UDD2534

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039180 (CA-00050541-002).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 5 April 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

Labour Court hearings took place on 17 September 2025.

The following is the Decision of the Court:-

DECISION:

1. Background to the Appeal: -

This is an appeal of a decision of an Adjudication Officer in relation to a complaint made by Jack Cuddy under the Unfair Dismissals Act 1977 (“The 1977 Acts”) that he was constructively dismissed by his former employer, Ballyfin Demesne Limited. The Adjudication Officer did not uphold his complaint.

The Court heard his appeal together with other linked appeals EDA2565 and HSD2516 on 17 September 2025.  During the hearing, Mr Cuddy withdrew his appeals of decisions made under the Terms of Employment Information Act 1994, the Protection of Employees (Part-time Work) Act 2001 and the Employment Equality Acts 1998 (in respect of allegations of discrimination under the gender, age and family status grounds).

The Court heard evidence from Mr Cuddy (the Complainant), and from Mr Peter White (former General Manager), Fiona Diffney (HR Manager) and Josephine Boles (external investigator). 

For ease of reference the parties are given the same designation as they had at first instance. Hence, Jack Cuddy is referred to as “the Complainant” and Ballyfin Demesne Limited is referred to as “the Respondent”.

2. Submission and evidence of the Complainant: -

The Complainant worked for the Respondent in a part-time capacity as a Food and Beverage Assistant from September 2019 to 29 May 2022.

The Complainant sought a meeting with the general manager on 12 November 2021 to discuss a pay increase and other work-related matters, including some concerns about health and safety standards. The general manager refused his request for a pay increase on the basis that he had to prioritise other employees with families and mortgages. He also made a distasteful remark about the Complainant’s own family circumstances. The Complainant subsequently learned that a female colleagues “Ms X”, who was employed in the same capacity was awarded a pay increase in August 2021. 

The hotel owner had previously advised staff to contact him personally with any concerns. He emailed the owner to express his concerns about the matters raised at the meeting of 12 November 2021 and subsequently instigated a formal grievance into those matters.

The HR manager conducted an investigation into his grievances. The investigation was biased. The HR Manager ‘brandished’ a health and safety report at him before he was given an opportunity to articulate his health and safety concerns. He was not given a fair opportunity to be heard during the investigation. The Complainant felt isolated and ostracised at work for raising his concerns. On one occasion he was scheduled for a lunch break on his own.

The Complainant agreed to move to the next stage of the grievance process which was conducted by an external consultant. Terms of Reference were agreed on 28 December 2021.  The investigator deviated from the terms of reference without the Complainant’s consent by suspending the investigation to explore a settlement agreement.

The Complainant was unavailable for work for a period after 22 December 2021, as he was concerned about putting his family members at risk of the Covid-19 virus. He later informed the Respondent that he was available to work the weekend of 19/20 February 2022 but was not rostered for duty over two consecutive weekends.

The Complainant felt ostracised and isolated on his return to work on 6 March 2022, because of the way that his health and safety concerns were addressed at a team meeting.

He was unable to attend work thereafter due to work related stress. He informed HR that he was feeling stressed, but no actions were taken to safeguard his mental health during the grievance process.  The Respondent acted unreasonably by failing to address his concerns. 

The investigation findings were disseminated on 28 April 2022. The Complainant resigned his employment prior to the implementation of recommendations arising for the report.

The Complainant submits that he had no option other than resign his employment when he did. He was challenged over raising health and safety concerns. He was denied a pay increase and career progression. The general manager made distasteful comments. He was isolated at work. He was not afforded a fair opportunity to be heard as the internal investigation was biased. The Respondent deviated from the agreed terms of reference and suspended the external investigation for a period without his consent. He was not rostered for duty. On his returned to work he was ostracised. The Respondent acknowledged the discrepancy in pay with a female colleague and agreed to backdate his pay but never did so. The Respondent failed to address his work-related stress and had breached their duty of care. The cumulative effect of the Respondent’s actions was that he had no option but to resign. The Respondent made no meaningful steps at reconciliation. He had lost all trust in the Respondent.

