counsel for the Respondent.

The Complainant sent an email on the 10th of July restating his objection to the proposed change. In that email he states clearly that the figure owing to him is €2567.70 net.

Following this there was a proposal that they address the matter through an increase to his base wage. The Complainant’s position is that only a €700 net increase per week will suffice. This would have over doubled his salary.

The evidence of Mr H was that the Complainant initially didn’t get commission. In 2019 a new product was being sold but not doing terribly well. This was called Aura calf. The Complainant outlined to him that he would sell it but only if he got commission. The Complainant disputed this when giving oral evidence but I note the Respondent has furnished an email from October 2019 where he directly went to the supplier rep indicating that he was getting nothing for selling the product and suggesting they came to an arrangement themselves. The rep forwarded the email directly to the Respondent and I presume after this they came to some sort of arrangement at that point.

Mr H’s evidence was that they agreed to 15%. While the Complainant did get a commission payment for another product as well the Aura calf was the main product and was worth up to one and a half thousand euro per annum. The Complainant is a part-time farmer himself and Mr H initially paid the commission as credit in his own account with the Respondent. The Complainant then began using other suppliers so the commission needed to be paid via the Complainant’s bank account and a deduction would need to be made for tax. The Complainant wasn’t satisfied about this.

Mr H’s evidence was that during the summer of 2023 he had a back injury and had the time to review the Respondent’s sales against their actual income. He came to the view that the commission scheme agreed with the Complainant wasn’t actually working and decided to discontinue it. The Respondent provided financial records to support this position. Mr H paid the outstanding commission and paid the tax rather than deduct it. He decided to discontinue to the commission going forward.

As outlined earlier in the decision, given the presumptions provided for in the act, I conclude that protected disclosures did occur in April and June 2023. Section 12.1 of the Act provides that An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

The commission scheme was discontinued shortly after these protected disclosures were made. The Act defines any “unjustified detriment” as penalisation. The act further provides at 12.7C that: …. the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.

As such the burden in on the Respondent to establish that the protected disclosures did not cause the revocation of the commission scheme. On review of the evidence, I am satisfied that they have met that burden. The dispute regarding outstanding commission long predates the disclosures. The Complainant’s own email places it as outstanding for two years. The parties could not agree how to resolve matters and when the Respondent proposed to address things through a wage increase the Complainant responded with an entirely unreasonable demand. I found Mr H evidence clear and credible. I think he reviewed how effective the scheme had been and the problems he was facing with the Complainant and regularising matters and ultimately decided it wasn’t worth it. I generally preferred Mr H’s evidence over the Complainant who was inconsistent and unclear on key details of the commission arrangement. I note that he came up with different figures as to its worth and how long it was outstanding for and that he failed to adequately explain his approach to the supplier rep before the scheme was agreed in 2019.

I conclude that the changes in the commission arrangement in July 2023 were unrelated to the protected disclosures.

Complaint under the Unfair Dismissal Act

The Complainant submitted his resignation on the 23rd of August 2023.

In his letter of resignation, he cited the following reasons:

The first was his concern over the state of the Nissan Quasqhai referred to above. He stated that he brought the condition of the van to their attention on numerous occasions and that it could had possibly caused injury to himself or others. He acknowledges that this issue was resolved as of July 2023.

The second was the issue of his commission which he states was a cut in wages.

The third issue related to a matter of cheques from two customers that the Complainant dealt with. Their cheques had gone missing and but had then been cashed by the Respondent. The Complainant did not accept Mr H’s explanation for the matter and believed that is personally caused him reputational damage. He also alleges that it provoked a change of behaviour towards him. 

Finally, the Complainant noted changes to work practices and in particular customer report forms.

The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns.

This is outlined in section 1 of the act which defines dismissal as to include:

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,

This places the burden on the Complainant to demonstrate that either the conduct of the Respondent was so unreasonable they were entitled to resign (“the reasonableness ground”) and/or that the Respondent breached a fundamental term in their contract (“the contract ground”).

Or as the UK Court of Appeal put it in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221:

“is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving. He can go, with or without giving notice, and claim compensation for unfair dismissal”

“If the employer is 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 then the employee is entitled to treat himself as discharged from any further performance. If he does so, he then terminates the contract by reason of the employer’s conduct. He is constructively dismissed”

The Complainant has submitted three reasons which could come under the reasonableness ground for constructive dismissal.

