Complainant

Respondent

Parties

Mr Eanna Donoghue

EBAY EUROPE SERVICES LIMITED

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Mr Mark Curran BL instructed by Ms Avril Daly Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065659-001

28/08/2024

This matter came before the Workplace Relations Commission dated 28/08/2024 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977 claiming constructive dismissal.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place 09/04/2025. 

The Complainant was employed initially as a Customer Experience – Seller Support and his job title prior to resignation was that of GCX Premium Service Teammate 2.   The Complainant commenced his employment with the Respondent on 22/05/2017 and he resigned from his employment on 05/03/2024.  The Complainant worked 38 hours per week for which he was paid €3,439.00 gross per month. 

The Respondent is a limited company with a registered office at the Atrium Building in Blanchardstown. 

The Complainant claims constructive dismissal.  The Respondent denies the Complainant’s complaint in its entirety.

The Respondent filed written and legal submissions with the WRC in advance of hearing.   The Complainant relied on the information provide in the statement accompanying his WRC complaint form. 

Post-hearing submissions were requested on the matter of mitigation and loss within express timelines which were provided and exchanged within said timelines.   

It was explained to the Complainant at the commencement of hearing that in a claim alleging constructive dismissal there are two sets of circumstances in which a resignation may be considered a constructive dismissal namely the “contract” test and the “reasonableness” test.  The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign. 

It was explained that it is now generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee.  All other options including grievance procedures must be explored. 

It was explained that the reasonableness test requires that the employee must satisfactorily demonstrate that the employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  The employee must show that his behaviour/action in resigning was reasonable in all the circumstances. 

As the Complainant terminated the contract of employment, he bears the consequent burden of proof imposed by the legislation.  Having regard to same, the Complainant presented his evidence prior to the Respondent opening their case.    

CA-00065659-001

Overview of written submission

The Complainant submitted his complaint on a manual complaint form and he provided a statement to accompany same by way of submissions in support of his claim from which the key points are extrapolated and summarised hereunder.  The Complainant’s statement refers to a significant number of former colleagues by name in his statement not all of whom are in attendance at hearing and those names are redacted accordingly. 

The Complainant submits he feels very aggrieved with how he was treated by certain managers in the Respondent leadership.  The Complainant submits he feels very strongly that he was forced out for doing his job to the best of his ability and for calling out issues with leadership after six impeccable years of work.  The Complainant submits he has been mis-treated by being denied progression opportunities and by the Respondent not taking his extra work on board.  The Complainant submits that he finds it hard to believe that the mental health issues he was experiencing were properly recorded or taken into account in the disciplinary process that forced him out.

The Complainant submits his line manager and other leaders at times behaved appallingly over six years.  The Complainant submits he was trying to improve agent and leadership behaviours for four years and he submits he worked in a leadership role and he was never given a permanent role despite excelling which he attributes to the fact he called out some leaders and they did not want him in their leadership group because of his integrity.

The Complainant commences his timeline in May/June 2017 and he submits agents were promoted who were the weakest agents who actually succeeded on falsified scores and he did not get considered for promotion as his scores were not good enough and submits that those who did get promoted were manipulating the system to get the best scores.

The Complainant moves on to end of 2018 start of 2019 and submits he moved to S/L (service levels) and he ended up managing this for 2 years as they needed a strong person to do this and he was selected.  The Complainant submits this was a fast-paced high level job where the service level score was left down to him and he looked after approximately 180 agents a day and skilled many to different lines depending on skills and need.  The Complainant submits he had to directly report to highest management in the UK and the US three times a day. 

The Complainant submits he was granted a grade increase because of his work and awarded a certificate for his dedication to protecting service levels.

The Complainant submits part of his work was to call out behavioural issues with agents which was significant but the behaviours did not improve and one of the team leads [REDACTED] asked him not to call out agents in his report but to go directly to her.  The Complainant submits he had 100’s of examples of agent behaviour issues and he called the worst ones directly out and he submits the behaviour of [REDACTED] was disgraceful and he called it out to [REDACTED].  The Complainant submits he called a number of the team leads into a meeting to try and get a handle on the floor.  The Complainant submits what he perceives as three incidents of “really poor leadership” and names the team leaders to whom he attributes same.

The Complainant submits [REDACTED] received a 10% increase and got promoted after he had been subject to a disciplinary while he (the Complainant received 3% for “working his socks off.”

The Complainant submits deserving agents were overlooked while poor agents were promoted on more than one occasion [NAMES REDACTED].

The Complainant submits he reluctantly went back to on calls after his failed attempt at making a stand and was forgotten about by all the leaders for whom he had worked so hard.  The Complainant submits [REDACTED] lied to him during a call about [REDACTED]’s promotion.

The Complainant submits he started to do his coaching prep again and he did his floor walking, mentoring etc and started to apply for coaching roles.  The Complainant submits his 6 years preparation and 15 years experience could not cut it with agents in the company a year with considerably less experience getting promoted.  The Complainant submits he was told he wasn’t strong enough and submits the two [REDACTED] managers who interviewed him wouldn’t have wanted him working with them as they were among the leaders he had called out. 

The Complainant submits he complained about his opportunities and failed interviews and his leader told him he would be heading up a new starter project for coaches and it would be beneficial to him. 

The Complainant submits he spoke to his coach as he had some areas that he believed could be improved within his line of business and that his coach said to him that if you can save this department 10K a year “he is golden” and the Complainant submits he said great he had something that could save them between 200K and 1 million and these were very rough figures as he did not have all the info.

The Complainant submits he sent this file to his then team lead [REDACTED] and he said                he would pass it on.  The Complainant submits he asked about it a few months later and was told they were not really interested.  The Complainant submits [REDACTED] lied to him and he went off to HR again but they weren’t too interested and he also brought up all the older stuff. 

The Complainant submits his team leader got a move and they sent a new manager a very volatile person with a track record of butting heads with agents and who the Complainant believes was taken away from her leadership role earlier because of these issues though he cannot confirm the exact number of issues.  The Complainant submits he knew his new team lead outside of the company and they used to talk football.  The Complainant submits he played against her husband when he told him to get up for what appeared to be play acting.  The Complainant submits he can’t be sure this is why she turned on him but it would explain a lot. 

