Complainant

Respondent

Parties

Cormac  Mohally

Circus Factory CLG

Representatives

Self-Represented

Colleen Sparling O’Riordan Anne O’Neill Solicitors

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-00069877-001

10/03/2025

The Complainant was employed as an Artistic Director with the not-for-profit Respondent company from 1 January 2021 until his resignation on 17 September 2024. He worked 25 hours a week for a gross salary of €2000; net €1807.52.

The Complainant claims he was constructively dismissed because he was subject to unacceptable behaviour from the Respondent that included targeted harassment, incorrect investigation of unsubstantiated complaints, exclusion from operational decisions and humiliation in public with resulting reputational damage, to the extent that he had no other option but to resign.

The Respondent rejects the claim of constructive dismissal saying that it always acted professionally towards the Complainant. It claims there was no fundamental breach of contract, and that the Complainant raised no grievance referring to the issues raised, prior to his resignation.

Summary of Complainant’s Evidence – Constructive Dismissal:

The Complainant alleges he was constructively dismissed due to a sustained breakdown in trust and support from the Respondent’s board. In the summer preceding his resignation, the board became hostile, communication ceased, and the Complainant felt deliberately excluded and unsupported. As a result of this breakdown, he engaged a solicitor, who wrote to the board requesting that they cease defamatory actions and facilitate his return to work.

Upon returning to the workplace to perform duties during a festival, the Complainant stated that he was confronted by board members. The Gardaí were called, and he was suspended without prior notice or a formal meeting.

The Complainant asserted that previously withdrawn allegations of misconduct were reopened without clear justification. The investigator assigned by the Respondent was, in the Complainant’s view, not impartial, due to prior involvement with the board in an earlier investigation.

The Complainant resigned on 13 September 2024, citing an inability to carry out his role safely or effectively owing to a lack of trust in the board’s handling of internal matters.

The Complainant argues that there was a fundamental breach of his employment contract, particularly through exclusion and the board's failure to support him. He claimed there was an unjust restriction on his access to the workplace, despite a hybrid working agreement. The Complainant maintains that the Respondent’s conduct — including threats, exclusion from the workplace, and mishandling of allegations — rendered continued employment untenable, amounting to constructive dismissal.

Mitigation of Loss:

Since resigning, the Complainant has earned approximately €150 per month through his company and has relied on savings to meet living costs. He applied for other work but did not retain detailed records of job applications. While acknowledging an obligation to mitigate his losses, he stated that his experience with the Respondent had left him “emotionally and mentally drained.”

Cross-Examination:

The Complainant sent a legal letter to Circus Factory but accepted that he did not initiate court proceedings for defamation nor lodge a formal grievance. He acknowledged that he was in Italy in May 2024 and claimed to be working while also being paid by the Respondent. He denied being officially on sick leave, despite having been prescribed a sick note for stress, and asserted that no one acknowledged or processed the medical note.

The Solicitor for the Respondent put it to the Complainant that, despite claiming the workplace was untenable, he had entered discussions about a new contract. He responded that he was “pressured into it”, adding that the proposed contract would have altered his employment status from PAYE to contractor, affecting his pension and financial security.

The Complainant accepted that he had been instructed not to attend work in person but to work remotely on the day the Gardaí were called to the festival. He said he only learned that he was formally suspended on the day of the incident.

Witness Testimony – Rachel Vitry:

Rachel Vitry, a work colleague of the Complainant, gave evidence. She stated that in June 2024, Mr A, a board member, called her seeking her views on an incident from November 2022. She said the incident involved her directly, but she did not wish to go into graphic detail as there had been no formal investigation and she did not want to damage anyone’s reputation. Mr A asked whether her account could be shared with the board to support another complaint. She clarified she had not made a formal complaint in either 2022 or 2024. She received no written notes or follow-up communication after the conversation, and the only interaction she recalled was the discussion with Mr A.

The witness said the matter had weighed on her, especially after hearing that allegations of misconduct had arisen, though she had no direct involvement in any disciplinary process. She acknowledged that while she did not perceive the behaviour as sexual, others might reasonably interpret it differently. She stressed that it was someone else’s complaint under investigation, not hers.

