Complainant

Respondent

Anonymised Parties

A Team Leader

A Technology Company

Representatives

  Self

Niamh McGowan BL instructed by

Michael Doyle of A & L Goodbody Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00064208-001

20/06/2024

The oath was administered to the Complainant and he gave evidence on his own behalf. He was cross examined by the Respondent and no other parties gave evidence at the hearing. The parties agreed the following facts at the outset: that the Complainant commenced employment with the Respondent on 24th February 2020 and ceased employment on 26th April 2024.

Two preliminary applications were made at the hearing:

1.      The Complainant made an application to exclude the Respondent’s submissions on the basis that they were not received at least 15 days before the hearing, in accordance with WRC guidance and procedure. The Respondent opposed the application. The Adjudication Officer stated that the 15 day guideline is not a statutory requirement and that the Respondent would suffer prejudice if the submissions were excluded, whereas any prejudice that the Complainant may potentially suffer as a result of the late receipt of submissions could be cured by affording the Complainant more time to consider them. The Complainant was invited to make an application for an adjournment, but declined to do so.

2.      The second issue was a preliminary application made by the Respondent to exclude the admission of recorded calls that the Complainant had made of conversations with his manager. The Adjudication Officer proposed that the Complainant would give his evidence, which could include an account of these conversations, and if it became relevant then the admission of the recordings could be considered at a later time. Over the course of the hearing, it did not prove necessary to admit the recordings into evidence.

As noted above, the Complainant also made a post-hearing application for this decision to be anonymised on the grounds that he disclosed personal medical information relating to his family members. The Respondent consented to that application and the parties are therefore not named in the publicly available copy of this decision.

The Complainant’s complaint is that he was constructively dismissed by the Respondent. His evidence in respect of this is set out below.

Evidence of the Complainant

The Complainant outlined his employment history with the Respondent. He spoke about the working environment and a restructure that had recently taken place. His direct line manager went on long term sick leave in mid November 2023 and so he began reporting to her manager (referred to throughout this decision as TY) at that time.

The Complainant’s claim primarily centres on a meeting which took place with TY on 27th November 2023 and TYs subsequent actions. The Complainant was seeking clarity on his role and to understand a hiring freeze that he had been notified about. He said that TY turned things around on him and made several key points. This included that he was unhappy with the Complainant; considered him unqualified for the role and told him that he should look for work elsewhere as he was going to build the team around another staff member (which he subsequently did). TY said that “I want my staff to start conversations with the words ‘in my experience’” and the Complainant could not do that. The Complainant asked if his position was recoverable and was told that there would be a restructure and it would depend on whether another region wanted him.

The Complainant was very anxious and panicked after this meeting. He sought a meeting with HR and says that he was unaware of any grievance procedures at this time.

A meeting took place with HR on 29th November 2023. The Complainant understood that by bringing his concerns to the attention of HR at this time, that he was raising a grievance. He said that the person he met with was kind, but no action was taken. A suggestion was put to him that he should travel to another country to meet with TY when he was there for another meeting and that perhaps some in person conversations may help things. The Complainant did not consider this practical, and in fact thought that TY would criticise him for unnecessary travel and attending a meeting that he was not invited to. He noted that no employee handbook was shared with him and no policies were referenced.

The Complainant needed to take some leave and was fearful while he was out that the other manager TY referred to would take the lead in his absence. This turned out to be a justified fear as that manager subsequently took over his project. The Complainant felt extremely stressed by these events and met with a counsellor as a result. He says that this counsellor advised him to use the grievance procedure. He was on medical leave for a period of time and when he returned on 5th January 2024 he sought a meeting with TY and HR in order to clarify his role. Following this, he says that he was removed from key projects and it became clear to him that the things TY had told him in the November meeting were materialising. He said that his role was being diminished and he was being sidelined. He therefore filed a formal grievance on 9th January 2024.

A further call took place between the Complainant, TY and HR on 12th January 2024. The Complainant says that he asked about his role and a potential restructure. He was told that there is no change at the moment and to just focus on his team. He says that TY repeated what he said on the call on 27th November and he felt that his performance rating had been pre-determined. The Complainant said that he very clearly asked “how can I be successful” and was told to just do his work. The Complainant said that trust was totally broken at this stage.