The Complainant submits that his late record over 6 years was impeccable but he had car trouble in September 2022 and he had to get the bus but that Bus Eireann went through a terrible phase when the schools and colleges went back and buses wouldn’t even show up.  The Complainant submits he ended up being late a couple of times and was immediately warned it could escalate to HR. 

The Complainant submits he got refused an interview for a job he applied for and submits that the head of department [REDACTED] would have requested he didn’t call out certain things while he was in S/L and maybe he didn’t want him in there either. 

The Complainant submits he was in pretty bad shape mentally at this stage and he was really struggling.  The Complainant submits he felt bullied and he was really unhappy.  The Complainant submits in a HR meeting against [REDACTED] HR took one look at him and advised him to take some unpaid leave and made it available to him anytime it got too much.  The Complainant submit they did offer EAP before Christmas 2023 but that he didn’t contact them. 

The Complainant submits he went through a shocking few months and provides details of a number of bereavements and he submits he had never known to many close people he knew to die in such a short period of time and he made his team lead know it was a struggle. 

The Complainant submits that during this period before Christmas he went to the bathroom for 4 minutes after he finished an email or so he thought.  The Complainant submits he didn’t press the end button and the email was still open when he got back and he didn’t even remember it happened until he was taken into a meeting to explain.  The Complainant submits he held his hand up and apologised and said he must have forgotten to close when he went to the bathroom.

The Complainant submits he had no other explanation and it was a genuine error and he said that but it was not good enough and a HR ticket was open and he was punished and action taken.  There would be no bonus, warning on his profile and they took the ability to progress off him for 8 months.  The Complainant submits he was never going to make it another 8 months mentally and he appealed and he advised them of this and he submits he didn’t mind about the money or mark but he would be forced to leave if he cannot progress for 8 months as his mental capacity would not allow it.

The Complainant submits his team lead’s decision to punish him for 4 minutes after 6 years of service was not warranted and he did as he said he would do and handed in his notice immediately.  The Complainant submits he was asked to think about it for 24 hours which he agreed to. 

The Complainant submits none of his truths were investigated fully.  The Complainant submits over the course of his time he witnessed a “number of favouritism” within RVS and in so doing identifies a number of former colleagues and makes reference to what he describes as a “culture of favouritism” again identifying a number of former colleagues.  The Complainant submits there is a complete lack of any effective leadership in terms of behaviours. 

The Complainant submits he believes he can still be an asset for the company and while he now really dislikes the leaders who mistreated him he has spent 6 years working across all lines and he has a wealth of knowledge if the right person will listen.  The Complainant submits his job was to watch and report so he has an in depth knowledge of many agents and behaviours – good and bad.  The Complainant submits he could have saved the company 100’s of thousands of pounds if they did not hide his project. 

The Complainant submits he has not been working nor has he been looking as he has no real bills and he has some savings.  The Complainant is learning the rules of the road for buses and considering setting up a business. 

Summary of direct evidence of Complainant on affirmation

The Complainant in his opening submission states he felt aggrieved at the way he was unreasonably treated.  The Complainant submits he was mentally struggling as there had been five recent deaths and that he was punished for going to the bathroom for four minutes.  The Complainant submits he could not stay any longer and that in a customer care role you have to be mentally clear and strong.

The Complainant submits historical events are important here as they explain the reasoning.  The Complainant submits the worst agents on the floor got promotions.  The Complainant submits his service level role was highly important and he concedes that he wasn’t technically a manager as he had previously stated in his written submission but his role was highly important.  The Complainant submits his role was to monitor the Queues and to issue a report to management three times a day.  The Complainant submits it was a highly important role and he and he came in early every day.  The Complainant submits he reported on what affects service levels and he would identified the behaviours that affect service levels.

Having regard to the lates the Complainant submits the bus did not turn up and that was outside of his control.  The Complainant submits he never had any lates in seven years and now everything was being punished.  The Complainant submits he couldn’t get an interview for the RTM (Real Time Analyst) job though he had done all the jobs in the previous six months.  The Complainant submits the lates wasn’t his issue it was to do with the bus service which was reported all over the papers at that time and he ended up having to get an earlier bus which meant he was coming in an hour early he felt under so much pressure. 

The Complainant submits he was doing an email for one minute and twenty seconds and he had to go to the bathroom and he never closed down his email and he left it still open.  The Complainant submits his head was all over the place and people were dying left right and centre.  The Complainant submits he had a perfect record for seven years and he did lots of extracurricular stuff and he was involved in a big project.  The Complainant submits the lates were outside of his control and he doesn’t believe he should have been punished. 

Summary of cross-examination of Complainant

The Complainant confirms he signed his contract and he confirms he knew how to raise a grievance.  The Complainant confirms he had signed that he had read the Employee Handbook and that he understood its contents.  It is put to the Complainant that he was not made a manager in 2018 as he had stated in his submissions and the Complainant accepts that he was not made a manager and submits apologies for that. 

It is put to the Complainant that there is a requirement to be really clear in this matter as the Respondent witness will say the Complainant was not in charge of people and that he should not have been calling out behavioural issues to which the Complainant responds that he probably did go above and beyond. 

The Respondent representative makes reference to the lates and to the provisions of the Ireland Attendance & Timekeeping Standard and to the provision under the heading Absence that sets out the circumstances in which the disciplinary procedure may be invoked.  The Complainant is asked if he accepts and understands that three recorded lates may constitute a potential disciplinary issue to which the Complainant responds yes he does.

The Complainant is asked if he accepts that it is his responsibility to get to work to which the Complainant responds yes.  It is put to the Complainant that he didn’t even receive a verbal warning and that what he did receive was at the very lowest end to which the Complainant responds yes.  The Respondent representative makes reference to the personal deaths referred to by the Complainant and that the Respondent witness Ms Sheehan will give evidence that she cleared it for the Complainant to take some unpaid time off as he had used all his annual leave entitlement and is asked if it is fair to say that Ms Sheehan was looking out for him to which he replies yes. 

The Respondent representative makes reference to an email sent by the Complainant on 6 December 2023 to his team leader expressing his gratitude for the “kind offer of unpaid leave if it is still available” and sets out the dates on which he would like to avail of it.  It is put to the Complainant that this is sign that the Respondent is looking out for him to which he responds yes.

