Complainant

Respondent

Parties

Christopher  Varian

Lorat Trading Limited t/a The Phone Stores

Representatives

Neal Horgan BL, instructed by Walsh & Partners Solicitors

Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00063289-001

03/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00063289-002

03/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007

CA-00063289-003

03/05/2024

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

CA-00063289-004

03/05/2024

The complainant has lodged claims for penalisation under Section 27 of the Safety, Health and Welfare at Work Act, 2005 and penalisation for making a protected disclosure under the Protected Disclosures Act, 2014 - 2022. The complainant has further lodged a claim of constructive dismissal pursuant to Section 8 of the Unfair Dismissal Acts, 1977.

The complainant’s representative clarified that while CA-00063289-002 was lodged under the Health Act, it was in fact a claim relating to penalisation for making a protected disclosure under the Protected Disclosures Act.

At the commencement of the hearing, the complainant withdrew (CA-00063289-003) - Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007.

The complainant commenced employment with the respondent on 19 September 2022 and ceased working with the respondent on the 26 January 2024. The complainant worked a 40 hour week. The respondent is a company engaged, inter alia, in the business of mobile phone stores including providing mobile phones and mobile phone services.

The complainant states that on or about 17 August 2023, he raised a safety, health and welfare concern relating to the endangerment to the health and safety of the respondent's employees with his employer in respect of painting that, he was just informed, was due to take place later that same day in the retail premises where the complainant and a co-employee were employed by the respondent. The complainant raised concerns in respect of the health and safety of same for himself and his co-worker J as well as for customers. He raised concerns in advance of the painting with (i) his area manager who first informed him of the painting and (ii) the training and compliance manager (who was to arrive later to arrange for the painting to take place). The complainant maintains that despite same, his concerns were ignored/not addressed.

The complainant asserts that the training and compliance manager in response to the complainant raising this concern, raised a completely unrelated performance related issue to do with the store that the complainant was managing with words to the effect of 'you should be more worried/concerned that the X [my emphasis]store has failed the store audit" conducted on a date in July 2023.

The complainant responded with words to the effect 'seriously, that's your response to me challenging you with my concern for the health and safety of me and J (my co-­worker)?" The response from the training and compliance manager was that the store was staying open and the painting was being completed. As such the complainant's concerns raised in advance of the painting were ignored and he was threatened in respect of his and the store's performance, following the raising of this health and safety concern in respect of the painting of which he had no notice prior to that date. The painting then took place while the complainant and his co-employee worked in the store.

The complainant states that as a result of the painting that took place, the complainant suffered headaches for three days and an irritation to his nose while his co-worker J suffered headaches, dizziness and irritation to her throat and had to be sent home early on the day of the painting. The complainant states that strong white high gloss paint was used in the store that day.

On 23 August 2023, the complainant received an email from the training and compliance manager (who had attended on 17 August 2023), raising issues with the store relating to her visit and mentioning the painting that was 'now also completed'. In this email, members of head office of the respondent were cc'd including the complainant's area manager. The complainant replied by email at 10 am that same morning (cc'ing the same people in his email) responding to the issues raised in respect of the store and also making specific reference to his concerns in respect of the endangerment of his and his co-employee's health and safety in carrying out the painting: "The most concerning of all for me on the 17 of August 2023 is the total lack of respect you the compliance manager had for mine, J's and customers’ health and safety." The complainant outlined what occurred including the health symptoms that J and the complainant had experienced following the painting. The complainant submits that this email constituted both a complaint under the Safety, Health and Welfare at Work Act, 2005 and/or a protected disclosure under the Protected Disclosures Acts 2014-2022.

The complainant states that he never received a response from head office in respect of his concerns raised in respect of health and safety/endangerment of the health and safety of him/his co-worker. However, later that same day (23 August 2023) and after the complainant had sent the email to head office, his area manager (who had been at the store earlier that same day) returned to the store and asked the complainant to accompany her to the back office when she advised him that he was being put on a performance improvement plan (PIP) and that this was the decision of head office.

The complainant states there were no valid reasons for him to be placed on a PIP as he had worked more hours than other staff, had trained in new staff members and had no sick leave. The complainant states that no reviews or any issues were raised regarding audits by the area manager prior to this issue with the painting and therefore feels that the PIP was implemented as a penalisation measure.

