UDD2526

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00035164 (CA-00046291)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 11 December 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 30 April 2025.

The following is the Decision of the Court: -

DECISION:

This is an appeal by Marlboro Trust (Retail Limited) (“the Respondent”) of a decision of an Adjudication Officer (ADJ-00035164 - dated 3 November 2023) in relation to a claim made by a former employee, Glenn Cotter (“the Complainant”), under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that the claim of unfair dismissal was well founded and awarded €24,000 compensation.

1. Summary of the Complainant’s case

The Respondent operates a credit company which sells goods to consumers on credit both in a retail setting and by delivery directly to customers houses. The Complainant commenced employment with the Respondent as a relief supervisor on 6 January 2014 and was promoted to a role of sales representative in October 2017. The Complainant resigned his employment on 15 April 2021.

The Complainant submits that he is entitled to claim constructive dismissal due to the Respondent’s failure to address a litany of matters which constitutes a breach of his contractual rights. The Complainant was forced to undergo persistence bullying, harassment, threats and abuse by servants or agents of the Respondent for almost his entire employment relationship. The Respondent acted so unreasonably as to render the employment relationship untenable.

Little or nothing was done to address multiple complaints made by the Complainant. He was forced to engage a solicitor to finally get the Respondent to engage its own grievance process and transfer the Complainant to work under a new line manager.

The Complainant, who reasonably expected matters to resolve themselves once he changed line manager, continued to be abused, harassed, bullied and threatened with physical violence by servants or agents of the Respondent, culminating in an incident where the Respondent implied that he had misappropriated funds, despite clear evidence to the contrary, and organised an ill-conceived disciplinary hearing in breach of its own processes.

In the circumstances, continuing in employment with the Respondent was intolerable. The Complainant dutifully engaged with the Respondent’s grievance procedures for many years to no avail, save for a brief period when his line manager changed after his solicitor became involved with the procedure. This was a mere temporary response, having regard to the occurrences after the fact.

In An Employee v. An Employer UD1274 2010 the Employment Appeals Tribunal held that there is no requirement to exhaust an employers’ grievance processes where the employer “handled the situation badly.” The situation leading to the Complainant’s constructive dismissal was not just badly handled, but was handled in a completely inexcusable way and, therefore, falls within this exception.

2. Summary of the Respondent’s case

It is the Respondent's position that it neither acted unreasonable nor did it breach the Complainant’s terms and conditions of employment such that he could legitimately resign and seek relief for constructive dismissal.

The Respondent at all times operated within the terms of the contract of employment between the parties. The Respondent fulfilled its contractual obligations, implied and otherwise at all times. No contractual violation occurred. The termination of employment fails on a contractual test to be a constructive dismissal.

The Respondent acted fairly and reasonably at all times in accordance with its policies, best practise, and appropriate conduct.

There was no accusation of theft against the Complainant, however, there was a missing lodgement, which the Respondent was unable to resolve at the time. Engaging with the Respondent would have helped both parties resolve that issue, however, as the Complainant refused to engage this did not happen. 12 months after the initial missing lodgement was noticed, it was found as a card payment indicating that the Complainant had mislabelled the lodgement as received in cash and not via the Respondent’s new card payment service (swoofee).

In advance of the Complainant furnishing his resignation, he could have notified the Respondent of any concerns he may have had in relation to his employment and utilised internal procedures to resolve any grievance, which he failed to do. The Respondent has a comprehensive grievance procedure in place. It is clear from previous grievances raised and correspondence that the Complainant was aware of the grievance procedure and still chose not to utilise this as he had raised grievances in the past which had been resolved.

The Complainant acted in a hasty, unreasonable manner by resigning his position before notifying the Respondent of his concerns and in advance of exhausting internal procedures.

3. Testimony

The Court heard sworn evidence from the Complainant and five witnesses from the Respondent company: - Robert Twomey (line manager), Liam Walsh (Area Manager), Hugh O’Leary (Transport Manager), Rob Reardon (Chef Operations Manager) and Sean McCarthy (Sales Manager).

4. Evidence of the Complainant

The Complainant started work as a supervisor in January 2013. Issues first arose with his line manager, Ron Twomey, in Summer 2013. He felt that management was always trying to put him down.

In June 2015, there was an incident when he requested time off, as his wife was in hospital. His line manager was very aggressive and abusive to him.