The Complainant also said that because HR had not taken any action up to this point, he did not have confidence in the grievance process and, further, that the process itself took too long to complete. He met with the investigator on 21st January 2024 and then ultimately gave his notice on 27th January 2024. He let the investigator know in advance that he planned to give his notice and, having thought about everything, decided to go ahead with it. The investigator expressed sympathy.

A meeting then took place with HR on 29th January and the Complainant says he was questioned about why he filed the grievance and asked what the “end goal” was. The Complainant felt as though he had done something wrong. He was asked if he would like to reconsider his resignation but he felt there had been no change to date so saw no reason to change his decision. He assumed that his three month notice period would be more than enough for the investigation to take place and so thought that he would have the outcome of that before he would have to actually leave his employment with the Respondent.

In terms of the investigation itself, he hoped that there would be a meaningful outcome and perhaps that a role would be created for him elsewhere; he said he hoped that there would be a place for him. However, in reality he thought that nothing would happen. He was on pre-approved parental leave in February and then went on garden leave for the remainder of his notice. He got an email from the investigator on 15th March to say there would be an update within the next week but no update was received. In mid-late March he had his performance review meeting and, as expected, he received below expectations. On 19th April he looked for an update on his grievance as it had been several months now since he had filed it. He got no response to this and says that he could have reconsidered his resignation if he had an outcome at this point.

His last day with the Respondent was 26th April 2024 and he commenced his new employment on 29th April 2024.

On 30th May 2024, the Complainant looked for another update on his grievance and received no response. On 14th June 2024 he received contact from a new investigator who was going to carry out the grievance process and on 25th July 2024 he finally got an outcome which confirmed multiple breaches. However, he said that the length of time that it took to complete this process was not reasonable.

In summary, the Complainant said that TY had told him to go and so he did. He said that TY acknowledged this in the interview he did as part of the grievance process. The Complainant referred to the interview notes from the investigation that took place. He highlighted in particular TY’s comments during his interview when he was asked about an intention to make the team more regional than global. When asked what was advised specifically TY said:

“The advice was you would be seen as reducing the scope for […] and [Complainant] without them being involved and we should wait because they could raise a constructive claim; we should wait for them to leave. That advice was given in December, I couldn't do anything. The whole team is 'crying', they need closure.”

 The Complainant said that he had been flagging this issue from when the meeting took place in November and there was no change or action taken. He questioned the effectiveness of a process that took over six months to complete, but noted that it did establish that there was bullying and so he had cause to resign from an intolerable work environment.

The Complainant says that his complete financial loss comes to €67,000 as a result of the Respondent’s actions. This is made up of an estimated loss in the value of shares of €43,000; consideration for loss of bonus and 3 months salary which he feels he should have gotten. His new salary has a base salary of €165,000 with no bonus or shares.

The Complainant referred to the case of Allen v. Independent Newspapers (Ireland) Ltd UD641/2008 which he says supports the position that an employee is not obligated to exhaust indefinitely delayed grievance procedures. He said that he could not be expected to endure a prolonged toxic environment. He also said that six of his nine complaints were upheld in the investigative process, which he said shows that his role was diminished and sidelined. He had raised this issue with HR in advance of raising the grievance and as no action was taken then he had no faith in a positive outcome from the investigation. He highlighted that there was excessive delay with the grievance process and that he suffered financial loss which he had done his best to minimise. He concluded by saying that he was justified in resigning in the circumstances.

Cross examination of the Complainant

The Complainant was cross examined in relation to his loss and attempts to mitigate loss. The Respondent put to the Complainant that the shares he referred to only materialise as income after they have been cashed and the Complainant accepted this. He also accepted that Revenue do not assess them as income. He accepted that while he could have sold all of the shares at the time of termination, he chose not to do so. The Respondent put to him that this was because he was hoping that they would appreciate and the reason was a financial decision. The Complainant said that his approach was to diversify. It was put to him that if the shares increase then he has suffered no loss and he accepted this.