It is put to the Complainant that he suggests in his complaint form that his team leader does not like him because of football and he is asked if he is still saying that.  The Complainant submits he had a row with his team leader’s husband on the football field.  The Complainant is asked if he is still saying he was targeted at work by his team leader due to a minor altercation on the football field to which the Complainant relies yes that could be one of the reasons.  It is put to the Complainant that this is complete and utter nonsense and there is no evidence at all that his team leader took a dislike to him.

The Complainant is asked about his grievances and an email he had sent to the Respondent witness Ashling Sheehan who was supporting the Complainant with the grievance process and also advising the Complainant of the name of a colleague who would also be available to him during the process.  It is put to the Complainant that he of his own volition withdrew two of his complaints despite his assertion that pressure was put on him to withdraw.  The Complainant submits the pressure was put on him orally and it is put to the Complainant this is not plausible given the content of the emails and the Complainant is asked if he could have got a mistaken impression to which he responds no.

The Complainant confirms he got his first written warning in early 2024 which related to the closure of a case.  The Respondent representative directs the Complainant’s attention to an email of 21 December 2023 from his team leader which set out he had closed a case within one minute and twenty seconds and then email was left open on an unpaid break pending roughly 5 minutes with no activity on screen or on SR.  The Complainant is asked to review and to send his insights to his team leader.  It is put to the Complainant that he admitted to having taken a personal phone call when he was given the opportunity to respond and had admitted to a breach of policy to which the Complainant replies that his head was all over the place.  It is put to the Complainant that his team leader had make every effort to give him the opportunity to respond to which the Complainant replies he already had. 

The Complainant’s attention is drawn to the minutes of the meeting that took place on 18/01/2024 and is asked if he was aware that it was a formal disciplinary hearing to which the Complainant responds yes.  The Complainant is asked if he was asked if he was offered to bring representation to which he replies yes.  The Complainant is asked if there was a note-taker present to which he replies yes. 

The Complainant submits he was not sure if he was going to the toilet or if he took a couple of calls not sure if it was for that four minutes.  The Complainant is asked if he accepts his behaviour was not in line with the relevant policy to which he responds yes absolutely. 

The Complainant is asked if the severity of the sanction of a first written warning is real issue to which the Complainant responds yes. 

The Respondent representative makes reference to an email sent to the Complainant on 08 March 2024 following on from a phone call between the parties on 5 March 2024 when Ms Sheehan had called the Complainant to notify him that she would be investigating his grievance against [redacted] and the Complainant had advised that he had handed in his notice and would be leaving that week.  The Complainant was asked if he wished the grievance to remain open following his resignation in the email and it is put to the Complainant that he did not reply to that. 

The Complainant responds that he didn’t reply for a couple of weeks and is reminded he replied on 8 July 2024.  It is put to the Complainant that it is unusual for a company to take such proactive steps to investigate a grievance when the employee raising it has left. 

The Respondent representative makes reference to the Complainant’s letter of resignation and to the attempts made by the Respondent to get him to change his mind which involved two phone calls and an email from Respondent witness Mr Neil Kelsh to which the Complainant responds he (Mr Kelsh) was doing his job and he (the Complainant) had to leave he just couldn’t stay. 

It is put to the Complainant that he has identified no breach of contract to which he replies no and the Complainant is asked if what he is saying is that the behaviour was so unreasonable that he had to leave which he confirms.

It is put to the Complainant that he has nobody supporting his version of events despite his statement in his complaint form that he is sure he can get plenty of witnesses. 

It is put to the Complainant that he has an obligation to mitigate his loss to which he replies he did not know that.  The Complainant submits that mentally he couldn’t even open an email.  The Complainant submits he hasn’t been working and he hasn’t been looking and he has been getting his head right and doing yoga and stretching and stuff.  The Complainant submits he was looking at setting up a mini bus business but that didn’t really work out. 

The Complainant is asked if he is asking the AO to believe that the Respondent treated him so badly that he could not have filled in a form or ticked a box online yet he was able to submit his complaint and pages of it. 

It is put to the Complainant that he resigned on 5 March 2024 and eight or nine months later he started to apply for jobs which is not sufficient.   The Complainant he is working currently on a salary of €550 per week. 

Closing submission of Complainant

The Complainant submits the four-minute call avoidance is over exaggerated.  The Complainant submits in the first instance he was acutely aware it was an issue but this was the worst three months of his life.  The Complainant submits this happened after he called out issues with other managers.  The Complainant submits that when he was a service level manager it wasn’t a temporary role as he watched people for two years and he called out serious behavioural issues.  The Complainant submits it is really unfair and not reasonable that his calling out of leaders is why he was focused on for minor issues.  The Complainant submits he is disappointed he wasn’t able to bring up older things and that everything he said is true and that he put his heart and soul into that job and that a first written warning wasn’t the right punishment after 7 years.

CA-00065659-001

Overview of written submission

The Complainant alleges that he had no option but to resign following the result of his appeal of a First Written Warning in January 2024 for work avoidance.  The circumstances of, and process leading to, this warning is outlined in detail below.  However, the majority of the Complainant’s complaint form focusses on his discontent with failing to progress to a coaching role.  He claims he was overlooked for promotions within the Respondent and that he was overqualified for his position.  The Complainant is highly critical of colleagues and leaders within the Respondent who he believes should not have progressed in their career due to their alleged behaviour.

In November 2023 the Complainant raised an Ethics and Compliance complaint in relation to certain operations managers dating back to issues from 2017.  While the complaint was sent to People Experience to investigate, and following several meetings with, and correspondence to, the Complainant for further details of the grievance, he ultimately withdrew the complaint.  Further details are set out below.  Therefore, contrary to the allegations in the Complainant’s complaint form, there was no open complaint against the leadership team at the time of his resignation.

In January 2024 the Complainant raised a grievance against his previous manager [REDACTED].  He essentially claimed [REDACTED] had hindered his career development, notwithstanding that he had ceased reporting to him in July 2023.