In 2018, he was promoted to a sales representative position, which he fought hard to get.  His rota was Blarney (Monday), Mitchelstown (Tuesday), Shop (Wednesday), Killarney & Tralee (Thursday & Friday). Sales reps had a choice of car of jeep as their preferred work vehicle. He was given a Peugeot Export van and was not allowed a jeep or car.

The job entailed giving customers loans and merchandise and collecting weekly repayments. Some customers had difficulties with repayments. On one occasion, a customer threatened to shoot him, yet no action was taken, and his line manager blamed him for making that customer irate.

On another occasion in June 2018 when he stayed overnight in Tralee, he had to stay up drinking with his line manager and another colleague, although he did not want to drink as he was on medication.  His line manager was showing porn on his phone, even though no one was interested.

He tried many times to raise issues with Sean McCarthy and Phillip O’Sullivan about his line managers behaviour. He asked to change line manager but was not allowed. He was told it would be embarrassing for a manager to be replaced.

In January 2020, he went to An Garda Siochana after he was physically threatened by Hugh O’Leary, the transport manager, in Blarney. He reported that matter to Sean McCarthy who took Hugh O’Leary out to lunch to hear his side.  Rob Reardon conducted a bit of an investigation, but nothing came of it. He was told to put the matter behind him.

At that point, he instructed solicitors who wrote to the company in February 2020. Nothing changed after that letter was sent.

In July 2020, there was an incident when he had to call in sick with a migraine.

The Complainant was blamed when money went missing. He had given another colleague (K) money so that she could give an emergency loan to a customer. He couldn’t remember what had happened to it, when initially asked about it, but remembered later. He was accused of stealing the money. He tried to explain but no one was listening, and he was suspended. Everyone though he was a thief. He was gutted. Apparently, it was banking error and the money turned up a year and a half later.

His solicitor wrote another letter in October 2020. By that time, he was out on sick leave with diagnosed depression and anxiety. The company handled the situation terribly. He resigned as he had no confidence in the grievance process in the company. 

Under cross examination, the Complainant accepted that he never lodged a formal grievance about the 2017 incident, when his wife went to hospital. He said that he spoke with Brian O’Sullivan about it, but it was not dealt with properly. He did not know that he could have appealed that matter. The Complainant accepted that he chose to stay in the company, thereafter, and never raised a formal grievance about any matters.

The Complainant could not recall saying, in his evidence at the WRC hearing, that the incident with Hugh O’Leary was a trivial matter.

The Complainant accepted after his solicitor wrote a letter to the company raising a grievance in February 2020, he met with Sean McCarthy, and they agreed to focus on finding a solution. He received minutes of that meeting, and his reporting line was changed to Liam Walsh. He acknowledged that he received a response to the queries he raised and that his issues were resolved before he returned to work, and he agreed to move on.

The Complainant said that he was aware of the absence procedure and the requirement to ring in by 10.00am when absent from work. He could not recall efforts made by Liam Walsh to contact him on 11 June 2020.

In July 2020, on his way to Killarney, he had a migraine, and phoned Liam to tell him that he had to get an injection from his doctor in Killeagh. He never said that he would return to work.

The Complainant said that he could not explain anomalies in the dates recorded on sick certificates he submitted. He agreed that the company agreed to cover the cost of two counselling sessions recommended by his doctor, when he was absent on sick leave.

The Complainant acknowledged that he was at work, and not sick, when on 8 September he was invited to attend a meeting to discuss the missing lodgement. He did not attend that meeting and refused to attend other meetings scheduled for 12 September 2020 and 1 October 2020.

The Complainant said that he was fed up with the whole lot of it and felt that he was being set up. He was accused of stealing money and was very concerned about it. He had told Sean McCarthy that he had given the money to another employee (K) in June. He did not accept the contention that the money given to (K) was a separate matter and did not relate to the missing lodgement. He did not help with the investigation because he was fed up, at that stage. He was under stress.

He attended an investigation meeting on 12 October 2020 and was then asked to attend a disciplinary hearing, which was put on hold as he was still sick. He emailed Sean McCarthy on 13 and 14 October to ask him why he was being set up and subject to bullying. He instructed his solicitor to write the letter dated 16 October 2020, as word was getting around that he had stolen money.

The Complainant accepted that emails exchanged with Sean McCarthy in December 2020 were cordial, but that his tone became aggressive in emails he sent to him in February 2021. He said that he felt that he was being brushed off by Sean. He did not want to engage with Phillip O’Sullivan in a disciplinary meeting and did not understand why he had to speak with him. Sean McCarthy asked him if he was sure about his decision to resign and provide him with a reference.