The Respondent put it to the Complainant that his bonus was subject to performance reviews, was not a contractual term and was payable by the Respondent “at its sole and absolute discretion”. The Complainant said that he had a reasonable expectation of the bonus as he had always gotten it and had previously always exceeded expectations. The Respondent stated that it was subject to performance and the Complainant did not meet expectations on this occasion. The Complainant accepted this. The Respondent said that the Complainant had appealed that performance rating and was also unsuccessful in the appeal. The Complainant agreed that was the case. The Respondent put it to the Complainant that this could not be considered loss and the Complainant disagreed. The Respondent clarified that the Complainant’s new salary is €165,000 and he agreed. It was put to him that his base salary with the Respondent was €97,000 and as the shares were not guaranteed and the bonus was not a contractual term, that he could not show any loss in this claim. The Complainant disagreed.

The Complainant was cross examined on the details of the job offer received in relation to his new position. He gave evidence that he sought alternative employment immediately after the conversation where he was threatened with job loss and said that anyone in his position would have done this. He gave evidence that he received a letter of offer on 17th January; accepted the offer on 22nd January and signed a contract on the same date. He started in the new role on 29th April 2024. When asked if he received a signing on bonus, he stated that yes he received a signing on bonus of €10,000. The Respondent put it to him that he left for a position with a better guaranteed income. The Complainant did not accept this.

The Respondent referred to the Complainant’s evidence where he considered the meeting with HR on 29th November as the raising of a grievance. It was put to him that he was a manager and team leader and was well aware of the grievance process. The Complainant said that he was not familiar with this process and it was a counsellor who recommended it to him. He was asked if he had ever used the word “grievance” in the course of this conversation and he replied that he had not, as he did not know what a grievance was at that point. It was put to him that HR gave him informal advice at this point and he chose to ignore it. He replied that he did not think following this advice would be well received.

It was also put to him that there had not been any delay in addressing the issue, as he had been on leave of one form or another for the complete month of December and raised his grievance shortly after his return in January. The Complainant accepted he was not there in December but did not accept that there had been no delay. He expected action to be taken in relation to the disclosures that he made in the meeting of 29th November.

The Respondent asked the Complainant a number of questions in relation to the timing of his decision to resign, rather than seeing out the investigation process. It was put to him that the investigative process had only just begun and he had been repeatedly urged to reconsider his resignation and see the process through. In response, the Complainant said that he accepted a new role as a safety net and his response when asked to reconsider his resignation was that he would “see where things land”. When there was still no investigation outcome by the time his notice period was complete, he thought it was clear that he wouldn’t get clarity and also began to learn about the restructure. He said that if he had the outcome of the investigation at that stage, then he could have reconsidered his decision. It was put to the Complainant that he resigned because he got another job. The Complainant did not accept this.

The Complainant had given evidence that he did not have faith in the investigative process and that there had been a lack of action on the part of HR. It was put to him that he raised a grievance on 9th January, the investigator was appointed on the 10th January, contacted him on 16th January and met with him on 24th January. The Complainant said that his claim was that he was caused to resign by an intolerable working environment and delay, but the Respondent put it to him that there had been no delay at this point when he chose to resign, a mere three days after meeting with the investigator. The Complainant said that he thought it would have been complete in a month, at which point he could have re-considered his decision to resign.

The Respondent submits that, while there was a grievance, this was upheld when a fair and impartial investigation was carried out. It disputes the Complainant’s complaint in its entirety. The Respondent’s submissions are set out below.

The Respondent’s submissions

Under section 1 of the Unfair Dismissals Acts 1977 to 2015 (the UD Acts), dismissal is defined to include: "The termination by the employee of his contract of employment with his employer….in circumstances in which, because of the conduct of the employer, the employee was or wouldhave been entitled or it was or would have been reasonable for the employee to terminate the contract of employment…”

It is well established law that the burden rests with the Complainant in respect of a claim of constructive dismissal. In Byrne v Horwath Bastow Charleston Wealth Management LimitedUD67/2014, it was held that:

 "[t]he burden of proof on the employee is an onerous one, in that the Claimant must prove not only that his or her employer's behaviour was unreasonable, but also that the Claimant's response in resigning was reasonable ".

In Murphy v CLI Insurance Services LimitedUD 976/2014, the EAT noted that "in a constructive dismissal case the employee must show that because of the employer's conduct he was entitled to resign". Similarly, in Burns v ACM Community Development Society Limited2166/2011, the Tribunal held that the appellant "falls short of the high bar to prove constructive dismissal”.

