Complainant

Respondent

Parties

Eugene  McDonough

IT Systems Ltd

Representatives

Self Represented

Dundon Callanan LLP

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-00072088-001

03/06/2025

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

CA-00072088-002

03/06/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00072088-003

03/06/2025

The Complainant was employed as a Head of Business Development and submitted complaints that he did not get a contract of employment, that he was not paid sales commission due and that he was constructively dismissed.

The Complainant was employed from January 2017 to 28 March 2025 (with gardening leave to May 2025) as Head of Business Development. He resigned and claimed he was constructively dismissed due to the actions of the Respondent by not paying his sales commission due, by a change in management style towards him and the lack of a contract of employment. He alleged he was not paid sales commission due of 22,500 Euros for 2023 and approximately 36,000 Euros for 2024. He also claimed he did not receive a contract of employment at the commencement of his employment or at anytime since.

The Respondent denied the Complainant was unfairly dismissed and stated that he resigned voluntarily and that he refused to perform legitimate instructions from Directors of the Company.

The Respondent stated the Complainant was provided with a job description at the commencement of his employment but accepted this did not contain all the details required by the Terms of Employment (Information) Act 1994.

The Respondent denied that there was any agreement to provide sales commission at 33% of margin over 144k as claimed and advised that any sales commission/bonus due had already been paid to the Complainant and he was not due any outstanding payments.

Both the Complainant and the Owner, Mr. David Dalton gave evidence under affirmation to the Hearing. Both the Complainant and the Owner made substantial pre Hearing submissions supported by a large amount of communications/data.  A job description was submitted but no evidence of a contractual agreement regarding a commission was supplied. The parties gave evidence relating to the three complaints.

The Complainant gave evidence he got no written statement of terms and he had no formal contract. He advised he and the Owner had conversations about terms but they were never put on paper. The Respondent Representative advised some changes to the terms were documented including a salary increase of 5K.  He advised the Complainant was given a written document about the job at the commencement of employment and the Complainant had agreed with him that he advised the Owner they looked good at the time. The Respondent Representative advised the document does not provide for any commission. The Complainant advised everything about commission was informal at the start and he would put forward what he thought he was due as in 2022 he was paid 4,300 Euros commission. He advised the 2022 commission was based on 33% of gross profit. He advised the Owner tried to make it 10% going forward in a conversation and he was willing to take that but it never was formalised.   He advised he was claiming 38,488 Euros for 2024 as only 5,840 Euros was paid. He advised that he was promised a pension would be put in place at the end of 2023 but it never materialised. It was put to the Complainant that Mr. Dalton had never agreed to a 33% commission and the Complainant stated the years 2019/2020 and 2021 all had a 33% commission.  It was put to the Complainant that the figures he had submitted for commission was never an agreed calculation and based on his own figures and not verified margin figures.. Mr. Dalton gave evidence that there was no written or verbal agreement for a 33% commission as claimed and that he would make a bonus payment before Christmas to all staff as a general bonus and it was not based in the Complainant’s case on a sales commission of 33% of gross margin over 144k. He advised there was not enough sold in some prior years to earn a commission. The Complainant advised he had been agreeable to the 10% commission but when he found out recurring revenue would be excluded he did not agree to this number. Mr. Dalton stated recurring revenue was never discussed to be included and it was not standard in the business to include recuring revenue. The Complainant advised he accepted the 5K increase in his wages instead of commission as it was the only way to keep his job. Mr. Dalton stated they never had a discussion about 33% commission. The Complainant advised the issue was ongoing when he left the employment.