5. Robert Twomey – Line Manager

Mr Twomey was the Complainant's line manager until 2020. His evidence was that the Complainant never made a formal complaint outside of those contained in the solicitor’s letter in February 2020. Sean McCarthy investigated that matter. He was unhappy that the Complainant wanted to leave his team, as the optics would not look good. There were several meetings. He thought they had buried the hatchet.

He never subjected the Complainant to bullying or was aggressive towards him. They worked in a highly regulated industry and sometimes he had to take employees to task.

Mr Twomey disputed the Complainant’s evidence about several matters. He denied that he acted aggressively in June 2017 and said that it was the Complainant who had barged into the office at that time. No formal complaint was made to him about a customer with a shotgun, so he did not report that matter to An Garda Siochana. The Complainant had an ongoing issue about cars and vans. As he worked overnight runs, a van was warranted. He did not hear about the pornography allegation until the WRC hearing, which was upsetting, as he did not have an opportunity to refute that allegation which was later reported in the media.

Mr Twomey said that he conducted a random audit when the Complainant was on leave and discovered that he was not calling to certain customers. He was involved in investigating the missing lodgement. At no stage was the Complainant accused of stealing. The missing money was found later in 2021, after the complainant had left the employment,

6. Liam Walsh - Area Manager

Mr Walsh became the Complainant’s line manager in 2020. In June that year, he had a conversation with the Complainant about communications as he uncontactable one day when his wife was ill.

At the end of July, he received a phone call from the Complainant who was en route to Killarney. The Complainant had a migraine and said he needed to get an injection from his doctor in Killeagh. He understood the Complainant experienced migraines and that once he got the injection, he would return to work. He heard nothing further and discovered the following Tuesday that the Complainant had not worked on the Friday. If he had known he was sick, cover would have been arranged.

Mr Walsh and Sean McCarthy met with the Complainant to discuss that matter when he returned to the office on Wednesday. At the end of the meeting a missing lodgement from mid-June was mentioned. It was a casual conversation and was not a big deal initially as balancing issues can arise and they get sorted. The Complainant did not mention anything about giving money to another employee (K) at that point, nor was there was a reference to it in his book. Thereafter, the Complainant would walk away from him when he tried to raise the issue. If the Complainant had sat down, they would have sorted the matter out. He was never accused of theft.

In reply to a question about the lodgement system, Mr Walsh said that a new card system was introduced overnight due to Covid. Initially, lodgements went into a general pool. As they were not linked to specific agents, they could not do a deep dive into the systems to investigate what had happened with the missing lodgement. Rob Twomey later discovered that the missing money was in fact a card payment rather than a lodgement. The Complainant had resigned by then.

Mr Walsh said that the audit conducted in August was triggered by a customer contacting the office to say she wanted brochures, as she understood that the company had stopped calling due to Covid. It was established that the Complainant was not calling to certain customers. When asked, the Complainant said that was no point calling to customers on Thursdays, so he did not call from on those days.

7. Hugh O’Leary – Transport Manager

Mr O’Leary said that the company policy is that any employees who overnight gets a van, while daily reps get a car.

Mr O’Leary outlined his interactions with the Complainant, when his van broke down in Blarney, and he provided him with a replacement van. The Complainant “effed” and “blinded” him out of it for about twenty minutes. He accepted that he responded in a like fashion, but denied threatening to physically assault him and was not aware of any complaint made to An Garda Siochana.

8. Rob Reardon - Chief Operations Officer

After receiving the solicitor letter in February 2020, Mr Reardon contacted the Complainant, who was on sick leave at the time, to see if they could resolve matters informally. They met for lunch in Killeagh. The Complainant was of the view that Robert Twomey and Sean McCarthy, both hated him. He was agreeable to resolving matters informally. They did not discuss the specific details of his complaints, instead the focus was on resolving issues.

Mr Reardon set out a plan for resolving issues with Hugh O’Leary, Robert Twomey and Sean McCarthy to the Complainant and agreed that he would change line managers to Liam Walsh. He sent a response to the solicitor's letter and received no reply to that correspondence.

In October 2020, he received another letter from the Complainant’s solicitor and replied to say that the Complainant had not been accused of anything. Mr Reardon was not involved in investigating the missing money lodgement.