More recently, this position has been affirmed by the Labour Court in Winthrop Engineering and Contracting Limited v Kieran DonagherUDD218, in which the Court emphasised that:

"[i]t has been well established in the case law that an Appellant in a constructive unfair dismissal case bears a high burden of proof in order to establish that it was reasonable for him or her to resign their employment and regard themselves as constructively dismissed in response to an objectively perceived deficiency in their employer’s dealings with them."

In order to succeed in the Complainant’s constructive dismissal claim therefore, the Complainant must demonstrate that (i) the Respondent's conduct was so unreasonable he had no option but to resign and (ii) the Complainant's resignation was reasonable in the circumstances. The Respondent submits that the Complainant has manifestly failed to discharge the requisite burden of proof required to substantiate a claim of constructive dismissal.

The Complainant does not advance an argument that the Respondent breached a fundamental term of his contract of employment such that he could justify claiming he had no option but to consider his employment at an end. The contract test has been summarised in Western Excavating (ECC) Ltd. v Sharp [1978] ICR 221 by Lord Denning MR as:

 “If the employer is 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.”

No such argument has been made out and nor could it credibly be made out on the facts.

The onus is therefore on the Complainant to establish that the Respondent conducted itself so unreasonably that he had no option but to resign. It is submitted that the Complainant cannot demonstrate such unreasonable conduct on the part of the Respondent.

On the Complainant’s own account, he only commenced reporting to TY after his former manager went on long term sick leave in mid-November 2023. In his grievance, he reports encounters with TY on 22nd  and 27th November 2023 with which he was dissatisfied, and occasions on 27th October 2023 and 1st December 2023 where he felt TY showed a lack of empathy. The Complainant thereafter was absent from work from 28th November 2023 returning on 5th January 2024. The Complainant submitted a ninepoint grievance on 9th January 2024. He was in work from 5th to 22nd January 2024 when he again went on sick leave before meeting with the Investigator on 24th January 2024, who had been in touch with him the week before. He resigned on 27th January 2024 (having notified the Investigator of his intention to do so on 25th January 2024) giving three months’ notice and immediately commenced approximately 2 months’ (or 57 days) paternity leave before taking approximately 1 months’ garden leave. There is therefore, a very short period in question, between the end of October and the start of December 2023, in which the Complainant is alleging the Respondent’s behaviour was so unreasonable as to justify his resigning his employment.

While there is no doubt the Complainant faced challenges in his role including a hiring freeze, long term colleague absences, a change in management with a different style of management, along with difficulties in his personal life, the workplace issues were matters which could have been resolved had the Complainant committed to working through the issues rather than making the decision to resign his employment without making any effort to do so. It is submitted that while some of the matters raised demonstrated unacceptable conduct by his manager (which were the subject of a comprehensive investigation undertaken by the Respondent) it was nowhere near the level or of such duration that it could be remotely considered reasonable for him to resign at the time and in the manner he did.

It was also noted that the Complainant resigned from his employment with the Respondent without fully availing of and exhausting the Respondent’s formal grievance procedures to resolve any work-related issues experienced in the time leading up to his resignation. It is respectfully submitted this is fatal to his claim of constructive unfair dismissal. It is well established that, other than in the most exceptional circumstances, an employee must give their employer an opportunity to address matters of concern to them by utilising their employer's grievance procedure prior to resigning if they are to stand any chance of succeeding in a constructive dismissal claim. In the case of Harrold v St Michael's House [2008] 19 ELR 1, the EAT quoted from Redmond on Dismissal Law in Ireland:

"… 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 employer's grievance procedures in an effort to resolve her grievance. This duty is an imperative in employee resignations”.

 As noted in Meenan's Employment Law:

"…it would be vital for the employee to avail of the grievance procedure and only after the exhaustion of such procedure, without a satisfactory outcome, can an employee resign and claim constructive dismissal."

