what advice can I give? Constructive dissmissal

shafts14

I was given a case study for a project in college. I was asked to give an ex-employee advice after they left the company. they think they have grounds for a constructive dissmissal case. I'll post the case below and any advice would be greatly appreciated.
The Complainant’s name is John Murray and the Respondent is Murphy’s Garage/Grealy Motors.

The date on which the Complainant commenced employment with the Respondent is a matter of dispute between the parties. The Complainant submits that he commenced employment in 2001. The Respondent submits that he commenced employment in 2004. However nothing turns on this point.

The Respondent is a motor dealership. The Complainant was employed as a salesman.

In late 2017 the Respondent was experiencing trading difficulties and the then owners sold their shareholding to new owners who assumed control of the company. The new owners are a well-known motor dealer that trades under the name of Grealy Motors.

The Complainant’s case is that following the change of ownership his treatment at their hands left him with no choice but to terminate his employment.

The Respondent denies the charges and submits that no dismissal took place and that the Complainant voluntarily resigned his position with the Company.

The Complainant states that he had worked as a salesman with the Respondent since 2001. He said that he enjoyed his time with the Company and was very successful in his position. He said that he was the top performing salesman in the company. He said that in December 2017 he was told by the previous owners that they were in negotiations to sell the business. In late December he was told by his manager that the Company had been sold and that the new owners had taken over the Company.

He said that the garage normally closed over the Christmas period and the staff were required to take holidays during that period. However this year he was told that the garage would open and he was required to work in the period between Christmas and the New Year. He said that he told the Company that he had holiday arrangements made and this would present difficulties for him. He said that he was told that he should not get off on the wrong foot and that he was required to work over the period. He said that he worked on the 28thDecember at considerable inconvenience to himself and his family.

He said that his contract of employment provided that he work Monday – Friday from 9.00 a.m. to 18.00 p.m. and every second Saturday. He said that following the change of ownership his Management attempted to change his starting time to 8.00 without his agreement. He said that he did not agree to this and continued working his contracted hours.

He said that he tried to engage with the new Management on the matter but they simply told him in very aggressive and hostile terms that his hours had changed and he could take it or leave it.

He said that under his contract of employment he was entitled to commission of 20% on the profit earned on all sales. He said that commission accounted for a very significant proportion of his total earnings. He noted that it exceeded his basic wages and accordingly was extremely important to him. He said that he was told by the new management that the commission rate would be reduced from 20% to 10% with effect from 1 April 2018. He said that he disputed this but was told at a series of meetings that it was not up for discussion and that it would be applied with or without his agreement. He said that these meetings were hostile and aggressive, were called at short notice, were not properly minuted, his views were discounted and Management’s treatment of him was dismissive.

He said that these changes were introduced without his agreement and his earnings unilaterally reduced.

He said that his desk was relocated within the garage and that this had the effect and intention of humiliating him. He said that he was effectively under permanent supervision. He also said that garage management started to follow him around and to constantly hover over him which he found very destabilising.

He said that he found it hard to cope with this treatment and his sick leave increased as a result.

He said that in May he was called to a meeting and instructed to hand over his phone. He said that his phone contained contact information essential for the conduct of his work. He asked to access this and was not allowed to do so. It also contained personal details and video and photographic footage of his family that he asked to access and was refused.

He said that this became acute in May 2018 when his father died. He said that he was at work and when he went to the hospital he was told his father had passed away and that the hospital had been trying to contact him on his phone. However he no longer had access to it and he found this event very traumatic.

He said that his phone had personal photographs of his father with his grandchildren that he was seeking to recover but he has not been allowed to do so. He said that he found this treatment unacceptable.

He said that he was offered an alternative phone that did not contain the data he required, was an inferior hand set and had usage restrictions that were not part of the package he had enjoyed as part of his working arrangements. He said that he did not accept that phone.

He said that he became ill in July 2018 that required him to take extended leave. He said that the main nature of that illness was stress related arising out of the manner in which he was being treated by the new owners of the business. He said that while out on sick leave the Respondent required him to return the Company car that was part of his normal employment package and on which he paid benefit in kind.

He said that taken together these behaviours drove him into bad health, deprived him of an acceptable working environment, unilaterally diminished his terms and conditions of employment and fundamentally breached the working relationship necessary between employer and employee. He said that it was not possible to go on working in the Company as he had been constructively dismissed.

The Respondent submits that the Company it bought was a “financial basket case” and required remedial action to protect the business and to maintain employment. It submits that it operates an extensive business in the motor trade and did no more than bring the terms and conditions of employment in this Company into line with those generally applying in the business. It submits that it consulted widely with all staff including the Complainant. It submits that the Complainant’s contract of employment required him to be “flexible” and that it relied on that provision to introduce the revised terms and conditions necessary to protect the business.

It submits that the Complainant was absent for 62% of the total number of working days in 2018.

It submits that the Complainant did not own the Company car and that it had a legal right to have it returned to the Garage. It submits that it wrote to him seeking to have it returned on a number of occasions and when he failed to do so it recovered the car.