A grievance investigation commenced but before it could be completed, the Complainant resigned from his employment on 5 March 2024 despite being asked to reconsider.  He was paid in lieu of his full notice period notwithstanding that he was not entitled to any payment given the short notice he had provided.  The grievance was nonetheless investigated but not upheld.

The Complainant failed to exhaust all internal procedures available to him prior to resigning but was always treated fairly and in line with company policy in all respects.

THE COMPLAINANT’S ROLE AND PROGRESSION

The Complainant’s complaint form centres on teammates and team leaders whom he believes should not have been promoted or did not deserve new opportunities.  The Complainant also alleges he was overlooked for opportunities and positions.  The Complainant’s career progression is briefly set out below.  The Complainant did not initially pass his probationary period in 2017 and was put on a support plan to provide additional support around coaching and 1:1s.  The support plan was extended before he eventually successful completed his probationary period.  In 2019 the Complainant was promoted to Concierge Teammate – Level 18.

After that, the Complainant applied for various other roles within the Respondent but was not successful.  Between 2019 and 2021, his team lead, Neil Kelsh, provided the Complainant with a temporary opportunity to support team leads with monitoring service levels.  For the avoidance of doubt, the Complainant was not a Service Level Manager during this time as he suggests.  His job title did not change.  He has exaggerated the role, claiming to be a manager and member of leadership which is not accurate.  The role involved observing and reporting on services levels and providing a summary by email to leadership three times a day.  The Complainant incorrectly alleges that the position was a “high level job” and that he managed 180 teammates – in fact, he did not manage any employees.  While carrying out this temporary role, the Complainant had visibility of all teammates’ activity (work codes e.g. availability, breaks, proactive/project work, training etc). Using this information, the Complainant began to monitor specific teammates and reach out to their team leaders highlighting his “concerns”.  This was not part of the role and leadership advised him to stop.

The Complainant returned to his call agent role in 2021 as team leads no longer needed the additional support.  However, he continued to monitor and report teammates, particularly those who were promoted or offered new opportunities, without authority.  In the absence of any evidence or access to the necessary information, the Complainant’s submission makes assumptions about teammates and team leaders whom he believes should not have been promoted or did not deserve new opportunities. There is no basis for these assumptions.

In September 2022 the Complainant applied for a Workforce Operations position but was not successful. In October 2022 he informally complained to the People Experience team in relation to the delay in receiving a response to his application.  Employee Relations Partner, Ashling Sheehan, met with the Complainant via zoom on 11 October 2022 and followed up by email on 14 October 2022 to advise that the Complainant should reach out to the relevant recruiter for feedback on his application and timeline for the process.

In July 2023, the Complainant applied to the Respondent’s recruitment team for a Workplace Analyst role.  He was not selected for interview and proceeded to informally complain to the People Experience team.  He was advised to ask the recruitment team for feedback and asked if he wished to submit a formal grievance.  He was also provided with a copy of the Respondent’s grievance procedure and complaint form.  The recruitment team engaged in correspondence with the Complainant, detailing why he was not selected for interview, which was primarily because he did not have any experience within forecasting or analysis activity.

It is clear from the Complainant’s complaint form that the source of his complaint lies in his frustration with failing to progress within the Respondent. 

THE COMPLAINANT’S NOVEMBER 2023 ETHICS COMPLAINT 

In November 2023, the Complainant raised an Ethics and Compliance complaint through the Respondent’s Integrity Helpline against two operations managers – [REDACTED] and Neil Kelsh. The complaint related to historic issues dating from 2017 to 2022.  The Complainant outlined concerns regarding the alleged failure of [REDACTED] and Mr Kelsh to address and take appropriate action against alleged longstanding behavioural issues exhibited by certain customer care agents.

Specifically, the Complainant alleged that certain agents were shown favouritism, as they were promoted and offered new opportunities despite not adhering to the Respondent’s policies on punctuality and attendance.  The complaint was sent to People Experience for investigation.

However, as little information was provided, the People Experience team met with the Complainant on several occasions and contacted him seeking further details of the complaint and supporting documentation.  The Complainant was assured that the complaint would be impartially investigated by an independent business leader once the details were provided.  The Complainant was unable to substantiate his claims, and he subsequently withdrew the complaint.  The Complainant suggested that his grievance would not be considered as it related to operations managers.  The People Experience team again assured the Complainant by email and during meetings that if the complaint details were submitted, they would be fairly investigated by an independent business leader. However, the Complainant opted not to proceed with the complaint.

FIRST WRITTEN WARNING 2024 – CALL AVOIDANCE 

In late December 2023, the Complainant’s team lead, Niamh Seoighe  became aware of a potential work avoidance issue in relation to the Complainant.  To understand the allegations of work avoidance, it is important to note the following work practices within the Respondent:

i.                 Agent Desktop: this is the queue whereby cases are presented to employees to work upon. A capacity reader on the Agent Desktop lets managers know how many hours were spent working on cases. If not busy on Agent Desktop, employees are expected to focus more on sweeping and proactive work and log this work.

ii.                Break times: employees receive a 15-minute break in in the morning, a 30-minute break at lunch time and a 15-minute break in the afternoon.

iii.               Screen recording: employees are fully aware that screen recording happens automatically within the Respondent. Therefore, where an employee is not working a case, supervisors can tell very clearly from screen recordings. Block recordings are generated by the system. This is done primarily for coaching/quality assessment. Hourly screen recordings are randomly triggered throughout the day.

iv.               Idle time: this is where there is no activity on the screen, i.e. the computer has been left unattended.

On 21 December 2023, the Complainant’s team lead, Niamh Seoighe, reached out to the Complainant regarding concerns of his work avoidance.  The call avoidance issues that were raised related to the Complainant’s closure of a case within 1 minute and 20 seconds, an email being left open in an unpaid break for roughly 5 minutes with no activity on the screen and without logging his break, and his incorrect usage of green shrinkage. Green Shrinkage status is an eBay AUX code which employees can use where additional time is available – it is used for a variety of reasons, such as impromptu calibrations or coaching, or catch-up time for eLearning’s, etc.  Most of the time it is used for employees to work on cases offline or complete some training they have missed. However, sometimes employees use it intermittently, potentially to avoid calls. Ms Seoighe outlined what she had observed and asked for his comments. This correspondence is attached at Appendix 6. As his responses were deemed unsatisfactory, he was invited to a disciplinary hearing on 17 January 2024.