In Byrne v Horwath Bastow Charleston Wealth Management Ltd (2014), the EAT noted that the Appellant had not exhausted all internal avenues before resigning and therefore the Appellant did not succeed with her claim of constructive dismissal. Similarly, in the case of Conduit Enterprises Limited v A Worker LCR 20855, the Labour Court acknowledged that the employee encountered difficulties in the workplace and sought assistance, however, when these difficulties escalated, he reacted by resigning without giving the employer an opportunity to respond. The Court held therefore that the resignation "was premature and did not meet the standards required to find that a constructive dismissal had taken place". Again, in the case of O'Gorman v Glen Tyre Company Limited UD 2314/2010, the EAT stated "it is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and that the employer be given an opportunity to resolve the issues".

In the case of Ryan Cannon and Kirk Accounting Services Limited v Violeta Kmeite UDD1910, the Labour Court, in finding that the claimant had not been constructively dismissed as she had not exhausted the employer's internal grievance procedures, noted that it was "not satisfied that there were factors present which might excuse the Appellant’s failure to either avail of an appeal, to raise a grievance, to opt for mediation or to seek implementation of the Investigator’s recommendations."

Similarly, in Airline Pilot and an Airline ADJ-00013391, the WRC remarked that "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."

In Cedarglade Limited v Tina Hliban UD/17/145, the Labour Court held that the employee who "…seeks to invoke the reasonableness test in furtherance of [a constructive dismissal] claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have" and must "demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the next step to resign."

In another more recent case, the Labour Court set out a comprehensive summation of this principle in Tech Mahindra Business Services Limited v John Curry UDD2124:

"A major consideration for the Court to take into account is to examine if all available internal procedures and remedies have been exhausted, prior to an Appellant leaving their employment. Indeed, in ‘McCormack’, it was noted that the high burden of proof included the need to demonstrate that all internal grievances had been exhausted. This is consistent with the case of Travers v. MBNA Ltd., UD 720/2006, in which it was noted that it was ‘incumbent for an Appellant to utilise all internal remedies’ and with the seminal case of Conway v. Ulster Bank UD475/1981 in which it was noted that the worker had not acted reasonably by resigning before having substantially utilised the relevant internal procedures."

Additionally, the Labour Court has recently outlined in St James’ Hospital v Deepa Philip UDD2311 that:

“An employee who seeks to rely on the reasonableness test in claiming to have been constructively dismissed must also act reasonably. That normally involves providing the employer with an opportunity to address whatever grievance they may have. A failure to invoke the employer’s grievance procedure can be fatal to a complaint of constructive unfair dismissal. In Conway v Ulster Bank Limited UDA474/1981, the Employment Appeals Tribunal set out that a Complainant must demonstrate that he or she has pursued the grievance through the procedures laid down in the employment before taking the step to resign.”

In recent years, the Labour Court has also commented that an employee's failure to see a process through to the end before resigning can adversely impact on their ability to demonstrate their own reasonableness in a claim for constructive dismissal. In Compass Catering Services Ireland Limited v Mickael Jego UDD2154, the Labour Court remarked that "it is difficult for the Court to overlook the fact that the Complainant resigned prior to the conclusion of his appeal under the Respondent’s Disciplinary Procedure."

Additionally, in Tracy McGann v Ers Genomics Limited ADJ-00043754, in a complaint of discriminatory constructive dismissal under the Employment Equality Acts, the complainant had issued a formal grievance on 3 January 2023, and, less than two weeks later, on 16 January 2023, the complainant notified the respondent of her resignation with immediate effect. The WRC observed:

“It thus follows that at that point in time, when the Grievance Letter was sent on the 3rd of January 2023, the Complainant had elected to pursue a formal grievance rather than rely on the facts as they stood, to justify a resignation without further action. The clear implication was that any resignation would be deferred until the grievance procedure had been completed. However, just thirteen days later, the Complainant’s position had changed such that by the 16th of January 2023, the Complainant did then assert that the Respondent had repudiated her contract such that she was then resigning”.

Following consideration of the specific circumstances, the WRC concluded: My conclusion is that the Complainant resigned without giving the Respondent a reasonable opportunity to address the Complainant’s grievances such that the Complainant did not behave reasonably in all of the circumstances and her constructive dismissal claim accordingly must fail.

Similarly, in A Clerical Officer v A Credit Union ADJ-00014637, an employee had claimed constructive dismissal for alleged bullying, unfair treatment and victimisation by a manager, raised a formal grievance in November 2017 but later resigned in December 2017, before the grievance process had fully concluded. The WRC held that the “standard of reasonableness required to substantiate a claim of constructive dismissal, has not been met where the Complainant failed to exhaust the procedures available to him before taking the step to resign, thereby not providing the Respondent with an opportunity to address his grievance in a proper manner”.

