Complainant

Respondent

Parties

Ms O’Brien

PAA Top Technical Ltd trading as Tekeir

Representatives

Self-represented

Karl Shirran BL, instructed by

Coughlan, White, and Partners Sols

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-00070372-001

28/03/2025

The complainant claims that she was constructively dismissed by the respondent company. She worked with the respondent from 2021 until she resigned on 28th March 2025. The complainant worked 20 hours per week. Her gross weekly earnings were €300.

Summary of Ms O’Brien’s Evidence

Ms O’Brien, the complainant, said she was called to a meeting on the 7th March 2025 with the CEO. She said she was unaware of the reason for the meeting and was not informed she could bring a witness. At the meeting she was told that she was being put on lay-off. She said the CEO told her at the meeting that she was on two-weeks’ notice of lay off and she was not required to work over the two weeks.

She had worked nine hours on the Friday and did not work the Saturday or Sunday and was paid full wages for the first week of notice. On the second week, she received a message from her manager to attend work. She said this was not in line with what she was told earlier by the CEO that she would not have to work the two weeks. She tried to contact the CEO and was told to direct everything to the Finance/HR Manager.

She said that as she was being lied to by her employer, and that this eroded her trust in management as she did not know what would happen next. She sent in a resignation letter on 28th March 2025.  

She was then asked by the manager whether she really wanted to resign. She confirmed her resignation in writing on 31st March 2025.

She questioned the basis for layoffs, particularly as the company still maintained sponsorships and other spending. She said when there were previous layoffs in 2023, these were not handled correctly as there was inadequate notice given.

Under cross-examination by the respondent representative, she was asked whether she had raised an oral or written grievance prior to resigning. She replied that there were no proper internal human resources contact person, and she had not been given a contract or handbook.

She was asked about a text message on 10th March 2025 from the CEO which stated that she had to work the two-weeks’ notice prior to lay off. She replied that she took from the early meeting that she did not have to attend.  

On mitigating her loss, she was asked whether she sought further employment immediately. She replied that she did not as she was sitting exams and found alternative employment on 21st May 2025.

She was asked about the emails of 18th & 31st March 2025 from her manager warning her to return to work as this could affect her right to a redundancy payment. She replied that she was under so much stress that she decided it was not worth staying on and she resigned.

Summary of Closing Submission

The complainant submitted that she was unaware of the grievance procedure and had not been issued with a contract or handbook. She trusted what the CEO said to her initially that she did not have to work the notice period prior to lay off. She said that she was then referred to the Finance/HR Manager and was unable to contact the CEO. She said she resigned as she did not want to be lied to again and there was an erosion of trust with management.  

The respondent representative summarised their written submission and referred to relevant case law. The representative submitted that the complainant had not met the “contract test” or “reasonableness test” on constructive dismissal. It was submitted that the complainant did not notify the respondent orally or in writing of her grievance. The grievance was only outlined to the WRC after she had resigned.

It was accepted that there may have been some ambiguity on work attendance due to the meeting with the CEO on the 7th of March 2025.  This was soon clarified by the CEO in a text message of 10th March 2025 stating that the complainant was required to work the notice period prior to lay off.

Summary of Mr Walsh’s Evidence

Mr Walsh said he was the CEO and that he did not have much interaction with the complainant. As there was a requirement to lay-off staff in March 2025, he met with the complainant as the Finance/HR Manager was on leave. He said that the complainant and other staff did not appeal the decision of lay-off. He accepted the complainant’s version of the meeting on 7th March 2025 that he said she did not have to work the notice period. However, he said he then clarified by text message on 10th March 2025 that she did have to work, after having a discussion with the Finance/HR Manager. He said the layoffs were selected by senior management based on a list.

Under cross-examination he was asked why he proceeded with the meeting when the Finance/HR Manager was on leave. He replied that he had a list of staff from senior management, and he wanted to get on with informing staff of the layoffs.

He clarified that although three staff were on lay-off that the other two staff ultimately resigned.

Summary of Ms Fairbrother’s Evidence

Ms Fairbrother said she had been working for the company for four years. She described her role as Finance/Human Resources Manager although the company had engaged a HR Consultant from 2023. She said that contracts issued to staff although she did accept Ms O’Brien had not been issued with a contract. She said the complainant worked part-time at weekends prior to her resignation.

She said if issues arose with contracts or entitlements that staff raised these issues with her. She said that she emailed the complainant on 18th March 2025 as she wanted to clarify matters on working the second week of the layoff notice period. She also wanted to inform the complainant that she may be entitled to a redundancy payment but only if she remained in employment.

She said that when the resignation was received, she emailed the complainant on 31st March 2025 to confirm the resignation as it had implications for a possible redundancy payment. She said that the complainant confirmed her resignation by email on 31st March 2025.

Under cross-examination, she was asked about the distribution of contracts and handbook. She replied that she had been working on these with the HR Consultant.