The Complainant attended a disciplinary hearing on 18 January 2024 in relation to his alleged call avoidance. The Complainant was given the opportunity to be accompanied by a colleague, but he declined.  During the disciplinary hearing the Complainant was given an opportunity to respond to the allegations and to present any mitigating circumstances.  At the hearing, the Complainant accepted responsibility for closing the call after 1 minute and 20 seconds, and failing to log his unpaid break, for which he apologised.  He acknowledged that his actions were not in line with the Respondent’s practices regarding the AUX codes and Green Shrinkage.

The Complainant was issued with a First Written Warning on 26 January 2024 for his misconduct.   The sanction letter outlined that consideration was given to the issuing of a final written warning, however, as the Complainant had accepted responsibility and given assurances that this would not re-occur, a First Written Warning was issued which would remain on the Complainant’s file for 9 months. In line with standard company policy, the Complainant was informed that during the quarter in which the warning was issued he would not be eligible for bonus payments, and that while the warning was active, he would not be eligible to apply for any internal roles / opportunities or receive educational assistance and future period of absence would be treated as unpaid.

The Complainant was given the opportunity to appeal the warning within five working days, which he did, on 30 January 2024.   He appealed on the basis that the sanction was too severe.  On 2 February 2024, Mark Simmonds, Senior Manager, Partners, was appointed to hear the appeal and provided with a copy of the appeal letter and all relevant supporting documentation.  The appeal was considered in line with the Corrective Action policy which states: The appeal will be conducted by reviewing the evidence of the case, together with the employee’s written grounds of appeal and will be a paper-based appeal only.  The employee will be informed of the outcome of the appeal decision in writing as soon as is reasonably practicable, and the Manager’s decision will be the final stage of the Company’s internal procedures.

The Complainant was informed on 9 February 2024 that Mr Simmonds was working through the appeal but that due to annual leave and in order to give the appeal the time it deserved, the appeal outcome would be issued after his leave. The Complainant was given further updates on the status of the appeal on 23 and 27 February 2024 and informed that Mr Simmonds was still assessing the appeal and conducting meetings with relevant individuals in order to be as thorough as possible.

The appeal outcome was issued to the Complainant on 5 March 2024 the appeal was not upheld. Mr Simmonds concluded that the action taken was in line with similar cases across the business, that the Complainant had been treated fairly, and that a First Written Warning was appropriate.

THE COMPLAINANT’S JANUARY 2024 GRIEVANCE AND SUBSEQUENT RESIGNATION

Prior to receiving the First Written Warning referred to above, on 10 January 2024, the Complainant submitted a formal grievance against his previous manager, [REDACTED].  The Complainant had reported to him from 8th November 2021 to July 2023.  The Complainant essentially alleged that [REDACTED} had hindered his career development by preventing him from obtaining other roles within the organisation.

On 15 January 2024, Ashling Sheehan, Employee Relations Partner, acknowledged receipt of the Complainant’s grievance and informed him [REDACTED] Employee Relations Partner was assigned as his HR Contact for him if he needed any support with the process. In the weeks that followed, the People Experience Team engaged with the Complainant in relation to this grievance and the November 2023 Ethics complaint.   When the latter complaint was ultimately withdrawn, Ashling Sheehan confirmed that the grievance investigation against [REDACTED] would now get underway.

On 5 March 2024, Ashling Sheehan, Employee Relations Partner, was appointed as the relevant grievance investigator and this was confirmed to the Complainant via Zoom.  It is common within the Respondent’s organisation for HR representatives to carry out grievance investigations and Ms Sheehan was experienced and independent in this regard.

As part of the grievance investigation, Ms Sheehan met with [REDACTED] on 5 March 2024 and asked him to provide input and supporting documents, which he did.  Before the investigation could go any further, the Complainant resigned from his role by email to his team lead, Niamh Seoighe , on 5 March 2024. 

Notwithstanding that the Complainant was required to give 4 weeks’ notice, he indicated that he would finish three days later, on 8 March 2024. On 5 March 2024, Neil Kelsh, Operations Manager, acknowledged the Complainant’s email and asked him to reconsider his resignation within the following 24 hours.  The following day Mr Kelsh contacted the Complainant by phone and then email acknowledging that the Complainant still wished to resign. Mr Kelsh outlined that normally where an employee resigns on short notice, they waive their right to be paid their full contractual notice, however, as a gesture of goodwill, the Respondent was prepared to fully pay him in lieu of his 4-week notice period. 

On 8 March 2024, Ashling Sheehan emailed the Complainant’s personal email address asking if he wished the grievance to remain open.  There was no response. On 14 March 2024, Ms Shehan followed up and informed the Complainant that if he did not respond by 18 March, the Respondent would assume he did not wish to proceed with the grievance.  Again, he did not respond.

Notwithstanding that Ms Sheehan had not heard from the Complainant, she proceeded to investigate the grievance.  She did not uphold the grievance.   The evidence provided by [REDACTED] showed that he had in fact supported the Complainant’s development.  In addition, Ms Sheehan found that when the Complainant had applied for coaching roles within the business, these roles were in other teams in which [REDACTED] was not the hiring manager.

Therefore, other managers determined his suitability for those roles and [REDACTED] was not responsible for the Complainant’s failure to obtain those roles.  Ms Sheehan determined that [REDATED] was not responsible for the Complainant’s lack of career progression. She ultimately concluded that as the Complainant had left the business and not responded to her emails, she recommended closing the case.

Almost four months later, on 8 July 2024, the Complainant emailed Ms Sheehan confirming that a claim had been lodged with the Workplace Relations Commission.

THE COMPLAINANT’S ABSENCES

The Respondent enforces a strict attendance and timekeeping policy.  It operates a call centre with 900 employees; therefore, efficiency is key to the operation of the centre and accordingly, the policy is applied consistently.  In line with the Attendance and Timekeeping policy, a verbal warning was typically issued for three instances of poor timekeeping and/or absence in 6-month period, regardless of how late the employee was.