The Complainant advised the Company had no formal grievance procedure. He advised he worked long hours over the 7 years he worked for the Respondent and the issue came to a head over the non payment of commission and due to micro management by the Owners wife who had become more involved in the business. The Complainant advised he had raised issues in 2024/2025 and sent the odd email. He advised he did not want to leave but the events of March 28th were the last straw. He outlined an issue with another Employee and things started to change with the Owner after that. He advised he felt not listened to and that he had not told another employee to mind her own business. He advised the bonus not being paid was a real issue and it was being pushed down the road. He advised he had to call Mrs. Amanda Dalton to get approval for time off and this was a substantial change in his work environment. It was put to the Complainant that the Owner asked him to stay when he resigned and he stated that actions speak louder than words.  The Complainant advised he felt micro managed doing his sales job and he knew how the system worked with setting up appointments particularly in the education sector. It was put to the Complainant that he was paid 5K net before Christmas 2024 as a gesture of goodwill and he accepted that payment and did he accept that was always the arrangement regarding bonus/commission i.e. a Christmas bonus.. The Complainant denied this. The Complainant advised he never had any issues with Mr. Dalton over the years but the situation became untenable. He advised pressure built up over the months and the lay out of rooms were changed for staff to try lessen conflict situations. He advised that Mrs. Dalton wanted him to spend more time with clients and he wanted to do the role his way. He was asked was he agitated and disrespectful to Mrs. Dalton and he denied he was. He advised he was called by Mr. Dalton about something he said to Mrs. Dalton and he needed to speak to him about it. At the meeting the Complainant denied making certain comments to Mrs Dalton and then informed Mr. Dalton “I quit”. The Complainant advised that you could just not arrive at a Secondary School without an appointment and primary schools were more flexible. He advised it was totally incorrect that he told Mrs Dalton to mind her own business.  The Complainant outlined issues in the past with another Employee and how it was dealt with. He felt issues he raised were brushed off. Mr. Dalton advised how issues in the past were dealt with informally and were to a large degree resolved that way. The Complainant advised in September 2024 email regarding taking time off and how he had to seek approval from Mrs Dalton and it was put to him that this was part of a structured way of trying to improve the company’s organisation after a review and it was a reasonable management instruction. The Complainant agreed but felt the communication was poor. An issue of attendance at a Funeral was also discussed and how, in his view, approval unreasonably changed from the morning to the afternoon. The Complainant confirmed that the Directors spoke to him about getting too involved in technical work and not leaving it to the Technical staff and to concentrate on sales and Mr. Dalton gave an example of things going wrong because the Complainant got too involved in an area that he was not up to speed with technically. The Complainant stated he was getting involved to solve customer problems. The Parties also discussed an issue with another sales staff member and issues with communication.

It was put the Complainant that he had started his own business and he advised he had and that he was on social welfare until December 2025 and that he now earns about 3,000 euro per month from his own business. He advised he was offered one commission based job after he left and he was not mentally up for it at the time to consider it. Mr. Dalton gave evidence as to how he tried to get the Complainant to focus on sales work and leave the technical work to the technical staff and he stated the Complainant stormed out of the office a couple of days before he resigned. He advised he spoke to the Complainant about his interactions with Mrs. Dalton and his refusal to take instructions. He advised the Complainant had a pattern of refusing to do what he was asked to do. He confirmed to his Representative that it would be fair to say he was tightening the ship and he advised that he had shared a 5 year plan verbally with the staff. He advised there were ongoing difficulties between the Complainant and another staff member and that he found the Complainant sharp and unreasonable. He advised he would get involved with staff when issues arose and always took professional advice when necessary. He advised the Complainant never raised any issues at the meeting where he resigned and he told Mr. Dalton “Ive had enough of this” and he texted his resignation soon after the meeting. Mr. Dalton outlined issues with sales and the requirement for a plan to address the sales issues.  

Findings;

Complaint under the Terms of Employment (Information) Act.

The Complainant was given a job description dated Dec 12th 2016. This does not comply with the Terms of Employment( Information) Act 1994 requirements which were as follows;

“3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, 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, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) ….

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) …

(7) …”

The Respondent in this case provided the Hearing with a Job Description which was given to the Complainant at the start of his employment. While the Complainant’s representative acknowledged that the Job Description does not meet all the requirements of the Act he argued that the Complainant knew his terms and he was employed for some years without requesting same.

