ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00056999
Parties:
| Complainant | Respondent |
Parties | Almir Zahirovic | Killiney Hotels Limited t/a Fitzpatrick Castle Hotel |
| Complainant | Respondent |
Representatives |
| Paula Walshe Arag Legal Protection Limited |
Complaint:
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-00069291-001 | 14/02/2025 |
Date of Adjudication Hearing: 09/07/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that he was constructively dismissed which means that the onus is on the Complainant to demonstrate that her Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation. The burden of proof shifts to the Complainant in a situation of constructive dismissal. The Complainant must demonstrate that he was forced to terminate his contract of employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate his employment (as defined in Section 1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive dismissal in the statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the contract test where an employee will argue an entitlement to terminate the contract of employment because of a fundamental breach of the employment contract on the part of the Employer. The breach must be a significant breach going to the root of the employment contract.
Secondly, the Employee may allege that he satisfies the 1977 Act’s “reasonableness”test. That is that the conduct of the Employer was such that it was reasonable for him to resign. That is to say that the Employer has conducted it’s affairs so unreasonably that the Employee cannot be expected to put up with it any longer and is justified in leaving. The test is objective. The test requires that the conduct of both Employer and Employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. The conduct of the Employer that is being 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 Complainant herein has referred a complaint of having been unfairly dismissed from his place of employment (by reason of constructive dismissal) by way of workplace relations complaint form dated the 14th of February 2025.
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would always have regard for the seminal Employment Appeals Tribunal case of UD 474/1981 Margot Conway -v- Ulster Bank Limited wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant 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.”
Lastly, where an Employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
Background:
This hearing was to be conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was to be conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. Had evidence been given it would have been in compliance with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came intoeffecton the 29th of July 2021, and which said legislation accommodates situations where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint. In such circumstances, an oath or an affirmation may be required to be administered to any person giving evidence before me. It is noted that the giving of false statements or evidence is an offence. The Complaint herein was brought to the attention of the WRC on the 14th of February 2025 by way of a workplace relations complaint form. |
Summary of Complainant’s Case:
The Complainant did not attend. I am satisfied that the Complainant was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 5th of June 2025 - and sent to the address provided by the Complainant on the workplace relations complaint form. From the Complaint form provided, I have discerned that the Complainant seeks to establish that he was constructively dismissed from his workplace wherein he had worked for some three or four months. The Complainant asserted an entitlement to relief under this act by reason of an issue concerning adoptive leave. It is noted that personnel from the Workplace Relations Office tried to communicate with the Complainant using the email and the telephone number provided but the Complainant did not respond and the email bounced back |
Summary of Respondent’s Case:
The Respondent had full legal representation at this hearing. The Respondent provided me with a comprehensive submission in advance of the hearing. The Respondent rejects that there has been a Constructive Dismissal and does not accept any contravention of Employment Rights as protected by statute. |
Findings and Conclusions:
As the Complainant did not attend to make his case it cannot succeed |
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00069291-001 – The complaint of constructive dismissal fails.
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Dated: 06-08-2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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