Witness Testimony – Aysegul Yuzel:

Aysegul Yuzel, Production Manager with the Respondent at the relevant time, gave evidence. She said that in May, during preparations for World Circus Day, she began managing in-house productions and had to take on additional responsibilities after the marketing manager left without completing her work. Following the event, some community members expressed dissatisfaction and accused the organisation of being exclusionary. She explained that artist selection was based on artistic merit, not membership, and noted that two community members were included. Nonetheless, she described facing tension and mistreatment from some members, including what she termed an “effective boycott” of an event.

When the general manager resigned, the witness said there was no communication from the board, and she only learned of it through an email on the general manager’s last day. She also recalled poor communication during festival planning.

On 1 August 2024, she received an email from the board stating that the Artistic Director (the Complainant) would be working remotely. The email was unsigned and sent on behalf of the board. She had never met the board members and only recognised them from the website or via other staff.

On 23 August, just before the festival opening, she recounted Ms B and Ms C from the board entering a small office and telling the Complainant he was suspended. The Complainant insisted they speak with his solicitor and eventually left. She described feeling shocked and frozen by the situation.

In cross-examination, the witness rejected the suggestion that the suspension had been delivered privately or sensitively, stating that it occurred in a shared space. She denied that the board members’ demeanour reflected relief, saying instead that they appeared satisfied with the outcome.

Witness Testimony – Lidija Gola:

Lidija Gola, a circus performer, testified that the workplace environment at the Respondent company had deteriorated significantly following an incident involving the Complainant. She described a complete lack of confidentiality and widespread gossip that painted the Complainant as dangerous. New members, she said, were quickly influenced by these rumours before even meeting him.

She recalled a distressing incident at the festival opening on 23 August 2024, when Gardaí were called to manage the Complainant. She was stationed at the entrance to ensure that he could be escorted away without causing a scene in front of the Lord Mayor and other dignitaries.

The witness said she felt alienated and described a toxic workplace atmosphere characterised by gossip and division. Although she had used the space daily for five years, she eventually found it unbearable and left, despite the difficulty in finding alternative training venues. She noted that others in the community were similarly affected.

In cross-examination, she accepted that she was placed at the entrance as a precaution in case the Complainant needed to be politely asked to leave, and that there was no intent to distress him. The Respondent’s solicitor suggested that her presence implied management expected non-compliance. The witness confirmed she was asked to stand at the door only after the show had begun, and that Gardaí were called only after the Complainant refused to leave. They arrived after the show ended.

Witness Testimony – Ms Noelle Ní Riagáin:

Ms Noelle Ní Riagáin, Artist Liaison with the Respondent and the Complainant’s wife, gave evidence. She described a breakdown in communication and support for the Complainant, which she said led to a decline in his mental health and eventual resignation. Problems began around World Circus Day 2024, when key staff failed to support an event and rumours of an internal boycott emerged. Artists began questioning decisions and felt excluded without explanation.

She described how she believed the Complainant was increasingly side-lined by management, decisions were made without his knowledge, and he received conflicting communications. She said that although he received a sick note from his GP, he continued engaging with the board under pressure.

She also described meeting people at a European festival, where artists recounted negative experiences with the Respondent company, which added to the Complainant’s distress. She recounted his emotional collapse and said she advised him to resign after he suffered a breakdown at home. She believes the Respondent failed in their duty of care and did not follow fair or transparent procedures during investigations, contributing to what she regards as a constructive dismissal.

Evidence of Mr Lauri Mannermaa, Company Manager:

The witness gave evidence on behalf of the Respondent. From the outset he explained that his evidence was based only on records available to him. He had been in the position from 22 January 2025, and therefore he acknowledged he was not present for the events pertinent to the matter at issue.   Ms D was appointed to lead an impartial investigation when a complaint was made about the Complainant in May 2024. Independent of this, there were discussions about modifying the Complainant’s role, and a proposal was circulated to the board, though nothing was finalised.

 He said an alleged incident occurred in August 2024 involving the Complainant’s presence on site. The board decided to suspend the complainant to avoid further conflict. This was communicated in person on 23 August by two board members followed by an email. The board felt the Complainant’s behaviour was tense or aggressive.  Despite the suspension, the witness said the Complainant returned to the premises at least once. Access was removed, and Ms D commenced her investigation in early September. The complainant objected to her appointment, but the company maintained she was independent.  