In late 2023, the Complainant was absent three times in 6 months which was a breach of the Respondent’s Attendance and Timekeeping Policy.  On 28 November 2023, the Complainant’s team leader, Niamh Seoighe, issued informal Verbal Counselling for the Complainant’s contravention of the policy.  For the avoidance of doubt, this is an informal warning and not a formal disciplinary warning.  In late November 2023, Ashling Sheehan, Employee Relations Partner, had meetings and email exchanges with the Complainant to check in on his wellbeing in light of his absences. His family friend had passed away. She offered him the opportunity to attend an occupational health specialist and checked that he was fit to work – he confirmed he was fit to work and did not wish to attend an occupational health specialist.  Ms Sheehan also reminded the Complainant of the Employee Assistance Programme. As a gesture, the Complainant was subsequently granted three days’ unpaid leave as he had no annual leave remaining.

The Respondent always supported the Complainant during his absences and although sick pay in the Respondent’s organisation is discretionary, the Complainant was paid full sick pay for all absences prior to his warning on 26 January 2024.

The Respondent strongly denies that the Complainant was constructively dismissed.

Law relied upon by the Respondent

Berber v Dunnes Stores [2009] IESC 10

Cedarglade Limited v Tina Hilban UDD 1843

Western Excavating (ECC) Limited v Sharp [1978] 2 WLR 344

A General Operative v A Religious Society ADJ-00002814

Summary of Respondent witness Ms Ashling Sheehan (hereafter AS) on affirmation

The witness outlines her role as that of Employee Relations Partner advising team leads on ER matters and conducting investigations and grievances.  AS is with the company for over three years.  The witness submits the Complainant was a customer service agent in concierge which caters to the premium high value customers.  The witness outlines it is necessary to give these customers a premium service as they have higher expectations of such.  The witness submits all the minutes in the day are tracked and it is important that the agents stick to their schedule and the taking of an unauthorised break can affect service levels. 

AS submits the Complainant is incorrect when he submits he is in change of 180 agents and there is no HR record of any change in his role.  The witness submits that calling out behaviours was never the Complainant’s job; his job was to observe the service levels.

The witness submits that having regard to the grievances raised by the Complainant, the ethics claim was assigned to her.  AS explains the concept of an ethics claim in that it can be made anonymously and it would be sent to the appropriate department because in essence it is a grievance. 

The witness submits she did not pressure the Complainant not to pursue older elements of his complaints and that in fact she gave him the IT link that he could use if he wished to pursue the historical ones as under their data retention policy messages are erased after 18 months.

The witness submits the Complainant’s grievances were not investigated as he was unable to provide supporting documents and that she went over and above with him trying to help him.  The grievance against [REDACTED] was in regard to historic issues also but even though the Complainant had resigned she still contacted [REDACTED] and advised him a grievance had been raised against him and she was the investigation manager and she would be investigating the grievance raised by the Complainant. 

The witness submits she progressed this as it was important to ensure they had an outcome in line with the principles of natural justice.  The witness submits [REDACED] said he in fact had supported the Complainant’s career development despite assertions to the contrary.    In regard to the number of broad allegations made by the Complainant that people were promoted ahead of him the witness submits from a HR perspective you have to own your own development and the onus is on the individual.

The witness confirms sick pay is discretionary and it was always exercised in favour of the Complainant.  AS confirm the additional unpaid leave is discretionary and is dependent on if the business can allow it. 

AS submits she had first met with the Complainant through the grievances he had raised and there seemed to be a lot going on with him and she offered him the counselling sessions through the EAP which was ten sessions completely free for him or a family member.  The witness submits if the Complainant had come to them with mental health issues they would have offered him help.   

The witness submits his decision to resign was an instant decision in the heat of the moment and that’s why they wanted to give him the opportunity to retreat from it. 

Summary of cross-examination of Respondent witness AS

It is put to the witness that she had said he no job change on file in HR but he had a significant change to which the witness responds his tasks had changed not his job.  It is put to the witness that she had said it wasn’t his job to call out behaviours but conduct and behaviours came up and he had to call people out. 

The Complainant refers to when he was offered the unpaid leave and asks the witness if she agrees he was not in a good mental state to which she replies she would not be qualified to say but that she knew he had personal issues that he was dealing with.

Re-direct

It is reaffirmed by AS that EAP services were offered to the Complainant and he chose not to avail of same. 

Summary of Respondent witness Niamh Seoighe (hereafter NS) on affirmation

NS outlines she is a team leader since 2020 and manages the premium services team previously called the concierge team.  The witness believes her line management relationship with the Complainant was good and that she had supported through difficulties he was having. 

The witness submits there were ongoing late issues three of which were recorded and she reached out to the Complainant and he said he was struggling with buses.  The witness submits she tried to get documentation from Bus Eireann regarding the problem but couldn’t and there was an informal sanction imposed.  NS submits she treats everyone the same way; her team deals with the high value customers and an agent being late has a ripple effect right through the day.  The witness submits she would have several examples of how she treats everyone the same way in similar circumstances.  The witness submits she checks with the team in monthly one-to-ones and she was aware that the Complainant was having difficulties in his personal life.  The witness submits the Complainant had exhausted all his PTO and she approved the unpaid time off as she believed he would benefit from the time to breathe. 

The witness makes reference to the case closure and the failure to close the email and explains in doing this you are actually blocking a contact from getting through and she makes reference to green shrinkage (concept explained in Respondent submission set out above). 

The witness makes reference to the disciplinary hearing in January the decision was hers and she wasn’t aware of the other cases she was purely looking at the facts.  The witness submits in mitigation the Complainant submits he was going through a hard time.  The witness submits she had a mirror green shrinkage case going on at the same time and she had to treat them both the same.

The witness submits she believed a first written warning was appropriate given the instances of work avoidance and the failure of the Complainant to respond to her emails when she sought his insisghts. 

The witness submits she finds it really unfair that the Complainant would say she is biased against him because of her husband.  NS submits she was very upset when she saw that on the complaint form.  The witness in response to the Complainant’s allegation that she targeted him says absolutely not.

Summary of cross-examination of NS

The witness is asked by the Complainant what was wrong with his email reply and didn’t he admit he had made a mistake.  The Complainant seeks to question the witness about her husband and this is objected to.  The witness is asked if she agrees it is fair to say the Bus Eireann issue was outside of his control.