Summary of Ms Grehan’s Evidence

Ms Grehan said that she was engaged as HR Support since March 2023 to ensure compliance with contracts and employment rights within the company.

She said that the grievance procedure allows complaints to be referred to the appropriate manager. She said that staff handbooks are not always distributed and are continuously changing so they are sometimes held on a shared drive.

Summary of Closing Submission

The respondent representative submitted that there was a higher bar to prove constructive dismissal, and that the complainant had failed to substantiate her claim. He said the complainant did not raise a grievance before her resignation. There were no oral or written representations detailing her complaints to management and it was only after her resignation that she submitted these to the WRC.

He submitted that during the notice period before layoff, there is no entitlement not to work. Mr Walsh, CEO, had given wrong information at the meeting on 7th March 20225 although he had quickly clarified the complainant’s requirement to attend work by text message on 10th March 2025.

He submitted that emails from the respondent to the complainant were intended to be helpful to clarify her rights of a possible redundancy payment.

The Law

The definition of a constructive dismissal under the Act is:

 “dismissal”, in relation to an employee, means—

(a) -

(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,…

The established test on constructive dismissal is the ‘contract test’ and/or the ‘reasonableness test’.

The contract test concerns whether the employment contract between the parties has been honoured and, if not, whether a breach was so serious that it frustrated the relationship between the parties beyond repair.

The reasonableness test allows for an objective assessment of the employer’s behaviour and to a lesser extent, the employee’s behaviour.

In Western Excavating Ltd v Sharp [1978] IRLR 332, Lord Denning described the test as asking whether the employer ‘conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, and if so, the employee is justified in leaving.’

The respondent representative relies on the test in Berber v Dunnes Stores Limited [2009] IESC 10 as follows-

a, The test is objective.

b, The conduct of both employer and employee be considered.

c, The conduct as a whole and accumulative effect must be looked at.

d, The conduct of the employer 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 such that the employee cannot be expected to put up with it.

Berber also re-affirmed the implied term in all employment contracts 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.

It is common case that there is higher threshold to prove a constructive dismissal, as there is a requirement to show the contract was breached and/or that the employer acted so unreasonably that the only option was to resign.

Applying the Test to the Facts of this Case

Contract Test

The complainant outlined that she did not receive an employment contract. This was accepted by the respondent although it was submitted that this did not disadvantage the complainant as her terms of employment were honoured. Although there was no formal contract, it is common case that an implied contract existed between the parties. The reasons put forward for the resignation were not specifically related to a breach of contract per se, as the evidence presented demonstrated that both parties adhered to the contractual terms. The evidence on the previous lay-offs in 2003 and the lack of notice to staff was the only possible breach of contract. I am satisfied that objectively this issue could not have been significant enough to be relied upon by the complainant for her resignation in March 2025.

An implied contract also includes an implied contractual duty of mutual trust. From the contemporaneous documents exchanged between the parties around the time of resignation, I am satisfied that the respondent has not breached this duty.

For the reasons outlined above, I am satisfied that the respondent did not breach the implied contract.

Reasonableness Test

The main testimony of the complainant was that her employer lied to her and that this eroded her trust in management. This arose when she was informed not to work two weeks prior to lay off and then a reversal of this when she was required to work the second week. It is noted from the documentary evidence that management quickly clarified matters within 3 days by sending a text message. Although it is understandable that the complainant was dissatisfied with this reversal, when this type of mistake arises in a workplace, the focus is on the remedially steps and the timing of these. In this instance, the complainant was misled for three days, and the mistake seemed to be a genuine error which was corrected very quickly.

As outlined, I am satisfied the respondent did not act in an unreasonable manner. There was insufficient evidence of behaviour that would have given the complainant grounds to resign with immediate effect.

Grievance Procedure

Prior to resignation, the onus is on the complainant to use the grievance procedure to put management on notice of the issues and to allow for possible resolution. Although it was accepted that the complainant had no contract or staff handbook, the complainant did not document her specific complaints other than to say in her resignation letter that ‘Due to recent events & incidents ………’ These were later expanded on to the WRC although crucially not to her employer prior to resigning.

The complainant had an earlier opportunity to expand on or clarify her grievances when she was requested in writing by the Finance/HR Manager whether she wanted to proceed with her resignation. The complainant did not put management on notice of her complaints and consequently there was no opportunity to attempt to resolve these.

At the time of resignation, there was the issue of working the second week of notice along with the layoff issue itself. From the testimony at the hearing, it was unclear which of these issues or whether both culminated in the decision to resign. As per Berber, the conduct of the employer must be judged objectively, reasonably and sensibly to determine if the employee cannot be expected to put up with it. I am not satisfied that the actions of the employer warranted the complainant to immediately resign or that circumstances existed which meant that there was no option but to resign. Notwithstanding this, the respondent cannot be held responsible for a resignation when they were not on notice of the particular reasons for same.

For the reasons outlined, I decide that the complainant was not constructively dismissed.

I decide that the complainant was not unfairly dismissed.

Constructive Dismissal