Under cross examination, Mr Reardon agreed that the Complainant had requested a formal investigation into his complaints, but had then agreed to try resolve matters informally. The Complainant did not mention anything about making a complaint to An Garda Siochana.

In his view, asking the Complainant at the meeting about whether his role suited him physically or mentally was an appropriate question to ask, as the job did not suit some people.

9. Sean McCarthy – Sales Manager

The company is a relationship-based business, dealing with 30,000 customers credit needs. As Sales Manager, he has forty-nine representatives, fifteen agents, and fourteen support staff reporting to him via five area managers.

Mr McCarthy’s evidence was that he never had a cross word with the Complainant. He did not hate him, as asserted by the Complainant in his evidence. He was aware of certain issues and that the Complainant wanted a change of line manager. He was aware that the Complainant was upset about using a van instead of a car. He was also aware about the incident with Hugh O’Leary. He told him to stop listening to gossip and focus on his performance.

In February 2020, he passed the solicitor’s letter to Rob Reardon to progress, and he was aware that the Complainant had later sent Rob Reardon a bottle of whiskey.

On 5 August 2020, he and Liam Walsh spoke with the Complainant when he returned to work about the need for clear communications when absent from work. That matter was resolved. The lodgement issue came up at the end of the meeting.

Mr McCarthy conducted the investigation into the missing lodgement and other issues. The Complainant was suspended on 10 September 2020 because he refused to come to a meeting to discuss those matters and then started submitting medical certs.

The Complainant attended an investigation meeting on 12 October 2020 at which he said that he did not have the money, as he had given it another employee (K) a few weeks before. In his view, the answer was unsatisfactory as they were pretty sure that (K) did not have the money.

Thereafter, the Complainant submitted weekly certificates for a heart issue. They were in contact by email. There was a change in the tone of the emails in February 2021 when the Complainant queried if he was still an employee and whether the company was still accusing him of stealing. He felt the Complainant was engaging in a knee jerk reaction.

He asked the Complainant to reconsider his decision to resign after he submitted a letter of resignation on 15 April 2021 and advised him that he was on sick leave, the bullying matters had been dealt with, and he needed to move forward. The Complainant replied to say that he had given the money to (K) and the whole business had put him in a bad way. Mr McCarthy explained that his role in the lodgement matter was limited to the investigation. Had the Complainant engaged earlier, the matter could have resolved.

He accepted the Complainant’s resignation on 16 April 2021. He later provided him with reference.

Under cross examination, Mr McCarthy agreed that he promoted the Complainant to a sales rep position and that he was never subject to any disciplinary sanctions. He said that he agreed to change the Complainant’s reporting line, as he wanted to give him a fresh start.

When asked why he told the Complainant to stop listening to gossip and focus on his job, Mr McCarthy said most of the Complainant’s issues seemed to relate to what others received.

Mr McCarthy rejected the assertion that the Complainant was not aware of the grievance procedure. He said that the Complainant was issued with a contract of employment and multiple handbooks. He had never made a formal complaint about a threatened assault or about the pornography matter. The Complainant never requested an investigation under the bullying and harassment policy. The Complainant had agreed to deal with his workplace complaints informally.

10. The Law

Section 1(b) of the Act defines a constructive dismissal for the purposes of the Act as follows: -

“(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”.

Section 6(1) of the Act states:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

11. Deliberation

The Act places a high burden on a Complainant in a constructive dismissal case. To succeed in a claim of constructive dismissal, the Complainant must show that his decision to resign in April 2021 resulted from either a repudiatory breach of his contract of employment or such unreasonable behaviour by the Respondent that he was justified in believing that he could not continue any longer in that employment. Furthermore, the Complainant is required to allow an employer an opportunity to rectify any workplace problems before resigning.

In this case, the Complainant contends that the Respondent breached his contractual rights by failing to address a litany of complaints made by him which constituted a breach of his contract of employment such that he was entitled to claim constructive dismissal. He further contends he was subject to persistent bullying, harassment and threats of physical violence which culminated in an incident where he was accused of misappropriating funds, despite evidence to the contrary, such that he was left with no alternative but to consider himself constructively dismissed.

The question for the Court to assess is whether the Complainant was entitled to terminate his employment because of the actions of the Respondent in this case.

The Court heard extensive evidence from the Complainant and five other witnesses which painted a picture of several challenging and testing relationships. In February 2020, when out on sick leave, the Complainant instructed a solicitor who in a lengthy letter set out several issues and lodged a formal grievance on his behalf.

