Complainant

Respondent

Parties

Wesley  Sinclair

South Dublin County Council

Representatives

Self-Represented

Mr Keith Irvine of Local Government Management Agency (LGMA)

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-00068862-001

27/01/2025

The issue in contention is a Constructive Dismissal claim by the Complainant, a Clerical Officer, against a Dublin Local Authority. The employment with the Local Authority concerned began on the 1st June 2021 and ended on the 20th September 2024. However, the Complainant has had other previous Public Service employments going back some 18 years.

The rate of pay was the Local Authority Clerical Officer scale for a 37.5-hour week.

The Complainant was self-represented and submitted a significant volume of copy e mail traffic and written statements.

In essence his case was that he had moved to the Council as a Grade 111 for a more work friendly positon- he had been on shift work previously. He had been assigned to the Housing Section.  He had not had a good relationship with the Supervisor in the Section. After some three months he had applied for a temporary job in the Environmental Services Stormwater Project. This was 50% funded by the EU. He had been successful and worked in the job at a Grade IV level until the Spring of 2024 when the EU funding was scheduled to end. He had been very peremptorily, in May 2024, told he was transferring back to Housing at Grade 111 level and under the control of the same Superiors that he had serious issues with in his initial three months. He had appealed to various superiors to remain in the Environmental Section but to no avail. He was told it was the right of the Management to transfer him as they pleased, irrespective of his views. It was a “throwback” dictatorial attitude in 2024.

Eventually (31st July 2024) he had been advised to lodge a Formal Grievance but to transfer to Housing “Under protest” while the Grievance was being processed. At this stage he was under Medical care for Work related Stress and was off work.  He felt that he had been treated very badly by the Council Managers. The effective direction to work under Protest was too much for his mental and general well-being. Resignation was his only and most regrettable option. He had resigned on the 23rd August 2024. Subsequently the Council had asked him to reconsider and offered two tentative other positions outside of Housing. After careful consideration he had declined and confirmed his resignation on the 4th September 2024.

In summary his position was that he had not been treated with any due employee care or welfare and resignation was his only option.

The Council was represented by Mr Irvine of the LGMA with a number of Managers as support witnesses. A substantial Written Submission was presented.

In opening, Mr Irvine pointed out that this was a Constructive Dismissal case, and all normal Employment Law procedures would have to be followed – specifically the Legal “tests” that are generally applied. These are, firstly, Fundamental Breach of Employment Contract, Secondly, Unreasonable Behaviours by either party and Thirdly, use of Internal Employment Procedures prior to a Resignation.

In Mr Irvine’s view, for the Respondent, the Complainant failed to satisfactorily satisfy any of these tests such as to sustain a complaint for Constructive Dismissal.

The facts were largely as stated by the Complainant. He had commenced with the Council in July 2021 as a Grade 111 and had gone, after open competition to a temporary placement as a Grade IV to the EU StormWater project in October 2021.

EU funding came to an end in 2024. He was advised that he was transferring back to Housing as a Grade 111 in May 2024. The Complainant queried why he could not remain in Environmental Services but was advised that there were no suitable vacancies at that time.

The Complainant went on Work related Stress sick leave on the 24th June 2024. He was seen by Medmark, Council Occ Health Advisors on the 12th July and deemed unfit to work but capable of engaging with management on the disputed work issues in contention.

A meeting with HR Management took place on the 31st July where the Complainant was advised to lodge a Formal Grievance and work “Under Protest” while it was being processed.  This was submitted on the 8th August 2024.

He was seen again by Medmark on the 8th August and deemed fit to return to work on the 26th August 2024. The Council advised the Complainant that he would be returning to his previous Substantive Post in Housing on the 26th August.

After his resignation on the 23rd August the Council contacted him again to request that he reconsider his resignation and invited him to consider two alternative options in Housing Maintenance or Housing Allocations. The Complainant declined and confirmed his resignation.

In summary the Respondent position was that there were absolutely no grounds to sustain a Constructive Dismissal claim leading up to the Resignation on the 23rd August. This was further reinforced when the offer of two alternative opportunities had been made on the 26th August 2024.

In addition, the Council questioned if the Complainant hade made any realistic efforts at Mitigation of his losses post the Resignation. The question of the Complainant’s very early transfer to Irish Water/Uisce Eireann was queried. The Complainant in cross examination admitted that he had been in active contact with Uisce Eireann regarding a job offer since early August.

3:1        The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“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 other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, all Legal precedents aside the focus has to be on the actual evidence in a particular case. This will be examined below but using the “Tests” referred to above as a Template.

The Tests are Breach of Contract, Unreasonable Behaviours and Use/Non Use of Procedures.

3:2       Consideration of the Evidence presented.

3:2:1          Breach of the Employment Contract.

In a Constructive Dismissal case a “breach” of the employment contract has to be fundamental going to the “Root of the contract”. An example would be a refusal to pay wages to an employee or asking the employee to carry out duties completely at variance with his contract. An example is often quoted of asking a Senior Accountant to “Sweep the Yard” with a dust brush.

Nothing of this nature took place here. The Wages/ Salary/Sick pay were paid, and all terms and conditions of a Council employee were observed.

As a Test for Constructive Dismissal, it is not in the Complainant’s favour.

3:2:2       Unreasonable Behaviour by either side.

The Legal precedents here are that “Unreasonable Behaviours” has to be exactly that “Unreasonable” to an appalling degree – “egregious” is often used to describe them.

Witness evidence in this case largely focused on the exchanges in the Summer of 2024 between the Council Managers and the Complainant. He clearly did not like a return to the Housing Section where he had been previously. It was alleged by the Complainant that the Superior there had effectively bullied him. The Council view was that this had never been raised as an issue and, in any event, he had only been there for three months at most.

The evidence was that the Complainant had never actually gone back to a Grade 111 post by taking sick leave on the 24th June and remaining on sick leave until his resignation.

Evidence of “egregious” appalling bad behaviour by the Employer was not there. There was considerable back and forth by email and the meeting of the 31st July 2025. This was normal HR/Employee interaction.

The “Working Under Protest” scenario would be common in Local Authority Service. It could not be described, by an outside observer, as an “Unreasonable” imposition on the Complainant. The offer to the Complainant to reconsider his resignation and look at two other opportunities was most certainly not unreasonable on the employer side.

In summary the “Unreasonable Behaviour” Test does not fall in favour of the Complainant.

3:2:3       Use of Procedures

The Grievance was lodged on the 8th August 2024. The Complainant resigned on the 23rd August before any consideration was possible. As a Constructive Dismissal Test it is not in the Complainant’s favour.

3:3         Summary Adjudication conclusion

The Standard Tests as set out above do not favour the Complainant.

No case for Constructive Dismissal has been satisfactorily made out.

Constructive Dismissal,