At the time of his resignation, he alleged that his van had been in such a poor condition for a long and that it was a danger to him and others. The Complainant has failed to prove this assertion generally. At one point in June 2023 the van was taken off the road after he brought it into a garage. However, it was then repaired and returned to service. It had passed its road annual CVRT checks. In any event the issue had been resolved by the time the Complainant had resigned so I do not think his concerns about the van could have reasonably been said to have caused the Complainant’s constructive dismissal.

The issue of the cheques was a key focus of the Complainant’s evidence, but it is difficult to see how it reasonably caused his leaving in August 2023. The Complainant’s case is that is 2021 with cheques he had received cheques from two customers. Each gave him two cheques, one of which was postdated to cover the following month.  He handed them all in and the following month the amount owed on the second cheque reappeared on his collections list. He had to follow up with the customers to obtain further cheques but after querying it with them they revealed the cheques had been cashed. When they got copies of the cheques they had been signed at the back. He felt there was the face of the company and there was a suspicion there on their part created by the issue. Mr H’s evidence was that the issue was simply an error and he spoke to both customers and there was no ongoing problem nor any inference that the Complainant had done anything wrong.  The Complainant appears to have wanted further investigations to have been made and seems to believe the Respondent’s failure to follow up in a way that satisfied him somehow caused the Complainant’s constructive dismissal. I am of the view that this was ultimately a matter for the Respondent to determine not the Complainant.  I do not find that these events resulted in the Complainant’s constructive dismissal. Similarly, the changes to work practices cited in the resignation letter were entirely within the Respondent’s purview I do not accept that these could be grounds for constructive dismissal either.

Finally, there is the issue of the commission scheme. As outlined above a breach of a key term of an employee’s contract can cause their constructive dismissal. There was no contractual or other document governing the scheme which allowed the Respondent to unilaterally withdraw the scheme. There are certainly scenarios where withdrawal of a commission scheme could be grounds for constructive dismissal. However, I am not satisfied that this is one of them. As outlined above I have preferred the evidence of Mr H on this issue over that of the Complainant.

I note that the commission scheme was not a condition of the Complainant joining the Respondent. I am satisfied that it came about, as Mr H outlined, that the Complainant insisted on commission if he was going to sell the new product aura calf. It was an added benefit linked to a single product that arose in late 2019. On the Complainant’s own evidence, it appears he was never paid commission regularly. It appears to have been paid in 2020 and some of 2021, though by way of credit to his own purchases from the business. When the Complainant stopped purchasing from the business sometime in either 2021 or 2022 the Respondent ceased paying commission due to a concern about payment methods and tax implications. The value of the commission was also limited and unclear. While the Complainant at times outlined a figure of four or five thousand a year, his own email of the 10th of July 2023 he seemed to recognise a value which was in line with the figures Mr H’s outlined in evidence, of between one thousand and one and a half thousand euro per annum. I am satisfied that the Respondent determined that this scheme was not working out for the business and that it failed to deliver significantly better sales of aura calf, which was the whole purpose of the scheme in the first place.

Looking at the issue of commission in the round I am of the view that the Complainant has failed to establish that the commission scheme was an essential term of his contract and therefore not a ground for constructive dismissal.      

As I have found there was no dismissal in this case the Complainant’s claim for notice is also unsuccessful.

Terms of Employment Information Act

There is a dispute between the parties as to whether the Complainant received a contract which fulfilled the requirements of act and contained written particulars of a number of key terms of employment.

The Complainant’s evidence was that the Respondent had provided him with a document but it had been printed on existing text and was ineligible. The Complainant realised and handed it back. He was never issued with a further contract.

Mr H’s evidence was that he had updated all the contracts at the same time and had given a contract to the Complainant but he had returned it to him unsigned. Mr Traynor BL for the Complainant pointed out that this evidence had not been put to the Complainant in cross examination.

Section 3.1 of the Act requires an employer to give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment. The burden is on the Respondent to establish that this occurred. They have submitted an unsigned contract which the Complainant disputes ever receiving. In the circumstances I am not satisfied that they discharged their duty under the act.

Section 7 d) of the act sets out my jurisdiction for redress: in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G,  and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The Complainant was paid €593.60 per week. As such the total I can award in this matter is €2374. Given the length of his employment I believe I ought to award the maximum amount.

CA-00058889-001

I find that the complaint is not well founded.

CA-00058889-002

I find that the complaint is well founded and direct the Respondent to pay the Complainant €2374 in compensation. 

CA-00058889-003

I find that the complaint is not well founded.

CA-00058889-004

I find that the complaint is not well founded.

CA-00058889-005

I find that the complaint is not well founded.