Complainant

Respondent

Parties

Yvonne  Walsh

Ability Property Services As Above

Representatives

  Self Represented

Shane MacSweeney & Company Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00068975-001

31/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00068975-002

31/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00068975-003

31/01/2025

The Complainant was employed as Head of Accounts from July 2023 to October 31 2024 and claimed (a) she was constructively dismissed, (b) that she was not given her legally required breaks and (c) that her terms of employment were changed without her agreement.

The Complainant started employment with Ability Property Services in July 2023.

The Complainant described her time with the Respondent as  "15 months of absolute madness”.

The Respondent changed her title from Accounts Receivable to Head of Accounts.

The Complainant set out a number of background issues with the processing of wages and issues with the previous Operations Manager allegedly telling lies about her, allegations of the Owner being aggressive towards her, issues with the process for approving wages, being blamed for issues, issues with the previous Operations Manager/payment approval and that she required medical treatment for stress. She alleged the culture was beginning to become clear that everyone was pitted against one another, no trust, no teamwork and certainly no clear communication.  The Complainant highlighted a processing issue at Christmas.

The Complainant stated that meetings were never held to discuss topics, instead it would be spoken about what happened behind everybody’s back. It was a blame game.  She alleged that's the way the Owner operates and he causes chaos amongst staff.  She alleged the Owner shouted at her on occasion, that there were issues processing a pay increase for an employee, she alleged she would be told one thing by one Manager and something different from another.  She alleged there was no communication in the company, no procedures in place and rules made up as they go along.  

The Complainant had a 3 month review In January 2024 which went on for 3 hours and the Complainant issued an email to the senior managers setting out her position on issues but neither of the Managers thought it important enough, she felt, to have a meeting to discuss her concerns and what was said in that review. The Complainant found it very hard going to work for weeks after that meeting, and she had lost all trust in Management and knew there was no loyalty to anyone and they were all being blamed in the wrong.  

In February 2024 while out for a walk at lunchtime with other employees, the Complainant fell and went to the doctor the following day for a check-up. Because she had fallen before and suffered from Vertigo, she was sent to A&E. and diagnosed with Vertigo.  The Doctor asked the Complainant if she was stressed.  She said maybe a little bit but nothing she couldn't handle. She was given a course of tablets and told to take a few days off.  The Complainant did the payroll from home and got no thanks for it.

In March 2024 the Operations Manager left Ability and James Granahan was hired as his replacement.  All staff were led to believe that this would be a big turning point for Ability. They thought he was going to grow the business, put procedures and structures in place. It was one of the reasons she stayed. She stated she thought perhaps things would improve. She alleged that James saw the Owner shout and roar and eventually started doing the same thing.

In June 2024, the Complainant had an issue with a request for an advance and working up time and felt she was being treated differently to other staff. She alleged the Owner makes up the rules depending on his mood at that time and you would ask him a serious question and he would give you a joking-like response, so you were never sure if he was serious or joking.  She also highlighted an issue with locking the door as bizarre behaviour.

The Complainant outlined an issue with working from home when she had Covid and even though she informed the Respondent she had Covid by email she was questioned the next day as to where she was and alleged the Owner did not read his emails.  The Complainant stated she decided that this as the time to go as she felt she would be next to be pushed out.

The Complainants stated they started to have accounts meetings and that James’s aggressive manner was known throughout the company; other staff had witnessed it also, the clenching of the fists and the way he would look at you. This was an attempt of his to intimidate, bully and create fear in the office so that we would not question him.  

The Complainant outlined issues with internal operations issues and management and holidays the Complainant had taken which was communicated by email. The Complainant stated she would sometimes have to send the Owner a text telling him she had sent him an email.

The Complainant set out a further list of internal difficulties she was experiencing which affected her working environment.  These included an Accounts & Operations To Do List, her working from home, a particular client and monies due and who should take the calls from the supplier and creditor issues.

The Complainant stated it was clear to her that she was being singled out, managed out and my work environment was being deliberately made difficult so that she would leave.

The Complainant stated that when she interviewed for her role, the Owner said she could work flexi time, that he didn't care once the work was done.  She thought this was great, that she could work around traffic times and it would give flexibility for appointments etc.  But she stated this wasn't the case.  

The Complainant alleged there was an issue with her start time and the amount of  hours she worked in a week.  She stated she  arrived for work at 8.30am, and wouldn't finish until 5.30pm.  The Owner was constantly bringing this up and would often make comments in front of other staff.  She mentioned this in this meeting, and alleged the Owner pushed back his chair and sat up against the wall with his arms crossed, he said "I'm glad you brought this up, “you swander in here at half 8 and everybody else is in since 8".  The Complainant said she turned to the Owner and said "from now on, I will not be working 45 hours, I will swander in here at half 8, I will take my lunch break and I will swander out at 5pm".  

The Complainant stated that when she started in Ability, she noticed staff did not take a morning break or lunch break and they would eat at their desks and you were made to feel like you weren’t entitled to take one, or it was too busy.  The Complainant stated she soon fell into this routine and would eat at her desk also.  She stated for a time she and some others started going upstairs and eating with the Operations Dept. and wouldn’t spend any more than half an hour on the break. 

Between October and June the Complainant had issues with her blood pressure. In January, it was down to normal.  While she was on sick leave, she went for an interview and got the job. She sent the Owner an email with her resignation.  He replied with "ok and will talk to you next week".  The Complainant stated the Owner never spoke to the Complainant for the full month she worked her resignation.

The Complainant left Ability on 31st October and 3 other office staff left in the next 3 months.   

The Complainant stated all of the above is only a fraction of all that happened and it was every day, a constant battle.  Going into work in flight or fight mode.  Not knowing what you were going to be faced with.  There was always somebody upset, somebody being blamed in the wrong and lies being told.  

The Complainant stated the best way she could  describe working in Ability was like being in an abusive relationship.  Every morning you waited to see what mood the Owner was in and that is how your day would go.  One minute you are the best thing, the next you are being accused of something he made up in his head.  She alleged that she spent most of her time in Ability in a state of hyper awareness and stress.  In the end, she stated Aidan and James made her job impossible to do and her health suffered because of them.            

The Respondent denied the claims and contend that the Complainant voluntarily resigned her employment, that the circumstances of her employment did not justify her in constructively dismissing herself and that she failed to avail of (let alone exhaust) the Respondent’s dispute resolution procedures.  It denies that it altered her terms of employment and claimed that no valid claim lies under the 1997 Act. 