Summary of direct evidence of Respondent witness Mr Neil Kelsh (hereafter NK) on affirmation

NK outlines he is in his current role for 18 months and he was the Complainant’s team leader from leader from 2017 up to Covid. 

The witness outlines that the Complainant stayed at the same grade but that his duties had changed and he stopped taking calls and was monitoring service levels. 

The witness submits he has known the Complainant since he started with the company and when he emailed him after he resigned he was offering him a way that he could stay and he phoned him also.  The witness submits he wanted to give the Complainant more time to settle on his decision to give him time to think and he sent it to his personal email and as he had been with the company for seven years he wanted to do the right thing for him. 

Cross-examination of NK

The witness is asked if it is correct that he the Complainant called out behaviours to which he replies yes.  The witness is asked why this was problematic to which he responds the Complainant was meant to be monitoring service levels and not agents’ behaviours.

Summary of direct evidence of Respondent witness Mr Mark Simmonds (hereafter MS) on affirmation

The witness outlines he has been thirteen years with the Company and he is Senior Manager for Partners.  MS confirms he heard the Complainant’s appeal which was a paper based appeal in accordance with the corrective action policy.  The witness submits he had flagged with HR that he was going on leave when he was appointed to hear the appeal.  The witness submits he reviewed all the documents and the nub of the appeal was the severity of the sanction and the starting point would be no action.    The witness submits he felt everything had been covered and there was nothing new raised in the appeal and that he had considered the mitigating factors.  The witness submits he considered the impact on the customers and the impact on team mates and he checked out other similar cases.  The witness outlines that he has heard other appeals.

Cross-examination of MS

The witness is asked to confirm he was away for a week.

Closing submission of Respondent

It is submitted the law is clear and the burden is on the Complainant to show that the Respondent’s behaviour was so unreasonable it was intolerable.  It is submitted the Complainant has admitted it wasn’t contractual.  It is submitted the Complainant has not discharged the burden.  It is submitted the Complainant was unhappy he wasn’t promoted.  It is submitted he got a first written warning for a breach he admitted and he then took a rash decision to resign and there three separate offers made to him to rescind which he declined.

It is submitted the Complainant was intimately familiar with the grievance procedures as he has used them and he was well equipped to deal with them.  It is submitted the Complainant has been completely inconsistent in his evidence over the four-minute issue at the centre of this where he says he took a phone call and then says he went to the bathroom and going to get a cup of tea is mentioned.  It is submitted there is no clarity as to why he took the unauthorised absence.  It is submitted this is not a case where the Complainant was dismissed or not even a final written warning.  It is submitted the Complainant voluntarily withdrew his grievances which he had alleged was due to extreme pressure which was denied.

The Respondent (Mr Kelsh) made numerous attempts to offer the Complainant the opportunity to retract his resignation.  It is submitted the Complainant’s asserted that only when he started raising issues did he get sanctioned just doesn’t stack up.  It is submitted the Complainant admitted to the lates and he admitted to a breach in the process.  It is submitted the Complainant said he had loads of witnesses but where are they.  It is submitted the Complainant resigned and he did not exhaust the internal avenues open to him.  It is submitted the sanctions were commensurate with the admitted offences.  It is submitted the burden of constructive dismissal has not been met and by his own admission he did not mitigate his loss.

CA-00065659-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I have carefully considered the caselaw to which I have been directed.     I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

I have two versions of events before me that are entirely at odds in many respects having regard to events as they unfolded prior to the Complainant’s resignation.  The timeline of the relevant events is not in dispute albeit each party sought to interpret events in accordance with their respective positions.  

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing. 

Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

The Relevant Law:

Constructive dismissal is included in the definition of “dismissal” at section 1(b) of the Acts, as follows:

“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,”

There are therefore two situations envisaged in which a resignation may be considered a constructive dismissal; where the employer’s conduct amounts to breach of contract or repudiation of the contract (the “contract test”) or is such in relation to the employee that it was reasonable for the employee to resign (the “reasonableness test”).  

The Contract Test

The accepted statement of this test is by Lord Denning MR in Western Excavating v Sharp [1978] ICR 221 as follows:

“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 discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  … [T]he conduct must … be sufficiently serious to entitle him to leave at once …”

The Complainant at hearing submits his claim is not grounded on the contract test.  Turning now to the reasonableness test. 

The Reasonableness Test

Constructive dismissal may arise where the employer’s conduct was such that it was reasonable for the employee to terminate his or her employment.  Lord Denning MR addresses this concept in the same case as follows:

“It is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving.”

It is well-established in this context that there is a reciprocal duty on an employee to act reasonably in terms of affording an employer the opportunity to address any issues.  This is clearly set out in Reid v.Oracle EMEA Ltd [UD1350/2014] where the EAT stated: 

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”  [emphasis added]

In this regard, the Employment Appeals Tribunal in Conway v Ulster Bank Ltd (UD474/1981) held that a complainant had not acted reasonably in resigning “without first having substantially utilised the grievance procedure to attempt to remedy her complaints.

InMary Kirrane v Barncarroll Area Development Co Ltd[UDD1635] the Labour Court held that the person complaining of constructive dismissal must also access available grievance procedures to deal with the circumstances which led him/her to resign. 

In Berber v. Dunnes Stores[2009] 20 ELR, the Supreme Court held as follows:

“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 considering whether there has been a constructive dismissal I am not required to determine whether there has been a repudiatory breach of contract by the Respondent as the Complainant submits he does not seek to ground his claim on the contract test. 

I am required to determine whether the Respondent engaged in conduct which made it reasonable for the Complainant to terminate his contract. 

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The proofs which the complainant must advance to prove his case is that the behaviour of the respondent and of which he complains corresponds with the requirements laid out in the reasonableness test and was behaviour which left him with no option other than resign. 

The Relevant Facts

The central plank of the Complainant’s case is that he had no option but to resign following the result of his appeal of a first written warning in January 2024.  The Complainant submits the lates that occurred were outside of his control and that he should not have been punished for that.  The Complainant’s statement accompanying his complaint form covers the period from when he joined the Respondent company with claims of being overlooked for promotion amidst claims of managers and other leaders “behaving appallingly” over the six years. 