It submits that the Complainant was in possession of a Company mobile phone and that it had an entitlement to recover the phone. It submits that it offered him an alternative phone but that he declined to accept it.

It submits that they commiserated with the Complainant when his father died and allowed him five days leave rather than the three that would normally be allowed.

It submits that the Complainant resigned his position and that no dismissal took place.

Seve OB

It will be interesting to see how many people's homework has the same answer after this

setanta1000

Hi Op,

What are your own thoughts on the case as presented?

What applicable laws or guidance do you think apply in this situation?

Are there any special rules that apply to certain careers or workers that might apply in this case?

What path for recourse do you think would be available to someone in this situation?

What, if any, legal precedent have you found for a situation such as this?

As Seve OB implies - if we are doing your homework you might as well show a bit of effort!!

shafts14

At first glance I thought he had a case, however, after thinking about it and a couple more reads none of the events seem that strange. By the sounds of things life was stressful for him as it was, although not helped by events in work.
The main thing that made me think he had a case was when the employers took his phone off him. Maybe this would break GDPR guidelines that came into effect in may 2018? That being said if it was a work phone he probably shouldn't be keeping private pictures and information on it in the first place.
My recommendation would be to bring the case to the work place relations commission. I still think that the employers would win the case.
I just feel like there is some detail within that I am missing that someone else might see.

porsche boy

From a history of working in the motor industry my opinion is that you require a thick skin. Terms & conditions of employment are nowhere near 'normal' or even legal in some cases but as the nature of business is cyclical and there is an natural ebb and flow of sales it would be reasonable that flexibility is required.
Phone & car are perks of the job and as such I suppose they can be withdrawn with minimal notice etc.
The main fact going with the new company is that to make the company profitable & retain people in employment a complete rethink was requires regarding opening hours, bonus pay, conditions etc. This they did and will claim it prevented X amount of redundancies.

There is a completely different way of looking at this, the new company want people that have the right ethos and Mr. Salesman was going against the grain so let's pressure him out, this is the most common tactic used in this industry and nothing will change until we have a union to represent us properly.

setanta1000

shafts14 wrote: »

At first glance I thought he had a case, however, after thinking about it and a couple more reads none of the events seem that strange. By the sounds of things life was stressful for him as it was, although not helped by events in work.
The main thing that made me think he had a case was when the employers took his phone off him. Maybe this would break GDPR guidelines that came into effect in may 2018? That being said if it was a work phone he probably shouldn't be keeping private pictures and information on it in the first place.
My recommendation would be to bring the case to the work place relations commission. I still think that the employers would win the case.
I just feel like there is some detail within that I am missing that someone else might see.

Ok - that's a start but, in my opinion (and remember I am just some random punter on the internet with no qualification or specific experience in employee law!) you need to be looking at this with regard to the applicable laws around changing of terms of employment (eg I don't think being flexible allows a new employer to unilaterally chance T&C's without full and proper consultation) but also around employers responsibilities for employees on sick leave, how this is managed and general employment law.

I presume a full answer to this project will require you to identify the relevant laws that apply in this case, the possible paths to recourse and any time limits to such recourse - this info is easily found online I believe.

_Brian

The most basic of litmus tests for CD.

Has the employee a detailed paper trail demonstrating clearly exhausted every single step of the grievance and appeals processs within the company before leaving.

This is very central to any case, otherwise employees would walk out on a whim and claim CD.

Even if no written policies are available then it would still be important that the EE can produce documentation proving they made significant efforts to resolve issues before leaving.

Proof, hard evidence is key here not hearsay of conversations.

shafts14

Another possible angle:
John will win the case because the employer was in breach of contract.
They gave him less pay and commission without negotiation, the meetings were in short notice and without minutes recorded.
They didn’t write down anything which shows no agreement was made.
They need to communicate to the employee any changes to be made and give reasons behind it.

CheweeB

In the first instance you should consider referring to the Transfer of Undertakings legislation. Take that as your starting point.

The main thing in law is to apply the correct legislation- and the strongest argument. The main reason why a lot of Employment Law cases fail is not because people don't have any cases but the wrong legislation has been applied.

STB.

CheweeB wrote: »

The main reason why a lot of Employment Law cases fail is not because people don't have any cases but the wrong legislation has been applied.

The main reason that CD cases fail is because the onus is on the employee to prove their case that they had no other option due to the actions/inaction of an unreasonable employer. The burden of proof is the kicker.


Constructive dismissal in Ireland is covered by the Unfair Dismissals Act, 1977 in section 1(b) as it provides that a dismissal is, among other definitions,

“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."

@ OP Tests for CD are Contract Test and Reasonableness Test.

Read Supreme Court in 2009, Berber (respondent) v Dunnes Stores Limited (appellant), [2009] 20 E.L.R. 61.(it covers Breach of Contract-Implied Term of Trust and Confidence)

Snotty

You do know colleges actually have software that search for the project/homework wording they give out.