Case Number: ADJ-00000020. Workplace Relations Commission

• Docket Number: ADJ-00000020
• Date: 02 June 2016
• Court: Workplace Relations Commission
• Parties: A Complainant v A Technology Company

ADJUDICATION OFFICER DECISION Adjudication Decision Reference: ADJ-00000020 Complaint for Resolution:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00000023-001	02/10/2015

Date of Adjudication Hearing: 07/01/2016 and 08/03/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing: This was a two day hearing over 7 January, 2016 and 8 March, 2016.

By	Complainant	Respondent
Parties	A Complainant	A Technology Company

Pre-amble: This case was first set for hearing on 7 January, 2016. On that date, the complainant and his representatives were the sole attendees. The hearing progressed one hour after the agreed time to facilitate the respondent late entry. However, the respondent contacted me mid hearing to confirm that they had not been on notice of the hearing.

The WRC received submissions from the respondent seeking an accommodation for their attendance, given their previously submitted lengthy submission on the defence of the case. This was agreed to in the context of a resumed hearing on March 8, 2016. All parties were in attendance on that date.

Complainant’s Submission and Presentation:

The complainant commenced work as a Development Manager in February, 2010 at the respondent business. He worked on a contracting basis up until April 1, 2013 when he became a direct employee. His work involved building up a customer base in addition to support and maintenance of this group. His salary was 64,000 euro per annum. The complainant described a very unsettled time at the company as it was involved in a series of acquisitions prior to his departure.

On 31 March, 2015, @ 18.30hrs, the complainant received an email from the Managing Director of the company, which he considered offensive. The email sought to comment on the Managing Directors’ perception that he had missed an important meeting with a client. In addition, it raised an objection to signing off some expenses and the prospect of a forthcoming appraisal .He responded to the email in stark terms on April 1 @ 12.04, taking issue with the entire contents of the earlier email. The complainant contended that he was being unfairly treated at the company, by being denied his bonus, insufficient recognition for his work contribution, and lack of clarity surrounding his performance appraisal. He concluded the email by inserting the following:

“It is clear to me by your actions and comments that you no longer see me as part of the team. If so, prepare an honourable exit package for me “

The company agreed to explore an exit package on April 3^rd. The complainant was clear that things weren’t working out for him at work and he engaged in the process of preparation for his departure, knowing that the terms of the offer were being worked on between the US Human Resource Department and the company in Ireland. He had been working long hours of 50 hr weeks and the company had been subjected to a number of acquisitions which caused him to feel uncertain. In addition, he had not been given his bonus award, which was long overdue .There was no employment contract and there was a clear void in human resource function at the company.

The complainant asked for details of his severance package on three occasions and didn’t get a response. He was told by the company to prepare his account base of customers for handover. He took issue with the respondent’s submission that there had been a series of meetings between the respondent and the complainant to prepare forhis departure. He said there were no meetings. On the 8^th April, the complainant submitted a handover document to the Managing Director, while at the same time requesting sight of “letter of offer for my exit”. Nothing followed.

On 14^th April, he received a series of documents from Mr T.H, the Financial Controller for the first time. These constituted

1 Copies of consultation documents dated 7^th April.

2 RP 50 dated 14 April.

3 Letter outlining the terms of the redundancy package. The Terms of the Redundancy were:

(1) Statutory Redundancy of 3,095 euro

(2) Payment in lieu of notice 5,333 euros

(3) Ex gratia Payment 10,333 euro

(4.) 17 days of annual leave untaken.

4 Post Contractual Restrictive Covenant

He had received a text from MN to confirm that the papers were ready for signing and he met with T.H, Financial Controller in the Boardroom in the early afternoon and was informed that in order to get his redundancy, he was obliged to sign the documents. He signed the documents and left the building. Funds were transferred the next day and he did not return to the workplace. The complainant made a copy of the documents received. The complainant was clear that he was obligated to sign all documents; otherwise his cheque would be retained by the company. He did not receive legal advice and MN was the sole person he dealt with in the company in preparation for his departure

Afterwards, he considered appealing the decision as provided for in the April 14 letter, but decided against it as the Appeals Manager was viewed by the complainant as being too close to the M.D. The complainant then initiated a complaint regarding the behaviour of the M.D to Mr MJ in the United States. This was resolved via conference call on May 1^st, where agreement was reached on the complainant’s retention of some company items and a repayment plan for outstanding expenses and fines.

The complainant contended that he was a top performer, who brought an impressive portfolio of business to the respondents company. He fully accepted that he had initiated discussions on a Voluntary severance package but on reflection found that there were serious flaws with his treatment by the respondent and the quantum of his exit package. He alleged that there was no selection process for redundancy, which was in sharp contrast to other redundancies which had occurred at the respondents company, inclusive of the M.Ds brother, where everyone knew in advance that he was going.

He contended that he should have been permitted to have independent legal advice and that the speed attached to his departure was onerous and one of undue haste. That the date of 31 March on the RP 50 predated the process. He argued that the dismissal was cloaked in redundancy, yet the redundancy was not real and he was in essence “managed out “. He argued that this constituted an unfair dismissal. There was no grievance procedure open to him. He told the initial hearing that he had no earnings from April 30 2015 to the date of the hearing of January 7^th 2016. He had been involved in a Bar project which had yet to yield a dividend. During the second hearing, he confirmed that he had earned 15-16, 000 euro to date and was expecting the additional sum of 25,000 euro if plans for the refurbished project came off. The complainant made a subsequent declaration on April 1.2016 to the respondent solicitors that he had earned the sum of 37,519 euros from April 1 2015 to 31 March 2016.

Case relied on in support of the case:

JVC Europe Ltd v Jerome Panisi [2011] IEHC 299 ...