The Respondent operates a nationwide housing maintenance business, supplying services exclusively to approved housing bodies. Its staff numbers fluctuate, but it typically (and currently) has 35 staff, with 23 involved in on-site maintenance work (mainly comprising trades people) and the balance employed in the office, undertaking a variety of administrative and clerical work.  Broadly speaking, it is broken down into management (4 staff), accounts (currently 2 staff), helpdesk (7 staff), quantity surveyor (1), along with the founder and managing director, Aidan Diskin.  Notwithstanding the rather scathing criticism advanced by the Complainant with respect to the Company in general and Mr. Diskin in particular, the Company holds an ISO 9001 accreditation.

The Complainant commenced employment with APS on 25th July 2023 in the role of Head of Accounts Receivable. A Contract of Employment issued to the Complainant. and a copy was supplied. Her core duties are described in her contract and day to day her duties primarily involve her in managing cash-flow, processing payroll, undertaking bank reconciliations, managing creditors, chasing debtors etc.  Whilst she did not directly undertake accounts receivable duties, she did oversee a colleague who had responsibility for same.

The Complainant had been awarded two pay increases during her relatively short (15 month) tenure with the Company - namely, one in November 2023 of €2,000 and one in April 2024 of €2,500,. An additional increase of €2,500 was mooted at a review meeting in mid-September 2024. She was regarded as competent at her job, albeit quite demanding and ultimately, difficult to please. 

Unfair Dismissal Claim

In the WRC Complaint form the Complainant claims that she “had to leave [her] job due to the conduct of her employer or others at work” and identifies the following as the reasons for same:

“Bullying, harassment, GDPR breach, aggressive behaviour, lies, blame, false accusations, no leadership, did not honour [sic.] contract and changing rules.”

By way of elaboration, she attached to the Complaint Form a copy of a letter of grievance sent to Mr. Diskin on 7th January 2025 (some 3 months after she tendered her resignation – on 8th October 2025).   It ought to be borne in mind that the email of 7th January 2025, represented the first occasion on which the Complainant highlighted her apparent concerns with respect to her employment, notwithstanding the fact that the Company has a detailed Grievance Procedure.

 Substantive Response – the Complainant’s Allegations         

The Respondent is anxious to avoid a tit-for-tat allegation and response process.  Nonetheless, it is important to correct the record, given that Mr. Diskin was not afforded an opportunity, prior to now, to respond to the Complainant’s grievances with respect to her employment, having been denied that opportunity, by reason of the Complainant’s decision to resign her employment, without raising her apparent issues.

As a general observation, many (or most) of the Complainant’s concerns relate to what she perceived as deficiencies in Mr. Diskin’s management style.  In short, she appears to hold a dim view of his capacity to operate the business but for the most part, the issues raised are not of the character that one normally encounters in a constructive dismissal type claim.

By reference to the Complainant’s email of 7th January 2025, the Respondent would comment as follows: 

The Complainant incorrectly asserts that her contract provided that she would work 2 days from home.  The Adjudication Officer is referred to the said document, which stipulates: 

                    “Place of Work:

The Company Office is currently located at Unit 20 , Royal Rock Buildings, Ballybane, Galway.  Your typical place of work will be at the address above, but this is variable depending on the requirements of your job.”  

There is a reference on the first page, after the probation clause to home work, which reads as follows: 

“You role will be an office-based role and  your place of work will be based primarily out of our Galway office, except for when working from home as agreed .”

 Respectfully, on any ordinary interpretation of the contract, the clear expectation is that the Complainant will mainly work from the office – albeit there is recognition that a working from home arrangement may be agreed.

It is acknowledged that the contract included provision for a review after 3 months, when a salary increase and the possibility of moving to a hybrid role would be considered – with the potential for home work for a maximum of 2 days per week. A review does not constitute a commitment either to change – it’s merely an agreement to examine something.  Whilst the Company was, at the time the employment commenced, open to considering the possibility of a hybrid arrangement, it was not sufficiently confident that the arrangement would work efficiently or productively and a regular work from home arrangement was never agreed. 

The Complainant did work from home on an ad hoc basis from time to time. 

The Complainant was awarded a salary increase in November 2023 of €2,000.  The communication around the issue could certainly have been better and there was confusion as to who authorised it, given that the Complainant put it through herself.  The Complainant took great offence at being queried about it.  

The Complainant did participate in a review meeting with her then manager, Declan O’Gorman in January 2024, having undertaken 5 months of employment at that point.  It was a long and it seems contentious meeting, with the Complainant taking offence at being questioned by Mr. O’Gorman about her salary increase.

The issues about which the Complainant is so animated were, it is submitted, relatively standard day to day operational type issues. 

In the email sent by the Complainant to Mr. Diskin on 29th January 2024, she explicitly notes that Mr. O’Gorman expressed that he was very happy with her work and that the accounts were in a great position.  He stated that she had done a great job in hiring and training her colleagues.  He stated that she was on the same level as the other managers – albeit she bemoans the fact that this was not reflected in her salary.

She bemoans the fact that her promotion from Head of Accounts Receivable to Head of Accounts was largely titular and she felt that she deserved a greater pay increase in recognition of her additional assumed duties. 

Whilst she describes the review as being “interrogated for 3 hours” it is clear from the content of the email that most of the engagement was positive/ constructive and it would appear that her primary concerns was that she was not securing a greater pay increase.

It will be noted that she made no reference to the issue of working from home, despite the length of the review meeting. Mr. Diskin will say that he did discuss the matter with the Complainant after she emailed him and did not perceive that there was an persisting or ongoing issue relating to same. 

The Complainant states that she was told she could “work flexi time once the hours were done” which she claims was not honoured.  Her claims are not correct.   Again, by reference to the Contract of Employment, it provides that “[her] hours shall be generally 8:00am – 5:00pm Monday to Friday”. 

 The normal business hours of the Company are as noted above.  Mr. Diskin and the Complainant’s colleagues were generally on site at 8:00.  Mr. Diskin will say that he did not agree to vary the Complainant’s hours, but the Complainant nonetheless frequently presented for work later than 8:00 (as she herself acknowledges) – a practice which the Company ultimately (and grudgingly) tolerated, albeit it was never agreed. 