Under cross examination, the Complainant confirmed that each of his complaints had been the subject of an internal and external investigation. He confirmed that he resigned his position within 19 hours of the investigation report being issued to him, and before the Respondent had the opportunity to consider the findings or implement the recommendations made. The Complainant confirmed that he had agreed with the external investigator concluding the investigation process. He was happy with the report but had concerns about its implementation. He accepted that the Respondent did not know about those concerns when he resigned. He confirmed that he was asked to reconsider his resignation, but that he did not as he felt he could not return to his workplace. The Complainant confirmed he did not appeal the investigation findings.

3. Summary of Respondent’s Case: -

The Complainant allegation of constructive dismissal is denied. The Respondent refutes the Complainant’s assertions that the meeting with the general manager on 12 November 2021 constituted discrimination, penalisation, or harassment.

The complaint lodged a grievance in relation to that meeting which was fully investigated by the HR Manager. As soon as the Complainant alleged bias, the Respondent engaged an external consultant to conduct a fresh investigation. The external investigator proposed exploring a compromise agreement, which the Complainant refused. The investigation resumed with the Complainant's consent to the same investigator leading the process. The Complainant submitted that he had no issue with the external investigation process or the external investigator.

The Respondent denies that remarks made by the general manager in his interview on 23 February 2022 with the external investigator were demeaning to the Complainant. The general manager acknowledged a comment made about the Complainant’s family was unprofessional. It was meant in a lighthearted way, and he indicated his willingness to apologise to the Complainant.

The Complainant only attended work for one day (on 6 March 2022) between 21 December 2021 and his resignation in April 2022.

The allegation that the Respondent treated the Complainant less favourably than his coworkers or isolated on his work breaks is denied. He was not excluded from team meetings, as alleged. There is no evidence that co-workers avoided him or that he was ostracised for raising health and safety concerns. The Respondent did not suspend the Complainant without pay, as alleged.

The Respondent did not roster the Complainant for two weekends during February 2022 to allow the parties consider a settlement agreement. The Respondent was not on notice of work-related stress prior to the submission of a sick cert on 26 March 2022 which stated that he was suffering from ‘ear pain’ and ‘work related stress’, at which point he had informed the Respondent that he did not want to be rostered, and an external investigator had been assigned to assess his grievances.

The investigator provided her decision on 28 April 2022. In this decision, the external investigation recommended a number of action points and set out that if the Complainant “continues to feel unsettled within his working environment, he should discuss this with his line manager or HR Department. Internal or external mediation could also be a consideration. Should it come to it of course Jack can utilise the grievance process and the bullying and harassment policy and other policies that may be available to staff within Ballyfin.”

The Complainant resigned within 19 hours of receiving the external investigation report. He did not lodge an appeal or exhaust any other options provided to him. The Complainant did not give the Respondent an opportunity to review or act on any of the suggested recommendations before he resigned. The Respondent categorically denies that it made no meaningful attempts at reconciliation. The Complainant was asked to reconsider his resignation, but he insisted on resigning.

The Respondent was not guilty of conduct which breached the employment contract. There is no evidence to suggest that the Respondent demonstrated that it no longer intended to be bound by one or more of the essential terms of the contract. The Respondent investigated every complaint he made and invested time and resources into the same. It did everything possible to accommodate him. It is fundamentally unreasonable for the Complainant to criticise the Respondents actions. The Complainant has provided no evidence that the Respondent’s behaviour was such that it was reasonable for him to resign his employment and claim constructive dismissal.