The Act requires that an employer shall give or cause to be given to an employee a statement in writing containing specified terms of the employee’s employment.  The obligation to provide the written statement of terms of employment is an obligation, under the Act, that rests with the Respondent. In this case, Complaints must normally be submitted within 6 or maximum 12 months with (reasonable cause for the delay) however I conclude that the breach is an ongoing breach and within time and the Respondent is in breach of the Act and the complaint is well founded. I award the Complainant four weeks pay which equates to 4,231 Euros.

Complaint under the Payment of Wages Act 1991

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employees and in particular section 5(6 )states.

“Where—  

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

The question for the Adjudicator to consider is what was properly payable regarding commission and then to establish what was actually paid. The history of bonus payments was varied and sometimes was paid as a Christmas Bonus based on the good will of the Owner or was not paid at all in some years. I do see that the Complainant has established a precedent for a commission formula as claimed and as there is no written agreement to that effect and a verbal agreement has been denied.  I find I cannot establish the claim for commission is properly payable. I find that having considered the submissions and evidence of the Parties the Complainant has not established that a commission payment of 33% of Gross margin above 144k was properly payable to him and therefore this complaint is not well founded. I note the claim related to 2023 may have been out of time but given the amount sought was not properly payable it fails at that hurdle.

Complaint under the Unfair Dismissals Act

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where conduct of the employer amounts to a repudiatory breach of the contract of employment an employee could be entitled to regard herself as having been dismissed. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332it was held by the Employment Appeals Tribunal that, to meet this test,

• an employer must be “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”

Alternatively, a line of authorities has established a reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test to substantiate a complaint of unfair dismissal. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer.

Similarly, a line of authorities has established that an employee who seeks to rely upon the Act must demonstrate that she also behaved reasonably in concluding that she is entitled to terminate her employment. In particular, the authorities make clear that an employee must seek to utilise the available grievance procedures in the employment before terminating her employment or else demonstrate why such a course of action would not have been reasonable or practicable.

In Beatty v Bayside Supermarkets UD 142/1987for example, the Employment Appeals Tribunal held:-

• The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.  However, I note in this case no grievance procedure existed.

The Complainant has, in his submission and evidence, set out a narrative describing being micromanaged, not being paid commission and not having a written contract of employment. He resigned verbally and then followed up with a text. The submission of the Complainant refers to events between the last few years of his employment but mainly the last year. Elsewhere in this Decision I have decided that the Complainant did not get a written contract of employment and there was no formal grievance process in place. Also I have decided that the Complainant had no written legal right to commission but given his role the practical background would say some form of bonus payment was paid in some shape or form. There is no doubt from the evidence that the operating circumstances changed in the Company and  the changes were not to the Complainants liking. However, none of the changes were illegal or vastly unreasonable and were part of the Owners prerogative to run the business. The managing of the Complainants time more directly was an issue with the Complainant. While much of the dispute centred around commission the history was very varied on this issue and no set pattern or precedent could be said to have been established. The disagreement centred on whether it was due at all, how it was to be calculated and what was to be included. In other words all elements of possible disagreement existed on the issue. However, as outlined above the Complainant had no contractual right to commission so a breach of contract cannot form the basis for a constructive dismissal claim and no other breach of contract was put forward as an issue. Certainly the operating methods changed in the company but the Complainant, while pointing out the changes, he did not really convince the Adjudicator of any totally unreasonable action to justify leaving his job. I can see how a clash of styles possibly developed between the Complainant and Mrs Dalton but these did not justify a resignation. Overall, while I have some understanding for the Complainants position, I do not deem that the actions of the Respondent were so unreasonable or sufficient to justify his claim for a constructive dismissal and I find his complaint for unfair dismissal is not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act:

Claim under the Terms of Employment (Information)  Act 1994.  ( CA-00072088-002)   I find the complaint well founded and award the Complainant 4,231 Euros.

Claim under the Payment of Wages Act 1991 (CA-00072088-003) I find the complaint not well founded.

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-00072088-001). I find the Complainant was not unfairly dismissed.

Unfair Dismissal