Additionally, in A Cleaner v A Contracting Cleaning Company ADJ-00008001, a cleaner claimed she had been constructively dismissed after she was subjected to bullying and harassment in the workplace. The WRC noted the complainant had raised a grievance at an informal level, however her issues were not resolved at this informal level, and the WRC was satisfied the complainant had failed to establish there were reasonable grounds for her to assume that her grievance would not have been dealt with appropriately by further utilising and fully exhausting the company’s internal procedures. The WRC held that “in the circumstances, I find that the Complainant took the decision to resign from her employment before she had fully exhausted or utilised all remedies available through the Respondent’s internal grievance procedures.”, and was “satisfied that the Respondent’s HR Department took immediate and appropriate action once it became aware of these allegations and I find that extensive efforts were made to try and dissuade the Complainant from resigning until the matter could be investigated.” The complainant had consequently failed to establish the respondent’s conduct was unreasonable or was such that she had no option but to resign her position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract.

It is common case that the Complainant did raise a complaint against his manager alleging unprofessional behaviour, disrespectful treatment and a lack of support under the Respondent’s Grievance Procedure. on or around 9th January 2024. On 16th January 2024, he was informed of the identity of the investigator appointed to conduct an investigation and the investigation commenced with a meeting with the Complainant on 24th January 2024.

However, on 27th January 2024 (some three days later), the Complainant chose to resign his employment at a time when the investigation into his allegations was ongoing (and, in truth, had only really just commenced).

The Complainant proceeded to take two months’ (or approximately 57 days) paid paternity leave, followed by a period of approximately 1 month’s garden leave, and did not leave his employment until 26th April 2024. During this time, and for a further period until the end of July 2024, the investigation continued (notwithstanding that it became necessary to sub in a new investigator mid-investigation), and the investigators interviewed relevant individuals, and continued to consider additional documentation and information supplied by the Complainant. A comprehensive investigation report was prepared upon conclusion of the investigation, a copy of which was shared with the Complainant on 25th July 2024.

It is notable that the substance of the Complainant’s allegations of the “unfair and biased treatment” referred to in the “timeline of events and specific incidents”, outlined in the WRC complaint form, were the subject of the comprehensive investigation carried out by the Respondent. Ultimately, this investigation concluded that six of the nine allegations raised by the Complainant were upheld.

It is submitted the above decisions of the WRC and the Labour Court are clear and consistent authority for the position that, in order to succeed in a complaint of constructive dismissal, an employee must (at the very minimum) first have fully exhausted all internal grievance procedures. In choosing to resign while the investigation into his complaints was ongoing, the Complainant plainly failed to do so. It is particularly noteworthy that at no point after tendering his resignation did the Complainant seek to retract it – for example, he did not seek to do so shortly before returning from paid paternity leave, notwithstanding that it had been made clear to the Complainant by HR, at the time he commenced paternity leave, that he should reconsider and contact HR if he wished to withdraw his resignation.

The fact of the matter is the Complainant resigned on 27th January 2024 without having fully utilised (and certainly not exhausted) the Respondent’s grievance procedures. In circumstances where the Complainant had commenced a grievance process and where he was due to take two months’ paternity leave while that process was ongoing there was no justification for him resigning.

Irrespective of his resignation, the Respondent conducted a full investigation process and prepared a comprehensive outcome report, upholding many of the allegations raised by the Complainant. This demonstrates the robustness of the grievance process undertaken by the Respondent and further demonstrates that the Complainant had no reason not to conclude the process before considering his position. In the event because his grievances were largely upheld, he demonstrably had no reason for resigning and should instead have afforded the Respondent the opportunity to resolve the issues complained of. Instead, the Complainant peremptorily resigned which was entirely unreasonable.

In the circumstances and having regard to the extensive case law cited above, it is respectfully submitted that the Complainant’s claim for constructive dismissal quite simply cannot succeed.

It is further submitted that the giving of three months' notice on resignation is entirely inconsistent with the premise that the Respondent’s conduct was so unreasonable that he could not be expected to tolerate it any further.