The Complainant’s claim that office staff work 45 hours per week is inaccurate.  The office staff work 8:00am to 5:00pm, 5 days per week, but with an hour for lunch each day.  That equates to 40 hours worked, per week. 

The Complainant is correct that there is no formal mid-morning break, however employees are free to (and do in fact) make coffee/ tea and to take informal breaks during the morning.  However, she is entirely wrong in claiming that the staff do not take lunch breaks and/or that she was only paid for 40, rather than 45 hours.    

In the first instance, the Complainant is salaried and is not paid on a per hour basis, albeit her normal working week was 40 hours and there was no expectation that she would regularly work in excess of that – and she did not in fact do so.

It is correct that some staff do take their break at their desk, but they are not expected to (and do not in fact) work during their lunch break. 

Notably, the Company has a fully equipped kitchen and canteen, which was renovated in May 2024.  The staff take lunch on a staggered basis between 12:20 and 14:30 and most do so in the canteen and take a full hour.  The location of the office (in an older style industrial area) has limited dining options and is not very aesthetically pleasing, but many staff also leave the premises and go for walks over lunchtime.   

 Notably, at page 12 of her Submission, the Complainant acknowledges that she informed Mr. Diskin that she was going to take her lunch breaks and she accepts that she (and Employee X) did so upstairs (i.e. in the canteen), albeit she claims that she only did so for half an hour (which notably would constitute compliance for the purposes of the 1997 Act).

 The Complainant is correct that there is no formal mid-morning break, however employees have the autonomy to take mid morning breaks on an ad hoc basis – and do in fact take same.

 It is denied that Mr. Diskin breached GDPR “on at least one occasion”.  It is alleged in the Submission (page 12) that he discussed the Complainant’s medical appointments with another member of staff, namely her brother in law, Brian Hanley.  As noted earlier, Mr. Hanley was the Company’s Operations Manager and it was entirely appropriate (and lawful) that he inform Mr. Hanley that he had agreed with the Complainant that she could work from home the following week, to facilitate her attendance at medical appointments.  It is expressly asserted that this is permitted processing, in line with the Data Protection Acts, 1988-2018 and the General Data Protection Regulation. 

The Complainant alleges that Mr. Diskin was “constantly introducing new rules and policies” but that he did not follow them himself.  This is a vague allegation and it is denied.  Certainly, Mr. Diskin/ the Company introduced (for the most part, minor) changes that they would improve the Company’s performance.  It is possible that from time to time, he would not adhere to every change, albeit he would not consciously do so.  Moreover, as the Company’s managing director, he would be entitled to a degree of latitude on such matters. 

The Complainant criticises Mr. Diskin for not reading his emails.  Mr. Diskin receives an incredible volume of emails and whilst he does try to monitor them, he simply cannot deal with or review every single email.  He is copied on a great many emails that he does not necessarily need to review or respond to.  Respectfully, this is an unwarranted criticism. 

The Complainant accuses Mr. Diskin of shouting at her and refusing to listen to her side of the story.   Mr. Diskin denies that this was so.  He said that the Complainant regularly agitated for changes to her salary, working hours and working pattern inter alia.  She achieved two pay increases in 15 months and ultimately left.  He accepts that he could get exasperated with her from time to time, but he was always polite/ civil.  He sometimes struggled to get his point across to the Complainant, who tended to hold quite strident / entrenched views.   

The Complainant is unhappy at the fact that Mr. Diskin required her to work up time missed (for which she was paid) before going on leave – rather than afterwards.  It is submitted that this was not unreasonable and comfortably within the scope of what he as a manager might determine.

 The Complainant is critical of Mr. Diskin for failing to be aware of the fact that she was working from home because she claimed to have contracted Covid 19.  Notably, this was in mid-2024, long after the isolation protocols associated with Covid 19 had expired.  

 The fact that her manager queried why she was working from home on 5 September 2024 is not a valid reason for her to act so exercised / offended.  It is obvious from the text of her line manager, James Granahan (her exhibit #7) that he simply asked why she was working from home for two days and he specifically stated “maybe you have discussed and agreed with Aidan, if so, that’s fine”. 

She sent him a very curt response (her exhibit #10) to which he responded that he “was not aware that you were confirmed with Covid.  If this is the case, then working from home is not an issues [sic.] as long as you feel ok to do so”. Moreover, it is worth noting that the Complainant’s absence was uncertified and it was never medically confirmed (to the Company) that she had Covid 19.

 Respectfully, the Complainant acted with unwarranted indignance.  She states at page 7 of her Submission:        “At this stage I was well and truly fed up with this nonsense.”  It is respectfully suggested that such apparent outrage was by no means warranted by the exchange of communications exhibited by her on the subject matter.

 The Complainant complains about the fact that she was asked to process payroll whilst she was on sick leave (with vertigo).  Whilst that was an acknowledged trespass on her time, the relevant PC was brought to her home by her brother in law, Mr. Hanley, as given the relatively small scale of the Company’s back office operations, the payroll (including her own wages) would not have been processed without her intervention.   

The Complainant is critical of the Company for continuing to work through a power cut.  Respectfully, that is a matter that is within the Company’s remit.

 The Complainant complains about the fact that she had to work late on the day the office broke for Christmas holidays in 2023.  The Complainant had been allowed by Mr. O’Gorman to leave early (at 3pm) that day, along with her fellow staff.  However, an issue did arise because payments to sub-contractors didn’t go through and again, Mr. Hanley called the Complainant to seek her support in effecting those transfers.  It is accepted that there was a mix-up and that it was less than ideal that the Company needed to trespass on her time that evening, to ensure the payments were authorised.  However, in small and medium sized companies (and occasionally in larger firms), such unforeseen crises will arise from time to time and there was nothing pre-mediated or calculated in what was, a genuine problem that needed to be addressed.

The Complainant claims that a colleague (Mr. O’Gorman) who left her employment in March 2024 – some 7 months before she resigned her employment) sometimes did not approve payments.  She claims she got blamed for this, but that is not accepted by Mr. Diskin. She Claims that James Granahan, who replaced Mr. O’Gorman as Operations Director in March 2024, had an aggressive attitude and (she claims) displayed aggressive body language to her.  Mr. Grahanan denies this – and the Company/ Mr. Diskin was entirely unaware of it prior to the receipt of this allegation, prior to the emails sent 3 months after the Complainant resigned her employment. In Ms Walsh’s submission she states that from March 2024, after Mr. Granahan joined the Company, things allegedly got worse, Mr. Granahan denies this and would note that there is no issue highlighted in Ms. Walsh’s statement covering that period, until mid-September 2024, when her salary increase expectations were not met, following a review.