While the Complainant contends that nothing really changed after the grievance was lodged, that assertion was not supported by his own evidence. He accepted that matters raised in his formal grievance were resolved at that time informally by agreement between the parties. The Complainant changed reporting lines to another manager, and, by his own evidence, his grievance issues were resolved before he returned to work, and everyone had agreed to move on.

Relations deteriorated a few months later. The Court heard that issues arose around (i) the Complainant’s alleged failure to follow absence procedures when absent from work, (ii) a misunderstanding about his health status in July when he phoned his manager to say that he had a migraine, (iii) a missing lodgement and (iv) an audit identified that the Complainant was not calling to certain customers.

Central to the Complainant’s sense of grievance was the missing lodgement. The Complainant felt wrongly blamed for the missing money as, in his view, he had adequately explained to management that he had given it to another (named) employee, as she needed money for an emergency loan to a customer. He felt that he was being set up and that his good name was under threat.

The Complainant refused to cooperate with the investigation process and as a result was suspended with pay on 10 September 2020 for refusing to attend an investigation meeting. The suspension was lifted on 18 September 2020, when he was certified as medically unfit to attend work.

In the Court’s view, the Respondent’s action in suspending the Complainant pending investigation was not unreasonable in circumstances where the Complainant had refused to participate in an investigation and was forewarned that disobeying an instruction to attend an investigation meeting could lead to such action.

The Complainant attend an investigation meeting on 12 October 2020 and was subsequently issued with an invitation to attend a disciplinary meeting.

By letter on 16 October 2020, the Complainant’s solicitor accused the Respondent of engaging in bullying and harassment by accusing the Complainant of stealing the missing lodgement, to which the Respondent replied that the Complainant had not been accused of anything and that he would be given an opportunity to put forward his position regarding the matters raised when he had recovered sufficiently from his sick leave.  The matter was put on hold while the Complainant was on sick leave.

The Complainant emailed Sean McCarthy in February 2023 to enquire if he was still accused of stealing €1200. In further emails the Complainant repeated that he had given the money to another (named) employee and would not attend “a kangaroo court,” as he was being set up. Mr McCarthy replied to say that he would have to attend the disciplinary process when he returned to work and in a subsequent email stated:- “for the record Glenn there never is and never was an allegation of theft, these are your words.”

On 14 April, the Complainant submitted his resignation. The Respondent queried his decision, and the Complainant confirmed that he was sure that he wanted to resign. The Complainant reiterated his assertions that he gave the missing money to another employee and said that he wanted that fact to be proved.

The question the Court must consider is whether the reasons for the Complainant’s resignation are sufficient to ground his complaint of constructive unfair dismissal.

It is clear from the Complainant’s testimony that he was frustrated and angry about the sequence of events. His felt that his good name was under threat. Despite communications from the Respondent to the contrary, the Complainant clearly believed that he was accused of theft. While the Complainant may have genuinely held that belief, in the view of the Court, his refusal to cooperate with the investigation and disciplinary process was unreasonable and his decision to resign when he did was premature. Had the Complainant fully engaged in the investigation process into the missing lodgement, that mystery of the missing lodgement may well have been cleared up at a much earlier stage. Unfortunately for all concerned that matter was not resolved before the Complainant resigned his employment. For the record, it is important to reiterate that the Complainant was never accused of theft.  The missing lodgement was discovered some months after the Complainant resigned.

The Court has carefully evaluated the evidence adduced during the hearing and has taken full account of the written submissions and legal arguments made by the parties.

On these facts as presented, the Court finds that the actions of the Respondent were not unreasonable and the actions of the Complainant, by resigning when he did, were premature.

The Court cannot find that the actions of the Respondent amount to a repudiation of the Complainant’s contract, or behaviour that was so unreasonable as to warrant his resignation.

Having regard to the facts of this case and the high bar set by the authorities in constructive dismissal cases, the Court finds that the Respondent did not repudiate the Complainant contract of employment or behave in such an unreasonable manner such as to warrant the Complainant’s resignation in April 2021.

Accordingly, the Court finds that the complaint is not well founded.

Decision

For the reasons set out above, the Court finds that the Complaint is not well founded.

The decision of the Adjudication Officer is set aside.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
15 AUGUST 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Mr Aidan Ralph, Court Secretary.