In Amanda Jones v Tigers Childcare ADJ-00046640 a claim of constructive dismissal due to ‘intolerable work environment’ was not upheld due to the failure to pass ‘contract’ and ‘reasonableness’ tests. The complainant did not exercise grievance procedures. The Adjudication Officer noted “the complainant worked out her notice period. In those circumstances, I find the complainant’s proposition that her position at work was so untenable that she had no option but to resign is implausible.”

In Philomena Clynch v J.R. Carson Limited T/A JR Labels (ADJ-00038053) a claim of constructive dismissal due to disagreements about retirement and workplace friction was held not to be well-founded. The Adjudication Officer noted “finally, I find the fact the Complainant worked her notice is counter intuitive to the proposition that the Complainant’s position at work was so untenable that she had no option but to resign. If the actions of the Respondent were so unreasonable that she had no option but to resign, it is implausible that the Complainant would work out her notice period.”

In Mark Lowry v JJ Fleming and Company Limited (ADJ-00036677) the claim of constructive dismissal due to alleged excessive workload, verbal abuse and broken promises did not succeed due to the complainant’s failure to satisfy the 'contract test' and 'reasonableness test'. The Adjudication Officer also noted “Upon further examination the Complainant confirmed he worked his full notice period and had a job arranged prior to leaving the Respondent. While working a notice period of itself is not detrimental to a claim for constructive dismissal in this case, it does appear at odds with the Complainant’s submission that he was under such harm to his health as a result of the workload and behaviour of the Respondent that he was willing to continue for an additional two weeks in the workplace”.

It is submitted that the Complainant cannot demonstrate that the Respondent’s conduct over the very short period complained of was so unreasonable as to justify him resigning his employment. If the Respondent’s conduct was so unreasonable (which is denied) the giving of three months’ notice by the Complainant was inconsistent with that position. Further and most fundamentally the Complainant’s claim must fail because he acted entirely unreasonably in resigning without allowing the grievance process to really get going (never mind be completed), which process ultimately substantiated six of his nine grievances.

Finally, the Respondent submits that the Complainant has suffered no loss.

As the Complainant is claiming constructive dismissal, the burden of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition in Section 1(1)(b) of the Act which provides that:

““dismissal”, in relation to an employee, 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.”

As the fact of dismissal is in dispute in this case, the onus of proof is on the Complainant to establish his claim on the balance of probabilities. It is well established that the burden of proof on a Complainant in a claim for constructive dismissal is high. I am mindful of the decision of the Employment Appeals Tribunal in McCormack -v- Dunnes Stores UD 1421/2008where it stated:

“In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment… The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The Complainant must therefore show that his resignation was not voluntary and that he had no option other than to terminate his employment.

There are two tests upon which a complainant may rely in constructive dismissal cases. The first is the ‘contract’ test where an employee argues that they are entitled to terminate their contract. The second is the ‘reasonableness’ test whereby a complainant can argue that the conduct of the employer was so unreasonable that they cannot fairly be expected to put up with it any longer.

The Complainant did not specifically identify which of the above two tests he was relying on, however it is clear from his submissions and evidence that the conduct of his manager is central to his claim that he was constructively dismissed.

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment. 

According to the Supreme Court in Berber -v- Dunnes Stores [2009] ELR 61: “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.” This is an objective test and there must be a consideration of the conduct of both the employer and the employee.

I do not think there can be any dispute that the conduct of TY as regards the Complainant on 27th November 2023 can be considered as anything other than unreasonable and I accept the Complainant’s evidence of this conversation in its entirety. Indeed, no witnesses were introduced by the Respondent to offer any evidence which would dispute the Complainant’s version of this call. Further, the Respondent’s own investigation upheld the majority of the Complainant’s grievances in this regard and TY admitted the statements complained of in his interview, albeit disputing the context. I accept that this behaviour had a substantial effect on the Complainant and that it is an entirely unacceptable way for a manager to behave.