 She complains about something that apparently happened when she was on leave – patently relying on second hand/ hearsay.  She has an issue with the fact that Mr. Granahan apparently claimed not to know how to carry out a banking task, despite the fact that she claims to have created a process to cover same.

 She claims that Mr. Diskin never liked her and is critical of him for not coming to her to tell her he had a problem with her.  Mr. Diskin’s sole concern was to ensure she performed her duties and his view was that she was a satisfactory, if demanding, employee.  She is critical of his alleged failure to interact with her after she resigned her employment.

 She, again, appears to have received hearsay to the effect that she influenced a colleague, Rafa Santos, to resign.  Ms. Santos was hired for maternity cover.  She was offered a fulltime role but secured a job with the HSE which she elected to accept.  She resigned in December 2024, some months after the Complainant.  The relevance of this to the within complaint is not understood.

 Again, respectfully, the Complainant’s apparent concerns about the fact that Employee x was not entrusted with the handover of the Complainant’s work is not germane to the within ‘constructive dismissal’ complaint. The same applies to the Complainant’s complain that the Company directed her to do a handover with Rafa Santos in lieu of Employee X. Again, this point relates to the handover of the Complainant’s work, after she had tendered her resignation and is not relevant to her constructive dismissal complaint.

 She makes a generalised complaint about endeavouring to discuss things “head-on” with Mr. Diskin, who she claims would play down matters and later act in an aggressive way. This generalised criticism is not understood.  Mr. Diskin tried to interact professionally with Ms. Walsh.  Ultimately, he was unable or unwilling to meet her demands on salary and for remote working.

  It is not accepted by Mr. Diskin that the atmosphere at work was ‘toxic’.  For the most part, the team got along well.  He accepts that there was a level of staff turnover, but this is commonplace in an industry reliant on trades people, who are notoriously difficult to recruit and retain.  He accepts that there may be room for improvement in Company morale and that there are management gaps, but for the most part, the Company’s processes are well laid out/ thought through – and it would not have been possible to attain ISO 9001 accreditation (in 2022) if the position was otherwise.

 She makes a rather gratuitous and generalised remark that Mr. Granahan has no respect for anyone.  She claims that he says that staff departures were related to Mr. Diskin’s shouting and not to his poor management.  Again, it is not possible to ascertain precisely why or how the foregoing is relevant to the claim at hand.

 There is further elaboration on the foregoing grounds set out in the Complainant’s Submission, but for the most part, the Submission contains the same or similar and minor grievances. 

Most of the grievances relate to alleged managerial ineptitude.   Little or none of the grievances describe significant inter-personal disputes of differences.  She takes grave offence when questioned as to why she is working from home, when she believes that notice has been posted somewhere or she has informed someone via email.  The reality is that an email enquiry concerning her whereabouts is not an unwarranted intrusion and she exhibits a level of intolerance that is unbecoming, insofar as fielding such requests is concerned. 

 It may be that the Complainant, having come from a significantly larger pharmaceutical company, had expectations that this smaller company would have a more structured work environment.  She has catalogued a series of largely minor issues, spanning her relatively short (15 month) tenure with the Company, but ultimately, she has not described the type of genuinely egregious behaviour that one typically encounters in a constructive dismissal complaint. 

The Respondent will say that Mr. Granahan (who had worked in a senior managerial role with Noonan Bidvest for 17 years prior to commencing employment with the Company) sought to slowly introduce procedural improvements in the Company, beginning with a regular fortnightly meeting for the accounts function, commencing in September 2024.  This was a forum to highlight and address challenges in accounts and to improve communications – something Mr. Diskin acknowledges was desirable.  They were not strictly structured. 

The first such meeting took place during week 1 of September 2024 and it identified 25 items, with tasks allocated to different personnel – e.g. closing off accounts, chasing balances, booking the Christmas party etc. 

No accusation of leaking information was made, against the Complainant or otherwise.  The telephone number of the director of a client company had been passed to a sub-contractor, who had touted for work in competition with the Company.  It was simply noted that staff needed to exercise discretion in handling private information – no more, no less.  On no account was any criticism directed at the Complainant – the issue had been raised by the client company director and it was appropriate that it be relayed to the team.

A second ‘accounts’ meeting was held in week 3 of September, which was a follow-up / review of the previous task list and was simply a strictly unremarkable meeting. In the course of this meeting, the Complainant raised two issues, namely (1) a request for a pay-rise; and (2) a request to work from home.  Mr. Granahan stated that this was not the correct forum to raise the matter, however, in the course of that discussion, the Complainant sought a pay increase of €2,500.  Mr. Diskin indicated that this was for discussion and Mr. Granahan subsequently emailed the Complainant.  The Complainant also demanded she be permitted to work from home.  Mr. Diskin stated that in order to facilitate that, he would “need a plan” to ensure that the accounts function / accounts staff were correctly managed.  She remarked “I don’t care about the other staff – I want to work from home”.  Mr. Diskin reiterated that unless they had an effective plan in place, he could not facilitate regular working from home and he put it to the Complainant that it was up to her to devise such a plan.  

The conversation ended without agreement and the Complainant went off on sick leave for a fortnight thereafter. 

 It is not in doubt that the Complainant was seeking other work at this time and she admits that she successfully interviewed for a role with a competitor of the Company, whilst on sick leave.  She returned to work on 8th October 2024 and tendered her resignation via email.  She complains about the lack of engagement between then and her finish date, but her self remarks that she “had no interest in anything he [a reference to Mr. Diskin] had got to say at that stage”. 

It is Mr. Diskin’s view that his refusal to award the Complainant a pay increase in September 2024 and to agree to her regularly working from home were the precipitating factors in her resignation.   

Substantive Response – Failure to avail of the Grievance Process

As noted earlier, the Company has an Employee Handbook, which includes detailed policies on “Anti-Bullying and Harassment” and which further includes a detailed “Grievance Procedure”. 

Copies were provided and it will be noted that the Complainant signed the copy of the he exhibited Anti-Bullying and Harassment  policy.  Moreover, the Complainant cannot claim to have been unaware of the existence of the dispute resolution processes, as she herself notes at page 16 of the WRC Complaint Form that: 

                    “Grievance/ Disciplinary procedures signed on start date”.  

