UDD2539

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045613 (CA-00057433-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 19 July 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

A Labour Court hearing took place on 17 September 2025.

The following is the Decision of the Court:-

DETERMINATION:

1 Background to the Appeal

 This is an appeal by Mr O Donnell (the Complainant) against Adjudication Officer’s Decision ADJ-00045613 CA-00057433-001 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim of constructive dismissal against his previous employer Letterkenny University hospital (the Respondent) that he was unfairly dismissed. The Adjudication Officer held that the complaint was not well founded. There are three linked cases under the Organisation of Working Time Act, WTC/24/72, WTC/24/73 and WTC/24/74.

The complaint was lodged with the WRC on 28 June 2023, appealed to the Labour Court 19 July 2024. A Labour Court hearing was held on 17 September 2025 in Donegal.  The Complainant commenced employment with the Respondent in catering and moved into domestic services in December 2012. The Complainant resigned his position on 11 April 2023.   The relevant period for the purpose of the Act is 29 December 2022 to 28 June 2023.

2 Summary of Complainants submission

The Complainant submitted that he resigned from his position with the Respondent on 11 April 2023 because of what he described as the Respondents disregard to their duty of care in their treatment of him in the workplace. During Covid he was in the very high-risk category, and this was confirmed by Occupational Health in a letter dated 25 November 2020. It was his submission that at no time during his cocooning period did the Respondent contact him in reference to working from home or redeployment to another area of the HSE.  This was contrary to the HSE own policies. He submitted that because of this failure to adhere to the policy and total disregard of HSE Occupational Health which certified him fit to return to work in April 2022. He suffered severe stress and anxiety and financial hardship which had a cumulative effect. This left him with no alternative but to resign on 11 April 2023. The Complainant submitted that he was looking to be reinstated in keeping with Occupational Health Recommendations of 14 February 2023.

3 Summary of Respondent’s submission

During Covid the Complainant was deemed to be fit for working from home but not attending the workplace. The Respondent had no work that the Complainant could do from home, but he remained on special leave with pay and annual leave accrued was allocated during the period.  The Complainant was due to return to work in April 2022, and a meeting was organised to facilitate same. The Complainant attended with his Union representative and expressed concerns about returning to work in a patient contact area as he was unvaccinated. It was agreed that he would return to work in a non-patient contact area and would be provided with refresher training including hand hygiene and Infection Prevention and Control training.  His supervisor contacted him on 18 April 2022 the day before he was due to return and advised that he would be working in the X-ray department as this was non-patient contact area. When he returned to work the next day, the Complainant ignored the agreement that he would work in the Xray Department and returned to his substantive post. By doing so he was putting himself at risk as both he and his occupational health recommendation had stated that he should be in a non- patient contact area. The line manager spoke to the Complainant and advised him that he had to go to the Xray Department. He could work there under protest if he wished and take a grievance or he could go home but would not be paid. The Complainant went home. The line manager arranged a meeting with the Complainant for the next day 20 April 2022. However, the Complainant did not attend the meeting. He was absent from work from 20 April until 20 June 2022 and suffered no financial loss during that period. The Complainant was then absent from 22 October 2022 on sick pay which was stopped on 18 November 2022 as he was not complying with the requirements of the HSE Managing attendance policy. Had he gone back on sick pay his entitlement would have been exhausted on 6 December 2022.

 During this time the Complainant made complaints against various people and submitted medical certificates stating he was absent due to work related stress. The Complainant refused to complete the HSE risk assessment form or agree a meeting with his line manager. He eventually signed the risk assessment form but submitted it to the National Office which then redirected it to the Respondent who received it on 22 December 2022. The Complainant could not return to work until this form was completed.

The Complainant requested a meeting with Mr Paul Hume Saolta Group Employee Relations Manager regarding the completion of the risk assessment and was advised that the appropriate person to meet was Mr Byrne. The Complainant agreed to meet with Mr Byrne under protest. The meeting took place on 18 January 2023. At the meeting he refused to answer simple questions, and no progress was made so it was agreed that a further meeting would be arranged with Mr Hume in attendance.

The Complainant attended Occupational Health during this period and a report following same stated that he remained unfit for work and recommended a work stress risk assessment. A letter was sent to the Complainant on 24 March 2023 proposing that Mr Hume would conduct the risk assessment and a meeting was arranged for Thursday 30 March 2023, but the Complainant did not attend the meeting. A further meeting was arranged for 6 April 2023 at this meeting the Complainant refused to complete the risk assessment form. Mr Hume offered the Complainant a further meeting on 11 April 2023. At that meeting the Complainant tendered his resignation. This was the second time the Complainant had tendered his resignation. On the first occasion the Respondent had not processed it, on this occasion they did process it, and the Complainant never sought to withdraw it.

4 The applicable law

Section 1 of the Act defines constructive dismissal in the following manner

“ the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,”

Section 6(1) of the Act states

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

5 Issues for the Court

As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”.  In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test”

an employer must be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, he is justified in leaving.

6 Discussion

 The Complainant is seeking to rely on the failure of the Respondent to address his issues concerning his return to work and his engagement with his line manager. It is clear from the Respondent’s submission that they sought to engage with him, but he either did not turn up to meetings or when he did he did not properly engage. The Complainant was a long serving member of staff and was familiar with the Respondent’s policies including the grievance procedure and chose not to engage any of those processes prior to resigning.

The net issue for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Act.  In reaching its conclusion on that question the Court has taken full account of the written submissions made by the parties.

In constructive dismissal cases, the Court must examine the conduct of both parties. 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. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (see Conway v Ulster Bank Limited UDA474/1981).

In Beatty v Bayside Supermarkets UD142/1987, in referring to the need to utilise grievance procedures, Employment Appeals Tribunal held: -

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981.  In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

On the other hand, in Allen v Independent Newspapers (Ireland) Limited [2002] ELR 84 the Employment Appeals Tribunal held that it was reasonable on the facts of that case for the complainant not to have faith in the employer’s ability to properly or effectively address her grievances. However, in the instant case, the Court is not satisfied that there were factors present which might excuse the Complainant’s failure to formally complain to the Respondent before resigning.  The Respondent had a grievance procedure in place, and the Complainant was aware of its existence.

On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle him to terminate his employment without having sought to ventilate and resolve whatever grievance that he had through the internal procedures.

In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal nor was such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of his contract of employment. Accordingly, the Court must hold that the Complainant’s employment did not come to an end by way of dismissal.

The Court determines that the Complainant’s complaint is not well founded. The appeal is rejected. The decision of the Adjudication Officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
30 October 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ms Ceola Cronin, Court Secretary.