The complainant states that he was shocked by this and expressed that this was unfair and that it was a consequence of his email earlier that day (that had, amongst other things mentioned the health and safety concern). The complainant stated to his area manager that the respondent had broken all health and safety regulations the previous week and that the employer's training and compliance manager had criticised/threatened his and/or his store's performance after he raised the concern with the compliance manager, an alleged performance failure/issue that had never been communicated to him before that moment when he raised the health and safety issue. In those circumstances the complainant confirmed that he would not sign the PIP.

The complainant received a response to his email of 23 August 2023 from the compliance manager on  24 August 2023 (again ccing the same individuals from head office as in previous emails above) which offered an apology if the complainant and his co-employee felt disrespected and expressed regret that they had such a horrible experience on the day. She also stated however that, 'Closing the store for painting is not an option, neither is asking the painters to come back for 2-3 hours a few days in a row to facilitate this after store closing." She also stated “To avoid this situation in the future, I will make sure to let you both know well in advance if any work needs to be carried out in store so days off can be arranged if necessary. Again, I do apologise to both of you, your words have shaken me quite a bit. "

The complainant states that despite this apology, he remained on a PIP until January 2024. During this period, he states that he felt undermined and intimidated by the respondent and in particular the manner in which his area manager would, despite the complainant continuing to raise grievances/express frustration and objection in respect of the PIP, arrive unannounced and how she continued to conduct regular PIP reviews despite his continued objections to same.

The complainant states that due to the treatment by the respondent, his mental health suffered and his GP advised him to take some time off work in September/October 2023. However, matters did not improve on his return to work to the extent that he was left with no other option but to send a letter of resignation to his employer on 21 December 2023 and he worked out his notice period until late January 2024.

The complainant submits that he has been penalised by the respondent over a period of some 6 months as a result or raising a concern/complaint relating to the Safety, Health and Welfare at Work Act and/or making a protected disclosure to his employer. He states that this treatment left him with no option but to tender his resignation in December 2023.

It is submitted that the respondent, in response to a safety, health or welfare concern raised by the complainant at work and/or a protected disclosure made by the complainant to the respondent, acted in a manner that affected the complainant to his detriment with respect to the terms and conditions of his employment which amounted to penalisation pursuant to the Safety, Health and Welfare at Work Act, 2005 and in particular Section 27 thereof, and/or penalisation arising from a protected disclosure pursuant to Sections 5 & 12 of the Protection Disclosure Act 2014.

The complainant submits that in the alternative, such penalisation amounted to conduct that breached the relationship of mutual trust and confidence between the parties, leaving the complainant with no option but to resign and rendering it reasonable for the complainant to terminate his contract pursuant to the Unfair Dismissal Act 1977 in respect of a claim of constructive dismissal.

The complainant submits that Section 41(6) of the Workplace Relations Act 2015 provides that a complaint should be presented within the period of six months beginning on the date of the contravention to which the complaint relates. The meaning of these words was fully considered by Hogan J. in Health Service Executive v McDermott [2014] IEHC 331. In that case the complainant was contractually entitled to a salary increase in June 2009 but same was not paid because the Minister for Health and Children, due to the significant financial crisis then affecting the State, refused to sanction the increase. By notice of complaint dated 16 June 2011, the complainant referred a claim under the Act in which he maintained that there had been “unlawful deductions” from his pay between 1 January 2011 and 30 June 2011. The HSE submitted that the claim was time-barred because the cause of action emanated from the Minister's decision in August 2009 not to sanction the increase. Hogan J. observed that the clear and unambiguous wording of subsection (4) was that time ran “not from any particular contravention or even the date of the first contravention, but rather from the date of the contravention ‘to which the complaint relates’.” Hogan J. endorsed the Tribunal's observation that “had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided”.

The complainant asserts that in this instance the contravention is the penalisation rather than the making of the complaint/protected disclosure. The complainant states that in a claim for redress for penalisation, the claim must be initiated within six months of the most recent occurrence of penalisation. The complainant asserts that there are a series of separate acts and/or omissions on the part of the respondent which are sufficiently connected so as to constitute a continuum of penalisation, and in particular the retention of the complainant on a PIP until January 2024.

It is further submitted that a fresh consideration of an issue can bring an act of penalisation within the six-month time limit. In Cast v. Croydon College [1998| IRLR 318the issue was whether the complainant’s repeated requests to work part-time upon her return from maternity leave were simply routinely refused or reconsidered by the respondent college. The England and Wales Court of Appeals held that since the Industrial Tribunal who heard the original complaint had found that they were reconsidered, time should run from the date of the final refusal. The complainant contends that this decision has been upheld in the WRC and Labour Court in decisions such as Cleary v UCD DEC-E2018- 009. 