Unfortunately, whilst the Complainant had normal day to day interactions with her line managers and Mr. Diskin and frequently discussed procedural, operational and personal matters (such as requests for pay rises and remote working), she failed to avail of the dispute resolution mechanisms available to her, prior to her departure.

 Ultimately, she made no mention of the reasons for her departure when tendering her resignation and only presented a long list of grievances in January 2025, long after the employment relationship had ended. 

 If she was as unhappy in the workplace as she claims to have been, then what was to be lost in permitting the Company to deal with her grievances and to ascertain whether or not same could be resolved to the satisfaction of both parties.   

Had she lodged a grievance, it would have afforded the parties an opportunity to explore a potential solution to her issues – and would at least allow Mr. Diskin and/or Mr. Granahan a fair opportunity to convey his/their (perhaps contrary) views.

The law: Constructive dismissal

 In a claim for unfair dismissal, the “burden of proof” normally rests with the employer to prove the “fairness” of the dismissal.  However, in circumstances (such as this) where the constructive dismissal is alleged, the burden of proof shifts to the Complainant.  It behoves the Complainant to prove that her dismissal was not voluntary. It is accepted that the test is broken down into: 

The Contract test; and

The Reasonableness test. 

In the contract test, the Complainant must establish a breach of contract so fundamental that it went to the root of the contract indicating that the employer no longer intended to be bound thereby[1].  It is submitted that on no account can it be stated that the Company has conducted itself in such a fashion.  There appear to have been no heated engagements as between the protagonists – with most points of contention being operational in nature.  The Complainant appears most irate when having to explain why she is absent from the office and based on the communications exhibited, she was treated sympathetically by the Company in such interactions. 

Far from mistreating the Complainant, she was accommodated significantly and facilitated with work from home arrangements on an ad hoc basis.  She received two pay increases during her tenure totaling €4,500, with a further increase of €2,500 mooted in October 2024, just prior to her resignation. 

In terms of the reasonableness test, this essentially requires the Complainant to prove that the conduct of the employer was such that it was reasonable for her to resign.  Again, it is submitted that the Respondent has demonstrated that there was no grand conspiracy against her and that its actions (which were supportive of the Complainant) can be contrasted with her rather dismissive attitude to Mr. Diskin. 

In Leeson v Glaxo Wellcome Ltd [1999] ELR 170, the claimant was private secretary to the Managing Director, who retired in 1996.  A new Managing Director was then appointed, who had a number of issues with her work, including her time-keeping.  The claimant subsequently went sick and there then followed correspondence where she alleged she had been bullied and victimised.  The claimant resigned and claimed unfair dismissal.  The tribunal allowed her claim, considering that there was an obligation on the employer to have procedures in place to resolve such problems.  However, on appeal to the Circuit Court, the appeal was allowed, and the Circuit Court considered that it was entirely appropriate that the Managing Director offer criticism of her work with a view to bringing about change.  It held that it was not reasonable for her to terminate her employment. 

Moreover, in a claim for constructive dismissal, it is considered imperative that prior to taking the terminal step of unilaterally terminating one’s employment relationship (as the Respondent admits occurred), an aggrieved employee must, at a minimum, invoke and exhaust his efforts to resolve the dispute, and prior to advancing a claim under the Act (Conway v Ulster Bank Ltd UD474/198). 

In Conway, the employee was unhappy at what she regarded as a unilaterally imposed transfer about which she had not been consulted, made for reasons she could not accept as reasonable or necessary (her impending marriage to an account holder at the branch where she worked) and which she regarded as effectively making it impossible or unacceptably difficult for her to continue working for the employer.  The EAT took the view that the right of transfer in the bank employee’s contract gave “no absolute power to transfer”. It said: 

“Any concept of absolute power is an illusion and such power as exists cannot be exercised outside the law of this land which compels the recognition of personal fundamental rights.”  

However, the EAT declined to find for the employee.  She failed both on the contract test and the reasonableness test.  It held that the employee did not act reasonably in resigning without having first substantially utilised the grievance procedure to try to remedy her complaint.  The EAT stated: “By majority the Tribunal considered that the claimant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.  An elaborate grievance procedure existed but the claimant did not use it.  It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”

  It was further stated in Murray v Rockabill Shellfish Ltd [2012] ELR 331, that “an employee must act reasonably in terminating his or her contract of employment, resignation must not be the first option taken by an employee and all other reasonable options including the grievance procedure must be explored”. [emphasis added]

 Joyce v Brothers of Charity Services [2009] ELR 328 is also instructive in the present case.  In this case, the claimant, a care assistant was accused of sexual misconduct with a care-user.  This gave rise to a situation where the employer had no option but to suspend the claimant with pay during the course of the investigation.  The investigation did not take an unreasonable length of time and the employer communicated the favourable outcome of the investigation to the claimant at the earliest possible date and invited the claimant to return to his employment.  The claimant felt it was unreasonable to return to work without safeguards to his future safety being put in place; furthermore, the claimant wanted an amendment to the findings of the investigation committee.  The tribunal was satisfied that it was not within the remit of the respondent to seek an alteration sought by the claimant with regard to future employment.  The procedures were fair and led to the exoneration of the claimant.  It was determined that the employer had acted reasonably.

 The cases of Conway v Ulster Bank and Beatty v Bayside Supermarket[2] both clearly establish that, where there is a union/management agreement or a grievance procedure, such procedure should be substantially followed by employees when they consider that there is a breach of contract by their employer.  

 In Harrold v v St. Michael’s House the determination quoted from Redmond, Dismissal Law in Ireland (2002 – as it then was):

“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 employee’s grievance procedures in an effort to resolve his grievance.  The duty is an imperative in employees’ resignations.”

 In Harrold, the employee objected to the composition of the enquiry panel established to investigate his claims on two occasions (when alternatives were offered). It was noted that he would have a right to appeal to a Rights Commissioner.  He refused to engage with the grievance investigation, alleging conflict of interest.  It was determined that the claimant’s persistent lack of engagement with the respondent’s grievance process meant that he had acted unreasonably and his claim for constructive dismissal was not successful. 

In Din v Dublin Simon Community[3], where the claimant on appeal to the Circuit Court, alleged that she had been subject to overwork and exclusion at work and that in spite of bringing the difficulties to her employer, nothing was done.  She claimed she was then forced to resign because of her health.  Judge Linnane held that the claimant had not behaved reasonably in failing to utilise the grievance process.