In cross examination, the Complainant pointed out that no interview was conducted with him and the investigation was never completed. The witness admitted the process was unfinished.  The witness acknowledged he was not present during the alleged incident of aggression and agreed it was essentially one person's word against another’s after the Complainant put it to him that he (the Complainant) was not aggressive on the day the Gardai were called. The Complainant highlighted that an email sent on 17 July outlining the organisation’s artistic programme excluded him. He put to the witness that this undermined his role as Artistic Director. The witness suggested the email was just a proposal, not a demotion.

In reference to an incident that was under investigation at the time, the Complainant put it to him that he did not lock a colleague in an office, saying the door was never shut. The witness could not confirm either version as he was not present. The Complainant questioned the fairness of receiving a suspension via an unannounced in-person visit followed by email. He also stated that he was never shown formal complaints, making it impossible to respond. The witness acknowledged this was an informal stage and agreed the process may not have been fully transparent. The Complainant put it to the witness that he attempted to engage and communicate with the board but received no meeting notes or responses. The witness conceded the Complainant had made efforts to engage.

Legal Argument:

The Respondent invoked Sections 1 and 6(4) of the Unfair Dismissals Acts 1977–2015, which provide that a dismissal is presumed to be unfair unless the employer can demonstrate substantial justification. Constructive dismissal, as defined in Section 1(b) of the 1977 Act, occurs where an employee terminates the contract of employment, with or without notice, due to the employer's conduct having fundamentally breached the terms of the contract.

The Respondent denies that a dismissal occurred, asserting that the Complainant voluntarily resigned. The Respondent contends that the legal threshold for establishing constructive dismissal is high, citing the Supreme Court decision in Berber v Dunnes Stores [2009] IESC 10. That judgment confirms that a constructive dismissal requires a fundamental breach of contract or a serious erosion of the employment relationship by the employer.

In support of its position, the Respondent also relied on the leading UK authority Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, which established that a constructive dismissal claim must be based on a repudiatory breach by the employer and that the employee’s resignation must be a direct response to that breach. Furthermore, the Respondent referenced Conway v Ulster Bank Ltd (UD474/1981), which underscores the requirement that an employee must ordinarily exhaust internal grievance procedures before resigning.

The Respondent submitted that it acted reasonably throughout. Following a proposal initiated by the Complainant, the Respondent offered a revised role and issued a new contract reflecting the proposed terms. The Complainant did not provide a formal response to this offer. On 17 September 2024, the Complainant resigned without raising a formal grievance or seeking to negotiate further terms. The Respondent notes that, even after the resignation, the Board remained open to dialogue and offered support through its Human Resources department—an offer that was not taken up by the Complainant.

The Complainant claims that he was constructively dismissed. Section 1(1)(b) of the Unfair Dismissals Act 1977 defines constructive dismissal as:

“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.”

It is well established that in constructive dismissal claims, the burden of proof rests with the complainant. The focus of the inquiry is primarily on the employer’s conduct. This principle was affirmed in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 322, in which Lord Denning set out the test as follows: whether the employer "conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, and if so, the employee is justified in leaving."

In the present case, I note that the Respondent called only one witness, Mr Mannermaa, who was appointed to his role on 22 January 2025. While he presented as a sincere and credible witness, his evidence was based entirely on company records and second-hand accounts. He was not able to rebut sworn testimony regarding the relevant events in 2024. No other board member or first-hand witness from the Respondent gave evidence.

The Complainant's case is based on an alleged fundamental breach of the implied term of mutual trust and confidence, arising from the mishandling of internal complaints and the revival of historic allegations without procedural fairness.

In May 2024, three complaints were made against the Complainant. By letter dated 3 July 2024, submitted in evidence, the Respondent confirmed that these complaints had been withdrawn. The letter further acknowledged procedural failings, stating:

“We realise that we did not follow the employee handbook guidelines or supply you with the name, nature of complaint in good time and apologise for that.”

Despite this acknowledgement, the same letter referred to two further historical allegations, in addition to a new and serious accusation that the Complainant had locked a colleague in an office—an allegation which the Complainant strongly denied during the hearing.