It was submitted that the complainant remained penalised by the respondent (including remaining under a PIP including PIP reviews) until 26 January 2024 when the complainant ceased working with the respondent and so it is submitted that there was an ongoing breach until that time and that the complaint relates to a time period within the six month prescribed period as the complainant submitted his complaint on 3 May 2024.

Penalisation pursuant to Section 27 of the Safety, Health and Welfare at Work Act, 2005 is defined as including “...any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. ”

The complainant asserts that under the legislation, if it is in issue as to whether a disclosure is a protected disclosure, it is presumed that it is until the contrary is proved. The complainant states that if the respondent is contesting that the disclosure in the within matter is a protected disclosure then it must therefore prove that it is not.

Constructive Dismissal

It is submitted that the complainant being an employee from 19 September 2022 until 26 January 2024 has the requisite service to come within the Unfair Dismissal Acts 1977-2015. The complainant asserts that the tests for constructive dismissal were set out by Lord Denning, MR in Western Excavating (ECC) v Sharp (1978) IRL322, where it is set out that it comprises two tests referred to as the “contract” and the “reasonableness” tests. The contract test is 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”.

The reasonableness test was expressed as: “an employer who 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.

The complainant states that the inappropriate manner in which an employer conducted an investigation was held as sufficient grounds for a finding of constructive dismissal in the case of McKenna -v Peatroc Restaurants Limited UD 2006/1062.

The complainant submits that he made complaints concerning health and safety matters and having regard to the circumstances of the actions of his employer, it is apt to infer from subsequent events that his complaints were an operative consideration leading to him being placed on a PIP and experiencing negative treatment and remaining on a PIP including ongoing PIP reviews until January 2024.

The complainant states that the actions/omissions of the respondent in dealing with his complaint/protected disclosure and its continued penalisation him despite the complainant’s continuing and persistent grievances constituted a breach of a fundamental condition going to the root of his contract of employment. The complainant further states that the actions of the respondent constituted unreasonable behaviour that was so intolerable that the complainant was left with no option but to resign.

The complainant cites the caselaw in the Labour Court decision of Rehab Group -v- Annette Roberts UDD 2026 wherein the Court in considering the reasonableness test, referred to Travers V MBNA Limited UD720 2006 and noted that the Appellant had to display that she had exhausted all internal procedures for dealing with complaints before resigning from the employment. The complainant asserts that while the Court noted that the Appellant had not exhausted all internal processes, consideration was given to other features of the case; the Court noted that it was not surprising that the Appellant felt let down by her employer and was left with no option but to resign.

The respondent states that the complainant has lodged claims as follows:

CA-00063289-001 The complainant has brought a penalisation complaint pursuant to section 28 of the Safety, Health and Welfare at Work Act, 2005 claiming that “On or about 17th of August 2023 the complainant raised a Safety, Health and Welfare concern and/or issue relating to the endangerment to the health and safety of the respondent’s employees….in respect of painting that, he was just informed, was due to take place later that same day in the retail premises.” This complaint is out of time.

CA-00063289-002 The complainant has brought a penalisation complaint for making a protected disclosure claiming that “On or about 17th of August 2023 the complainant raised a Safety, Health and Welfare concern and/or issue relating to the endangerment to the health and safety of the respondent’s employees….in respect of painting that, he was just informed, was due to take place later that same day in the retail premises.” This complaint is out of time.

CA-00063289-004 The complainant has brought a claim of constructive dismissal pursuant to the Unfair Dismissals Act, 1977 claiming that “I had to leave my job due to the conduct of my employer or others at work (constructive dismissal), I have at least 12 months service.”

Preliminary Issue

The respondent raises a preliminary issue regarding CA-00063289-001 and CA-00063289-002,  submitting that, as said claims have been presented outside of the requisite time period pursuant to the legislation, they are statute barred.

CA-00063289-001, CA-00063289-002

The respondent states that these complaints were lodged on 3 May 2024 but in his own complaint form, the complainant states that the complaint was raised on or about the 17 August 2023. Accordingly, it is the respondent’s submission that by his own filing, the complainant failed to lodge this claim within the requisite six months period and therefore the claims are statute barred. The respondent states that no ‘reasonable cause’ was exhibited for the delay in lodging the complaints. In those circumstances, the respondent submits that the complainant has not advanced grounds of ‘reasonable cause’ such as would satisfy any consideration of an ‘extension’ of time beyond the 6 months to 12 months pursuant to the caselaw in Cementation Skanska v Carroll DWT0425.