 In a 2017 case ADJ5216, the Adjudication Officer spent a considerable amount of time reviewing the case law in some depth.  The Adjudication Officer referred to a number of cases, including in particular, the case of Berber –v- Dunnes Stores 2009 E.L.R.61 where Finnegan J stated: “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.”

 The Adjudication Officer rightly pointed out that in such circumstances, the burden of proof is on the employee. The Adjudication Officer referred to cases such as Kirwan –v- Primark UD270/2003 and pointed out that going through the grievance procedure must involve a genuine attempt rather than simply going through it as a process. The Adjudication Officer also referred to the case of Barry -v- HSE Trading as HSE Northwest 2016 27E.L.R. 268 where it was stated:

“The Tribunal finds that the claimant did not give her employer an opportunity to deal with her complaint.”   She cited Zabiello –v- Ashgrove Facility Management Limited UD1106/2008, where it was held by the EAT: 

“For a claim of constructive dismissal to succeed the claimant needs to satisfy the Tribunal that her working conditions were such that she had no choice but to resign….The Tribunal is satisfied that the claimant did not exhaust the grievance procedures before she resigned. Accordingly the Tribunal finds that the claimant was not constructively dismissed.”

 The Adjudication Officer pointed out in that case that it is well established in law that the general rule is that the claimant must exhaust the internal process prior to lodging a claim with any external body. The Adjudication Officer, further pointed out that on occasions, and in very limited circumstances, when a claimant can prove, by the production of evidence that the invoking of the grievance process would be a fruitless exercise, the general rule can be dispensed with.  This is the exception in the case of Harkin –v- Guinness Storehouse Limited UD496/2015.  However, in ADJ5216, the Adjudication Officer held that exception did not arise on the particular facts and the claimant did not succeed.

 In ADJ3817, the Adjudication Officer held that the employee must prove it was reasonable for him to terminate his own employment due to a significant breach by the employer of a fundamental term of his employment contract or because of the nature and extent of the employers conduct and the circumstances in which the employee was expected to work it was reasonable to do so.  Again, the claimant was not successful. 

Frances Meenan in Employment Law (Round Hall, 2014), observes that:

 “An employee who is aware that there is a breach of contract should not live with such a breach for too long, because it could then be considered to be acquiescence to the breach of contract.”  

In Western Excavating (ECC) Ltd v Sharp[4] Lord Denning MR said that an employee must decide to leave soon after the conduct of which he complains.  

 It is submitted that even if there was any merit in the Complainant’s claims, many of them were quite historic by the time she resigned and long since ceased to be an issue (e.g. her interactions with Mr.O Gorman).  It is submitted that even she cannot maintain that she was so outraged by what occurred or that she felt the Respondent had acted so unreasonably as to hold itself out as being un-bound by the contract of employment – given that Mr O Gorman had departed some 6 months prior to her resignation.

 It is submitted that the great preponderance of legal authority supports the view that the conduct must be genuinely quite venal to justify constructive dismissal and moreover, save in rare and quite exceptional circumstances, an employee will be obliged to activate and exhaust her remedies under an employer’s grievance policy or bullying and harassment policy, before taking the ultimate step of deeming herself constructively dismissed.

 It is submitted that the Respondent  acted reasonably and proportionately in its dealings with the Complaint. 

 Bullying

 It is submitted that the impugned conduct in the present case (which is not admitted) could never constitute bullying, particularly if one considers how the threshold for bullying/harassment claims has been reconfigured, by the Supreme Court in the (relatively) recent case of Ruffley v The Board of Management of Saint Anne’s School [2017] IESC 33.

Therein, at paragraph 66 of O’Donnell J’s judgment, he sought to identify the type of behaviour that might constitute bullying and thereby undermines an individual’s dignity at work and stated: 

“...it seems to me that the requirement of conduct undermining dignity at work is a separate, distinct and important component of the definition of bullying which identifies the interests sought to be protected by the law, and just as importantly limits the claims which may be made to those which can be described as outrageous, unacceptable, and exceeding all bounds tolerated by decent society.” 

 It is very forcefully asserted that the Complainant has offered no credible evidence of conduct which might be so described, in support of her claim.

 O’Donnell J. further stated the test for bullying was; “a single definition and a single test: was the defendant guilty of repeated inappropriate behaviour against the plaintiff which could reasonably be regarded as undermining the individual’s right to dignity at work.”  

 Charlton J. (again in Ruffley) stated: “Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instill a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit.

Sometimes a disciplinary intervention may be necessary.”

 In the present instance, it is submitted that the employer’s actions do not even reach the threshold of being critical of the Complainant.  The evidence submitted by the Complainant suggests that she received largely positive feedback and was rewarded for her endeavours with regular pay increases, despite her short-lived tenure with the Company.

 Claim under the Organisation of Working Time Act 1997 Act

 It is submitted that based on the Complainant’s own Submission, this claim cannot succeed.   In direct contradiction of what is claimed in the Complaint Form (at page 10), she acknowledges (at page 12 of her Submission), that she informed Mr. Diskin that she did take lunch breaks and that she (and her colleague, Employee X) did go upstairs (i.e. to the canteen), for that purpose.  She claims that she only took half an hour for lunch, a fact that the Company disputes.  Nonetheless, a 30 minute lunch break would meet the requirements of the 1997 Act, in terms of a working day from 8:00 to 17:00.

Claim under the Terms of Employment (Information) 1994 Act

 It is not in dispute that the Complaint received and signed a Contract of Employment on 26th October 2023. It is unclear what she claims to have been the change to her terms of employment about which she was not notified (per page 13 of the WRC Complaint Form), but it is understood that she contends that her contract was varied insofar as remote working is concerned. By reference to the terms of the Contract of Employment, there was no contractual right to work remotely and the at the time of execution, the parties merely committed to review it (in tandem with salary). In summary, there was  no variation to the terms of the employment contract and the within complaint is therefore misconceived.