For the purposes of this investigation I am bound to examine the alleged unreasonableness of the behaviour of the Respondent that the Complainant submits triggered his resignation.

Having regard to the lates for which the Complainant does not believe he should have been punished I note the Attendance & Timekeeping Standard policy provides as follows:

Late Arrival / Early Departure

Failure to arrive for your scheduled shift on time or leaving prior to the end of scheduled shift without having this time approved.

It is the expectation that all employees arrive to work on time for their scheduled shift and complete their entire scheduled shift.  [sic]

Absence

In the case whereby your absence is having an impact on the business and your team the disciplinary process may be evoked.  For example, this could be excessive or repeated instances of absence i.e. three instances of absence are recorded within a rolling 6-month period or 5 in a 12-month rolling period or more than one prolonged and unsustainable period of absence occurs.  [sic]

I note having reviewed the policy it provides for a verbal warning.  I note the Complainant was issued with informal Verbal Counselling in respect of his breach on 28 November 2023.  I am unable to find this constituted unreasonable behaviour on the basis that it was an informal warning.         

I note the Complainant did receive a First Written Warning on 10 January 2024 arising from an issue in December 2023 where an email was left open in an unpaid break for approximately 5 minutes and there was no break logged by the Complainant as provided for on the system which led to an investigation into the matter.   

I note the Complainant’s team leader emailed the Complainant on 23 December 2023 looking for his insights on the matter and provided him with GS (Green Shrink) to provide him with time to review and to revert to her.  I note on 3 January the Complainant’s team leader emailed the Complainant indicating to him that GS had been added to his schedule to provide him with time to revert and queried why she hadn’t received his insights on the matter under investigation to which the Complainant emailed back to say it was for a quick phone call and advising the team leader that she “may take whatever behavioural steps needed” and “I think its great this is being called out now.”

There is no dispute on the facts here.  The Complainant fully accepts that he closed a case within 1 minute and 20 seconds and forgot to close the email and go into actual break status.  I note from the minutes of the disciplinary hearing the Complainant said it was his fault and he admitted liability and couldn’t remember where he was and said he could have gone to get tea or to take a call.   

The Complainant appealed the imposition of a First Written Warning on the grounds of severity of sanction.  The appeal was not upheld. 

The test as to whether someone was constructively dismissed is an objective one and I find that the level of reaction exhibited by the Complainant is disproportionate to any of the facts which have been established by him in evidence. 

It seems to me, having heard the case and considered the submissions carefully, that the Complainant felt a deep sense of injustice about many aspects of his employment with the Respondent.  The Complainant appears to feel that he has been treated unfairly by the imposition of a first written warning for behaviour of a type he would have called out in respect of agents in the past and I find this to be one of the irreconcilable anomalies in this case.    

I fully accept the Complainant feels aggrieved and that he is sincere in this.  While I have every sympathy for the Complainant with regard to difficulties he was experiencing in his personal life at this time I am bound to consider this complaint in light of the sworn evidence of the parties.  Moreover, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances. 

However, very little was proffered by way of facts or evidence that would support a claim for constructive dismissal on the grounds of unreasonable behaviour by the Respondent.  I accept the Complainant feels he has been treated badly but I am of the view he has failed to meet anything approaching the threshold with respect to constructive dismissal when I consider the following. 

I note from the Complainant’s submission and from his evidence at hearing that the Complainant feels particularly aggrieved by the imposition of a sanction on him when the disciplinary procedure was invoked arising out of his behavior.  I have difficulty reconciling this when I consider the Complainant’s criticisms and calling out of agents and the calling out of team leaders for not doing their jobs all of which he sets out in great detail in his complaint form.  Conversely, when his team leader does her job and addresses an issue with the Complainant he considers it to be unreasonable behaviour and alleges he is being targeted.  I find there is a dichotomy here that is impossible to reconcile. 

On the one hand the Complainant identifies and rebukes team leaders and cites examples of what he considers “poor leadership incidents.”  On the other hand, the Complainant, when he becomes the subject of an investigation by his team leader and is given a warning which he appeals, advises HR by email that he will be leaving if the appeal is unsuccessful.   

I do not agree with the Respondent witness Ms Ashling Sheehan when she submits in evidence that the Complainant’s “decision to resign was an instant decision in the heat of the moment.”  I am satisfied the Complainant had already indicated that he would resign if his appeal against his first written warning was not upheld and when it wasn’t upheld he resigned.   

I have considered the Respondent’s behaviour in the round as follows.  I note that although sick pay is discretionary the Complainant was paid full sick pay for all absences prior to the imposition of his warning in January 2024.  I note the Complainant accepted this at hearing but did comment that it was an example of being treated differently the meaning of which comment was not clarified.   

I note the Complainant was granted and availed of three days’ unpaid leave when he had exhausted his annual leave entitlement which was also discretionary.  I note the Respondent offered the Complainant the opportunity to attend an occ health specialist.  I note the Complainant was provided with details of the Employee Assistance Programme and a request that he reach out to leadership or to People Experience if he ever needed support or additional resources.  I note when the Complainant resigned he was provided with an opportunity to reconsider three times in email format and by telephone and he chose not to.  I am unable to find the conduct of the Respondent in their interactions with the Complainant was such that the Complainant was left with no option other than to resign.    

It is an inescapable fact in this case that the Complainant resigned without engaging in any attempt at raising a grievance and he would have been familiar with the grievance process as he had utilised it in the past.   I am mindful of the Labour Court in the case of Mr O v. An Employer (no2) [2005] 16 ELR 132 where it was held as follows:

“The Court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.” [emphasis added]

Having carefully considered the evidence and submissions, and applying the relevant law, I find that the Complainant was not dismissed, constructively or otherwise.  In the circumstances I find that the Complainant resigned from his employment of his own volition and was not constructively dismissed within the meaning of section 1 of the Unfair Dismissals Act, 1977. 

The Complainant has not discharged the burden placed on him by the Act.  I am not persuaded by the Complainant that resignation was his only option.  Accordingly, I find that he has failed to establish he was constructively dismissed, and his complaint cannot succeed.

CA-00065659-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

For the reasons set out above I have decided this complaint is not well-founded. 

Reasonableness test;