Evidence of Peter White – General Manager

Mr White gave evidence of the meeting on 12 November 2021 when the Complainant requested a pay rise and raised health and safety concerns. The meeting lasted about an hour. He explained to the Complainant that he would receive an increase in January 2022, when the budgetary process concluded. The Complainant had siblings who had worked in the hotel and talked about that fact. He made a frivolous comment that it was a shame the Complainant was the last to work in the hotel, to which the Complainant took offence. He apologised for that comment. He denied saying that the Complainant could pursue opportunities elsewhere.

He accepted that another employee was awarded an out of cycle payment the previous August. Mr White said that he took the Complainant’s concerns seriously and escalated the matters raised to HR. Mr White was disappointed when the Complaint resigned as he thought there was a resolution to the matters he raised.

Evidence of Fiona Diffney HR Manager

Ms Diffney commenced employment with the Respondent in October 2021 and was responsible for conducting an investigation into the Complainant’s grievances after he emailed the hotel owners with his concerns.

Ms Diffney met with the Complainant on 18 November to discuss his grievances. His primary focus was on securing a pay increase as he felt that he should receive the same pay as another female employee. Pay awards in the company are not based on gender. The Complainant also raised other concerns relating to an alleged breach of data, comments made by the general manager at their meeting on 12 November and some health and safety matters.

Ms Diffney said that she did not brandish a health and safety report at the Complainant, as alleged.  She shared the findings of a report from the Health and Safety Authority from a few weeks previously that had found no issues. She enquired what outcome the Complainant wanted from the process and addressed those requests in her findings. She recommended that he receive (i) a pay increase, (ii) further training and (iii) that the general manager acknowledge the impact of his comments.  Ms Diffney stepped back when the Complainant accused her of bias, and the Respondent appointed an external investigator to conduct a second grievance investigation.

Ms Diffney was extremely disappointed when the Complainant resigned, as the company had invested a lot of resources into addressing his concerns. His resignation was a rash decision. He did not reply to her request to reconsider his resignation, which would have given the Respondent an opportunity to implement the recommendations of the external investigator.

In cross-examination, Ms Diffney said that she agreed not to roster the Complainant for a period in February 2022 when the external investigator proposed exploring settlement talks. He was rostered for duty as soon as she became aware that he was not interested in exploring a compromise agreement. She did not agree that the Complainant was isolated during break periods when he worked as the standard practice was to have a staggered overlap of breaks.  She was aware that the Complainant had an ear infection, but not of any work-related stress issues.

Evidence of Ms Jo Boles

Ms Boles was engaged to undertake an independent second grievance investigation. The investigation took some time to conduct. She met with the Complainant by phone on 24 January and 18 February 2022. She interviewed three other people as part of the investigation.  The Complainant had a lot of strong emotions about the issues he raised. He felt that trust had broken down, and she felt it would be remiss of her not to explore a settlement. He later confirmed that this was not what he wanted and agreed that Ms Boles should conclude the investigation.

Ms Boles set out seven recommendations in her outcome report, all of which supported the Complainant. She recommended that he receive a pay increase back dated to August 2021 and payment for shifts missed while the compromise agreement was explored. She also recommended more transparency around out of cycle pay reviews.

4. 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.”

5. Deliberations: -

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 Act places a high burden on a Complainant in a constructive dismissal case. In Berber v Dunnes Stores [2009] IESC 10, the Supreme Court held:

‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.
3. The conduct of the parties as a whole and the accumulative effect must be looked at.
4. 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 question for the Court to consider is whether the cumulative effect of the interactions between the employee and employer crossed a threshold so as to damage the relationship to such an extent that it was reasonable for the Complainant to resign.

On 12 November 2021 the Complainant sought a meeting with the General Manager, Peter White, to discuss a pay increase and other work-related matters. His request for a pay increase was refused. The Complainant subsequently emailed the owner of the hotel to express his concerns that the meeting had resulted in” defamatory remarks, breaches of sensitive data, and the dismissing cases of cases of negligence”. 

