ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050779

Parties:

Complaint:

Date of Adjudication Hearing:  09/04/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 8 of the UnfairDismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings. The Complainant and the Group HR Manager gave evidence by affirmation.

Background:

The Complainant contends that she was unfairly dismissed by way of constructive dismissal.

Summary of Complainant’s Case:

The following is a summary of what the Complainant stated in written format on her complaint form and by oral evidence.

The Complainant was employed by the Respondent as Retail Manager of an outlet in the Midlands.  She described the difficulties she encountered in the later period of her employment with Area Manager (MF), his son (DF who was Assistant Manager) and Site Manager (CM).  She believed she was being managed out of her employment by MF and CM due to the conflict of interest she expressed.  This conflict was reported to CM on 26 June 2023 and she was told to ‘get over it’.  She was told on the same day by CM that he was surprised that she had passed her review with the owner of the franchise (M).     When she stated that she had a problem with DF sharing information about her that could be a potential conflict of interest and could adversely affect her performance review outcome, she was told that DF was a key member of the company and that she needed to find a way to build a relationship with him.  She particularly was unhappy when the Site Manager proposed to make DF her Assistant Manager without any internal competition and she stated that this was unfair to existing staff.  In July 2023 she had reason to speak with CM regarding DF’s behaviour in that when the staff were getting ready for a rush situation, DF was ‘upstairs watching the match’.      

She described a few other encounters with CM in which she alleged he spoke harshly to her.          In July 2023, she told CM about a problem with water flow in the men’s urinal and he spoke harshly to her when she misunderstood his reply.  In August 2023 there was another incident where she alleged CM accused her of leaving early but she had permission to do so and CM accused her of not carrying out work while looking after a kitten abandoned in or around/near the shop.  The Complainant introduced information regarding an employee (S) who was subjected to a disciplinary process in July 2023 in relation to taking some bubble wrap and been accused of taking milk from a Driver.   Among the issues she had with this, was that she believed the interview notes were inaccurate and did not cover the issues in the meeting.                                In September 2023 the Complainant had an issue regarding extra hours worked.  On 13th September there was a recruitment day and DF was put on the interviews.  The Complainant said that putting an Assistant Manager on the interviews while she was the Store Manager was disrespectful.  In December 2023 there was an issue regarding the carrying out of a stocktake.  At a site meeting with the Franchise owner CM humiliated the Complainant and referred to the disgraceful situation re missing stock.  The Complainant explained that it was not missing stock but a miscounting of stock.  On 14th December CM called the Complainant and DF into the office and effectively told them that DF would take the lead on the stocktake and that was the decision of the owner not his.  This was the moment when she came to the belief that they were trying to get rid of her.  At a meeting on 20th December 2023, she believed she was set up as named people were asked for a like for like statistic for sales for a Santa event and she was not asked before the meeting to prepare this information.  Despite having been assured that there would be no investigation into the stocktake issue, there was an investigation meeting on 22nd December and the Site Manager CM tried to bring up another issue regarding the staff Christmas party.  The Complainant left and went on sick leave until she resigned from her employment.

The Complainant was cross examined on her evidence by the legal representative of the Respondent.  She stated that she was aware of the Employee Handbook and the grievance procedure.  She stated that she did not utilise the procedure as she did not trust HR.  She did express her difficulties about DF with CM however, because DF was MF’s son no solution was possible.  She had to prioritise her mental health and had to resign.  She received a job offer on 22 January 2024 and started in a new job on 6 February 2024.

Summary of Respondent’s Case:

The Group HR Manager Ms G gave evidence on affirmation.  She stated that she received the Complainant’s resignation letter on 22 January 2024.  The letter included a lot of issues which should have been raised and discussed prior to the resignation.  Ms G emailed the Complainant and asked her to please reconsider her resignation and submit a grievance.   The Complainant responded declining and stating that people in the organisation had undue influence.  Ms G emailed the Complainant again and urged her to consider lodging a grievance and assured her that no adverse action would be taken.  The Complainant responded in the negative stating that after careful consideration she decided not to stay in the employment.

Findings and Conclusions:

I note the problems and discordant and difficult relationship the Complainant had regarding her management and colleagues.  Among the many instances she outlined in a detailed account in her complaint form, she had grievances about the preferential treatment she perceived that was given to the Assistant Manager.  I note that she was aware of the grievance procedure in the employment and she professed not to have trust or confidence in pursuing a grievance. 

The applicable law

The definition of constructive dismissal as provided for in the Unfair Dismissals Act 1977 (as amended) is:

“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”.

In a claim of constructive dismissal, the onus of proof rests with the Complainant to prove that the conduct of the employer was so unreasonable that that the employee cannot fairly be expected to put up with it any longer, and the employee is justified in leaving.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment.  In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

Where grievance procedures exist they should be followed.  In Conway v Ulster Bank Ltd the Employment Appeals Tribunal  considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.   At the very least an employee should communicate his or her grievance before resigning.

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.

In this instant case, the Complainant, as Store Manager was aware of the grievance procedures as contained in the Employee Handbook and which formed part of her contract.

I note the Group HR Manager made a number of efforts to have the Complainant reconsider her resignation and lodge a grievance.  The fact that the Complainant did not is fatal to her case.

I do not uphold her complaint that she was unfairly dismissed.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Based on the findings and reasons outlined, I have decided that the Complainant’s complaint of constructive dismissal is not well founded.

Dated: 20th June 2025.   

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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