It later emerged that the previously withdrawn complaints were reinstated on 12 August 2024 without any documented rationale or explanation. The Complainant gave unchallenged evidence that, on 23 August 2024, he was suspended on full pay without prior notice, without being informed of the reasons for his suspension, and without any opportunity to respond. He further testified that An Garda Síochána were summoned to a performance venue to remove him—an incident he described as professionally damaging and personally humiliating.

This account was corroborated by Ms Yuzel, the Production Manager, who testified that she was shocked by the Respondent’s actions, particularly the decision to involve the Gardaí. She further stated that members of the Respondent's management team appeared satisfied with how the incident was handled.

In the lead-up to this event, the Complainant provided persuasive and uncontested evidence that he had been excluded from key meetings, denied access to the workplace, and left without clarity as to his employment status or role. Additional witnesses described the working environment as toxic and marked by poor communication. They stated that the Complainant had been marginalised by the board and isolated from decision-making processes.

The involvement of An Garda Síochána—despite the Complainant having already been suspended on full pay—was, in my view, a disproportionate and unnecessary escalation. On the balance of probabilities, the way the incident was handled appears to have been calculated to cause reputational harm and personal distress. This event must be considered alongside the Respondent’s earlier admission that it failed to follow its own internal procedures in prior investigations. Taken together, these actions demonstrate a pattern of inconsistent, reactive, and procedurally deficient HR practices.

I am satisfied, based on the totality of the evidence, that the Respondent’s conduct amounted to a serious breach of the implied term of mutual trust and confidence. The Complainant was subjected to a hostile and exclusionary environment, denied participation in critical workplace functions, and undermined through inconsistent application of company policy. There was credible and unrefuted testimony regarding reputational harm, internal gossip, and breaches of confidentiality—all of which contributed to the Complainant’s psychological distress. This was further corroborated by the testimony of the Complainant’s spouse, who was also a colleague.

The Respondent submitted that the Complainant failed to exhaust internal grievance procedures. However, I do not consider this argument persuasive in the circumstances. While it is generally expected that employees utilise available internal mechanisms, this obligation is not absolute. The Respondent was fully aware of the Complainant’s concerns and yet repeatedly failed to adhere to fair procedures. Notably, it reinstated previously withdrawn complaints without explanation, unilaterally appointed external investigators without the Complainant’s knowledge, and failed to afford the Complainant any meaningful opportunity to participate in or respond to these processes. The Respondent's own correspondence acknowledged these procedural failures. In this context, the grievance mechanisms were rendered ineffective and procedurally unreliable.

Conclusion:

I find that the Complainant’s resignation was both reasonable and directly attributable to the conduct of the Respondent. The resignation followed a sustained period of exclusion, unresolved conflict, and procedural irregularities. The Respondent failed to demonstrate compliance with basic principles of fairness, transparency, and respect.

While the Complainant’s contract contained an addendum affirming his position as a supported member of senior management, no credible evidence was presented by the Respondent to show that such support was provided. On the contrary, the weight of the evidence indicated a withdrawal of support and a consequential breakdown of the employment relationship.

The decision to escalate matters to An Garda Síochána constituted an extraordinary and inappropriate intervention. Credible testimony indicated that certain board members appeared to derive satisfaction from the Complainant’s public humiliation. Having considered all relevant events from May 2024 onwards, I am satisfied that the Complainant had no reasonable alternative but to resign.

Applying the test articulated in Western Excavating, I conclude that the Complainant could not reasonably be expected to tolerate the Respondent’s conduct any longer. I therefore find that the Complainant was constructively and unfairly dismissed.

Redress. Redress for unfair dismissal is provided for under Section 7 where it provides: - 

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid...

The Complainant stated in evidence that he operated a separate company but that his income amounted to €150 per month. He provided no evidence of having applied for work beyond indoor and outdoor circus act performances. The burden rests with the Complainant to demonstrate that he made reasonable efforts to mitigate his loss by actively seeking alternative employment.

Having considered the evidence, I find that the Complainant’s efforts in this regard were minimal. Taking this into account, I consider that an award equivalent to six months' pay—amounting to €12,000—is just and equitable in all the circumstances.

For the reasons outlined above, I find that the Complainant was unfairly dismissed, and I direct the Respondent to pay the Complainant the compensatory sum of €12,000.

Unfair Dismissal, Constructive Dismissal.