However, I must address the Respondent’s position that the Complainant was obliged to exhaust internal procedures. There is a wealth of case law supporting the principle that an employee must give an employer an opportunity to rectify a problem before resigning. The seminal case of Conway v Ulster Bank Ltd [UD 474/1981] addressed this issue. It set out the principle that an employee must alert the employer to their situation so that they have an opportunity to address an issue. The Court in that case found that an employee must first have “substantially utilised the grievance procedure to attempt to remedy her complaints.” A complainant must therefore show that they had no option other than to resign and they acted reasonably by providing the employer with an opportunity to rectify the problem before resigning.

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated:

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

It is therefore generally accepted that employees who claim that they have been constructively dismissed must show that they have substantially utilised the grievance procedure before resigning from their employment. Whilst there are exceptions to this, such exceptions are extremely rare.

One such exception raised by the Complainant was in the case of Allen v. Independent Newspapers (Ireland) Ltd [UD641/2008]. However, in that case no investigative process had taken place at all, despite the Complainant having made complaints, both verbal and written, to five different people over the course of a three month period. I do not find that this case is comparable to the Complainant’s herein as a full investigative process was undertaken in this case following the raising of the grievance by the Complainant.

The timing of when this grievance was raised is relevant in this case. The Complainant asserts that his meeting with HR on 29th November 2023 should have been considered the raising of a grievance. However, there was no evidence offered to suggest that the Complainant asked for any action to be taken at this point, or that he gave any indication that he expected the Respondent to act on the information that he was providing. He was offered informal advice at this stage. He chose not to act on that advice and I do not infer anything from this decision, but what is clear to me is that he did not seek any formal process from the Respondent and did not ask for anything further to be done at this point. I am therefore satisfied that the Complainant first raised a grievance with the Respondent on 9th January 2024.

The Complainant was most understandably panicked and upset by the conversation which took place on 27th November 2023 and TY’s subsequent behaviour. However, he raised a grievance with the Respondent and very early in this process he was offered another role. He received a letter of offer on 17th January 2024 and he took some time to think about the impact of this before signing a  contract for the new position on 22nd January 2024. It has to be noted that this contract was signed two days before the Complainant first met with the investigator, on 24th January 2024. Despite being asked by the investigator to re-consider any decision to resign and await the outcome of the investigation, the Complainant said that “I have decided to resign and will process this by the end of day today”. The Complainant’s own notes, at page 27 of his submission to the WRC dated 25th February 2025, where he is describing the relevance of Exhibit AG, state that this evidence “reinforces that the Claimant’s decision to resign was well-considered and final”. The Complainant made the decision at this point in time to leave the Respondent in order to take up another position, rather than complete the grievance investigation process. By giving his resignation on 27th January 2024, he showed that he was not willing to await the outcome of the process. While he may have thought it would be concluded by the end of his notice period, he had nevertheless been clear that he was resigning on 27th January and I do not find it entirely credible that the Complainant would have withdrawn this in circumstances where he had signed a contract with another employer and received a signing bonus for doing so.

The Complainant clearly had a valid grievance, and he raised this with the Respondent. He therefore availed of an option, other than resignation, that was available to him on 9th January 2024. By his resignation on 27th January 2024, he showed that he was not willing to exhaust internal procedures prior to resignation. It was premature on the part of the Complainant to deny both himself and the Respondent an opportunity to fully investigate and consider the next steps, particularly in circumstances where the investigative process did largely uphold the Complainant’s grievance. Termination of a contract in such circumstances should have been the final step, however the Complainant opted to take up an alternative position in the meantime and before exhausting the grievance process.

The Respondent acted without delay in commencing the investigation and, while there was delay for unavoidable reasons mid-way through, it conducted a thorough investigation which found largely in the Complainant’s favour. I find that the Respondent did act reasonably in response to the raising of this grievance. Objectively speaking therefore, I am not satisfied that the Complainant has met the high burden of proof that the Respondent conducted itself so unreasonably that he was entitled to terminate his employment.

As a result of the Complainants resignation on 27th January 2024, before the Respondent had been afforded the opportunity to carry out a grievance investigation, it cannot objectively be concluded that the Respondent acted unreasonably. For that reason, I do not consider that the Complainant was constructively dismissed and, accordingly, I find that this complaint is not well founded.

As I have not found in favour of the Complainant in relation to his claim for constructive dismissal, I am not required to address the issue of any loss suffered.

I find that this complaint is not well founded.

Constructive Dismissal – exhaust internal procedures