The matters raised with the General Manager on 12 November 2021 and with the hotel owner on 16 November 2021 were the subject of a comprehensive investigation by the recently appointed HR manager as part of a formal grievance process.  The Court finds no issue with the way the investigation was conducted by the HR manager.

The Complainant was unhappy with the outcome and alleged bias on the part of the HR Manager. The Respondent took his concerns seriously and engaged an External Consultant to conduct a fresh investigation into his complaints. Terms of reference were agreed on 28 December 2021.

The Complainant indicated that he was not available for work around this time, due to concerns about putting his family members at risk of the Covid-19 virus. He did not work in the period from 22 December 2021 to 6 March 2022, albeit he indicated to the Respondent that he was available to work weekend shifts from mid-February 2022. 

During this time, the external investigator Ms Boles engaged with the Complainant by telephone on 24 January 2022 and proposed exploring a compromise agreement, as one way of possible resolution. The investigation paused until 18 February 2022, when the Complainant made it clear that he did not want a settlement agreement, as he wanted the investigation to conclude and the findings report to be issued. Ms Boles progressed the investigation and interviewed five individuals, including the Complainant and the general manager.

Ms Boles issued her findings in April 2022 and found no evidence (i) that the Complainant was discriminated against on the grounds of his age or gender, (ii) that the Complainant was denied equal pay with a colleague based on his gender, (iii) breaches of sensitive data and (iv) that the hotel did not take his health and safety concerns seriously.  Ms Boles found that the general manager made an inappropriate throw away comment to the Complainant at the meeting on 12 November 2021, which he found offensive. She noted that the general manager had expressed his regret and explained that the did not intend to the upset the Complainant.

Ms Boles recommendations addressed the annual pay review process, the conduct of 1:1 meetings and need for clarity around roles and responsibilities.  She recommended that the Complainant receive back pay to August 2021 and be paid for any days he was available to work when a without prejudice agreement was considered. She further recommended that he engage with management if unsettled in his work environment and (iv) attend his GP and Occupational Health before returning to work given his prolonged absence.

It appears to the Court that the Complainant’s complaints were comprehensively investigated by Ms Boles.  She interviewed all relevant parties. Her findings appear to be reasonable and balanced in so far as they recognised that a need for further actions across a number of areas.  

The outcome was communicated to the Complainant by email on 28 Apil 2022. The Complainant submitted his resignation the following day citing constructive dismissal. On 3 May 2022, Ms Diffney subsequently wrote to the Complainant requesting that he reconsider his resignation and return to his role as a Food and Beverage Assistant.

On the facts as presented, the Respondent demonstrated meaningful engagement to address the Complainant’s concerns.

In the Court’s judgment, the Complainant’s decision to resign his employment 19 hours after receiving the External Investigator outcome report was premature. The Respondent requested that he reconsider his resignation was a reasonable approach.  The Complainant did not engage further with the Respondent. The Complainant confirmed to the Court that he had no issues with the external investigation process or the external investigator. He said he was happy with the contents of the report but his trust with the Respondent was broken, and he did not believe that the recommendations would be implemented. He accepted that when the Respondent requested that he reconsider his resignation he did not advise them of his concerns. He accepted that the Respondent had no knowledge what those concerns were when he resigned. 

An employee must demonstrate that they have pursued their grievance through any relevant procedures before taking the step to resign. Where an employee seeks to invoke the reasonableness test in furtherance of such a claim he must also act reasonably by providing the employer with an opportunity to address whatever workplace issues they may have. In this case, the Complainant accepts that the Respondent had no knowledge of any concerns he may have had about implementation of the recommendations contained within the External Investigators report. His actions in resigning within 24 hours of receiving the report, without engaging with the Respondent to give them an opportunity to address his concerns was not a reasonable course of action.

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’s contract of employment or behave in such an unreasonable manner such as to warrant the Complainant’s resignation. Accordingly, the Court finds that the complaint is not well founded.

6. Decision: -

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

The appeal fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
19 December 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Therese Hickey, Court Secretary.