Witness evidence

The Complainant gave evidence to the Hearing and it was broadly in line with her submission above. I do not see the need to repeat the detail of each allegation here. Her main issue was the way she was treated and she alleged that an agreement to work from home was not honoured. She also had issues with what she perceived as physical intimidation and with the manner of dealing with work issues. The Complainant was cross examined and agreed the contract stated her place of work was the office unless otherwise agreed and agreed she had never been told not to take a break. The Complainant agreed she participated in Fridays breaks when a take out was provided for staff but felt this was manly for operations people and stated she was asked what she was doing attending the lunch. The Complainant confirmed she had a new position acquired before resigning and that she never used the grievance or bullying procedure. The Complainant confirmed she was at no loss of income as she commenced the new employment immediately after leaving the Respondent. The Complainant stated she wanted the management to be held accountable for what they did. The Complainant was asked to confirm she did not produce a medical certificate for her Covid and she agreed. The Complainant was asked to agree she raised no GDPR complaint and she agreed.   The Complainant advised she felt accused of things and was shouted at by Mr. Diskin at times. The Complainant stated she felt bullied by the way Mr. Diskin would approach her but found it hard to explain.

Mr. Kyle Prendergast gave evidence he replaced the Complainant and worked from December 9 2024 to around the end of January 2025. He advised he asked to work from home in mid January as he felt this was agreed and he stated Mr. Granahan jumped out of the chair and waved his hands at him. He advised the following week there was an issue with payroll software and he raised it with the software supplier and was told it could take a couple of days to fix. He estimated salaries and advised staff of the situation and was challenged by management as to his authority to do this..He was advised he was not to make these type of decisions and he alleged  that management had voices raised talking to him.

Ms. Rafela Santos gave evidence she was covering for maternity leave in accounts payable from April to December 2024, there was an issue with emails, that the tone of meetings was aggressive and when the Complainant resigned she was approached about a full time job. She advised there was a lot of gossip in the company, that Mr. Diskin was never aggressive towards her and that Mr. Granahan had a very aggressive way of dealing with people, that the atmosphere was toxic at work, that she did take her breaks and she understood that the Complainant had issues with Mr. Diskin for two years. She advised she left for a role with the HSE. She was asked about her resignation letter where she stated she really appreciated the work and her development and thanked the company for their support to her. She agreed that the office was not all unpleasant and that Mr. Granahan was not unpleasant to her at certain times. She advised that Mr. Diskins was great to work under, never heard of any les told and that most days she took her breaks upstairs and had lunch with the Complainant.

Mr. Aidan Diskin gave evidence on behalf of the Respondent.  Mr. Diskin stated he was the Managing Director and set up the company in 2012. It was involved in the maintenance sector and employed 35 staff, 23 on the road. He advised he was involved in recruiting the Complainant and she was employed initially as Head of Accounts Receivable and then changed to Head of Accounts, and was involved in dealing with customers, suppliers. Banks, payroll etc. He advised the Complainant started on a 38K salary in July 2023, received a further 2k in November 2023 and a further 2.5k in April 2024.He advised the Complainant sought further increases. He stated the contract of employment set out the place of work as the office but that the Complainant felt “entitled” to work remotely. He advised the contract had a clause stating that the role was office based and any working from home would be “as agreed.” He advised he never agreed the role was a hybrid role i.e part office/part working from home. He advised the Complainant did raise the issue in September and sought an increase but he was not happy there was no plan for accounts and what would the other staff do. He advised the Complainant was competent at her job and he had no issues with her performance. He advised the Complainant went out sick in the 3rd week of September, returned on October 8th and resigned and left at the end of October. It was put to Mr. Diskin had the company a grievance procedure and he replied yes and when asked had Complainant ever raised a formal grievance and he replied “no”. It was put to Mr. Diskin had he company an Anti Bullying policy and he stated they had and that the Complainant had never invoked it. He stated the Complainant resigned without raising an issue. He stated it was only 3 months after the Complainant resigned that he was informed about the allegations and was given 7 days to reply or a claim would be lodged with the WRC,

It was put to Mr. Diskin that the Complainant gave 5 reasons for her complaint, On the first issue he advised that the other employee left as she got a job with the HSE and was happy there and he was not aware of any issues that employee raised while working for them temporarily on a short term contract. It was put to Mr. Diskin the Complainant felt accused in the wrong about working from home when she had Covid and processing a pay increase for herself. Mr. Diskin replied the Complainant did not submit a cert for covid and was contacted by email by Mr. Grahanan when she was not in the office and he  emailed the Complainant when she was not at work and the Complainant replied by email and he receives between 60 and a 100 emails a day and has no time to read all of them as he is just copied on some. He advised he had some issues with payroll processing but no issues or blame in relation to the Complainant. It was put to Mr. Diskin that the Complainant felt there was a GDPR breach when the former Operations Manager informed him of medical appointments the Complainant had to attend. Mr. Diskin felt this was just normal office communication and he was told for operational reasons. Mr. Diskin stated he was unaware of any bullying and was never informed of it by the Complainant and he denied it “wholeheartedly”. Mr. Diskin denied he was aggressive but accepted he sometimes challenged issues robustly.

Mr. Grahanan gave evidence he knew Mr. Diskin before joining the company, that he had no issues with the Complainant and that he tried to be fair in dealing with issues. He stated his focus was on finding out why some clients had left, to address the underlying reasons and to stabilise the whole operation. With regard to the Complainant working from home with Covid he stated he questioned where the Complainant was and was not informed that she had Covid and that she had informed Mr. Diskin of the issue and he did not accuse the Complainant of lying. With regard to the allegation of bullying and that he behaved aggressively towards her about paying a creditors bill he advised that there was a cashflow issue at the time  and he was waiting on a large payment from a supplier and just wanted to payment of the creditor pushed out until the payment was received from the supplier. He denied being aggressive but was frustrated when a call was diverted to him from the supplier seeking payment and he queried why this was not dealt with by the Accounts payable staff.  He denied that he ever clenched his fists.

Conclusions

I have noted the respective position of the parties.  It is important to state I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

Findings;

 Claim for Unfair Dismissal;

The claim if for a constructive dismissal.

Definitions Section 1; ‘dismissal’ means……..

“(b) 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,…..”

The Complainant secured alternative employment, prior to tendering her resignation.  She finished work with the Company on Friday 31st October 2024 and commenced work the following Monday, 4th November 2024 with a new employer.  The Complainant suffered no loss of income. Therefore any award is limited to 4 weeks pay should the Complainant succeed in her complaint.  As dismissal as a fact is in dispute, it is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal within the meaning of the Act.

 Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal which is unfair within the meaning of the Act. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment the employee would be entitled to regard himself or herself as having been dismissed and that the dismissal was unfair. In the UK Court of Appeal Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332held that “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”.A line of authorities has since established this decision as defining the “contract test”. The only area that this could be considered is in relation to working from home and the contract is very clear that this had to be agreed and was not the sole remit of the Complainant to decide. Therefore the contract test does not support the Complainant case.

Secondly, it is settled law that Adjudicators, in considering a complaint of constructive dismissal in application of Section 1 of the Act, must consider whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee could not fairly have been expected to put up with it any longer such that he or she was justified in terminating their employment. It is this area that the complaint must be examined.

The Complainant set out a large number of issues which she alleged over a period of time culminated in her having to leave the employment due to the conduct of the Owner and another senior manager. The grounds for her resigning were set out in her evidence but the evidence of the Respondents two Managers who allegedly acting unreasonably directly contradicted this evidence.

At no stage did the Complainant initiate the formal grievance procedure about any of the issues she alleges contributed to her resigning. At no stage did the Complainant initiate the Bullying procedure. It is not clear that the Complainant clearly set out she had substantial issues prior to resigning. The Complainant also organised a new job well in advance of her resigning her employment and suffered no loss of income.

The Respondent has submitted that the failure by the Complainant to utilise the grievance procedure of the Respondent is fatal to his complaint. The Complainant did not go to any great detail to explain why she did not utilize the grievance procedure but this is somewhat understandable given her issues were with the person who would have to co-ordinate the grievance procedure. In most situations the failure to use the grievance procure is fatal to a claim for unfair dismissal.

The evidence from the two staff that the Complainant provided as witnesses to support the claim was not conclusive to any degree of the Complainants allegations and is limited in its value to my assessment of the complaint.

In all of the circumstances, the Adjudicator concludes that the Complainant has failed to establish that the matters she alleges form a sufficient basis for her to leave her employment and claim unfair dismissal. Many of the issues quoted border on operational issues and many of the grounds cited as unreasonable were contested by the evidence of the Respondents Managers.  My overall conclusion is the Complainant has not established a case to justify her claim for unfair dismissal. There was no guarantee of working from home at any time except as agreed. The Complainant got two very reasonable salary increases, this is not the action of an Employer who wishes the employment relationship to end. I have no question that there was a conflict in personal styles between Mr. Diskin and the Complainant and this led to tensions between them but they were not proven to be of sufficient order to justify the complainant resigning her position and claiming constructive dismissal. None of the alleged aggressive behaviours were able to be proven and were highly contested by the Managers alleged to have been involved.

The Adjudicator concludes that the Complainant was not constructively dismissed by the Respondent  and that the complaint for unfair dismissal is not well founded.

Claim under Organisation of Working Time

The Complainant claimed she did not get her breaks as per the Act.

Section 12 places a statutory obligation on employers to ensure that an employee is given breaks during the working day:

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The Complainants case was that she had to stay at her desk on a lot of occasions and could not take her break. The Respondents case was that, as a senior employee, along with other staff, the Complainant had the option of when and where to take her break and that some staff took it at their desk, some went for walks, some went to their car and some went to the canteen.  It appears that the Complainant was never informed she could not take her lunch breaks but took it as the norm when she joined. This was a decision the Complainant made and was not “forced” on her. The Respondent did not have a record of when the Complainant took breaks. In the Complainants submission there was evidence she asked to work her breaks some times and the Respondent stated that if the Complainant came in later than her start time she would ask/ agree to work up the time at her lunch break.  There was also evidence the Complainant did attend the canteen on occasions.  There was also an email from the Complainant stating she wished to work her break for a period on a particular occasion. 

All Employees are entitled to their breaks as per the law and the Respondent did not have any record of what times the Complainant did take her breaks. Equally there is no evidence the Complainant was told she could not take her breaks and the Respondents evidence was they gave staff flexibility to take their lunch breaks over a few hours at lunch. My conclusion is, that as a senior management employee,  the Complainant was very much in charge of her work time however this does not exonerate the Respondent for keeping records of breaks to ensure compliance with the Act.

The Complainant did not provide details of dates she did not receive her breaks but instead relied on a generic claim for the cognisable period. The complaint was lodged to the Workplace Relations Commission (WRC) on 31 January 2025.  Therefore, the relevant period for consideration by the Adjudicator in assessing the complaint, having regard to the six-month statutory time frame set down at Section 41(6) of the Workplace Relations Act, 2015, is the period from 30 July 2024 to 31 January 2025. The Complainant resigned on 31 October 2024 so therefore the practical work time involved is 3 months. In the Complainants evidence she advises that she informed the Respondent, in or around September 2024, that she would be taking her breaks, which in effect further reduces the period of time to consider for this complaint to approximately a month. It is important to state the Complainant was entitled to an hours break in her contract but that the law stipulates a half hour break is what is required. The Act allows for a maximum of 4 weeks compensation for a breach of the Act. This would apply to a case where there are no mitigating circumstances for the Respondent not providing break mandated by the Act.

Given the assessment of the short work time (one month approximately) involved and the Complainants role that she was involved in, and in part, to working some breaks at her request,  I find that the Respondent did not maintain records of the Complainants breaks and are in breach of the Act.  I find that the Respondent has not discharged the burden of proof on it to demonstrate its compliance with section 12 of the Act with regard to the complaint in the period in question. Given the conflict in evidence and the limited period involved I award the Complainant 500 Euros compensation as a just and equitable award for breach of the Act.

Claim under Terms of Employment

In summary the Complainant alleged there was a change to her terms of employment because she was given a promise she could work from home at interview for part of the week and this was not honoured. This was denied by the Respondent in his evidence. The contract of employment signed by the Complainant stated she would normally work at the Respondents premises and work from home as agreed. There was no commitment to any fixed hours or days to work from home in the contract. Given the issue is disputed by the evidence of parties the only and main point of reference is the contract of employment. Based on the contract of employment there was no change made by the Respondent to the contract of employment and the complaint 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.

I find that the complaint under the Terms of Employment (Information) Act (1994) is not well founded. (CA-00068975-001)

I find that the complaint under the Organisation of Working Time Act (1997) is well founded  and award the Complainant 500 Euros for breach of her employment rights.    (CA-00068975-003 )

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. I find the Complainant was not unfairly dismissed and the complaint is not well founded. (CA-00068975-002) 

Unfair Dismissal