The respondent further submits that in Salesforce.com v Leech EDA1615, the Labour Court, having referred to the Determination in Cementation Skanska– stated: “It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause.

It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay.”

The respondent submits that the complainant has failed to establish any ‘reasonable cause’ such as would address the fatal shortcomings in his late filing. The respondent states that it does not accept the suggestion offered by the complainant that the penalisation complained of could have “continued” up to his resignation. Furthermore, the respondent does not accept the statements made by the complainant on the complaint form stating that he was penalised by being put on a PIP as a result of his complaint made on the 17 August 2023. The respondent submits for clarity purposes while the complainant has inadvertently stated 17 August in his complaint form and written submissions, the correct date is 18 August 2023.

The respondent submits that these complaints are out of time and statute barred.

Res Judicata

The respondent submits that the complainant is seeking to vex the same claims under multiple pieces of legislation, in breach of the well-established doctrine of res judicata. In this regard, the respondent cites the well settled precedent set out Henderson v Henderson (1842) 3 Hare 100.

The respondent states that with regard to the painting that took place in the store, the complainant did not raise any issues with the Compliance Manager who was at the store on 18 August 2023 and remained in the store until 4.30 pm. The respondent states that the paint used was a water based paint with a low odour and submitted receipts of the invoice for same. It states that on the day that the painting took place, the complainant remained in the store and did not ask to go home. While the complainant has alleged that his colleague J had to go home early on the day in question and left at 3 pm, the respondent states that from its records it can show that J facilitated a transaction at 5 pm in the store.

The respondent further states that the store where the complainant worked is one of its biggest stores comprising over 50 square metres with a front entrance and side entrance, had a good ventilation system and the doors remained open while the painting was going on. The respondent states that the complainant raised no issue regarding the painting with management (no concerns regarding health and safety) from 18 August up until the complainant sent an email at 10.40 on 24 August.  The respondent states that the Compliance Manager apologised to the complainant and J on 25 August if they felt it was a negative experience and if similar work had to be carried out in the future, she would give notice well in advance.      

The respondent states that the Area Manager had already discussed with the complainant issues with regard to the underperformance of the store and that there needed to be an increase in sales. She stated some months the store did reasonably well in terms of KPI’s but most months the store was underperforming. The respondent submitted a document at hearing which it stated demonstrated that the store where the complainant worked was the lowest performing store of all the respondent’s stores in that region.  

The respondent states that the Area Manager had already planned to put the complainant on a PIP to assist with his work performance. In this regard, the respondent submitted an email dated 21 August wherein she is seeking assistance from a HR representative in Peninsula as to how to go about doing a PIP template for the complainant and how best to manage it. The respondent states that prior to the issue regarding the painting, management had sent correspondent to the complainant about the store underperforming vis a vis the other respondent stores in that region.

The Area Manager stated that there is nothing negative about a PIP plan and that it was done in order to assist the complainant with his duties and try and improve the performance of the store. The Area Manager stated that she herself had previously been on a PIP plan and views it as a tool to assist and support a staff member in their work. The Area Manager stated that the complainant refused to sign the PIP plan.

The Area Manager stated that it is noteworthy that a few days after being put on a PIP it is only then that the complainant raises the issue of the painting characterising it as a health and safety concern.

The respondent states that the complainant has failed to state what his disclosure was under the Act and when this was voiced to any employee of the respondent. The respondent asserts that in the complainant’s complaint papers, the complainant has made reference to a comment that was made by him and ignored, which is denied by the respondent. The respondent contends that the complainant has failed to state when and if he raised any concerns relating to health and safety within the respondent.

The respondent states that should the complainant assert that he did raise concerns and be in a position to discharge the onus on him that a disclosure was made, the complainant has failed to state what detriment he suffered.

The respondent also relies on the well-established decision in Paul O'Neill v Toni & Guy Blackrock Limited [2010] ELR 21, wherein the Court held that the detriment complained of must have been imposed for having committed a protected act within the meaning of Section 27(3) of the Act: ‘The detriment giving rise to the complaint must have been occurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that "but for" the Claimanthavingcommitted the protected act he or she would not have suffered the detriment.

This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.’

The respondent submits that in order for the complainant to avail of the protection available in Section 27(3) it is essential that a detriment complained of be causally connected to one or more of the matters referred to in section 27(3) of the act. The complainant must show that ‘but for’ having made a protected act under the subsection the detriment would not have happened.

The respondent maintains that as the complainant has not provided any evidence that a disclosure was made, within the meaning of the 2005 Act, no detriment could have been suffered by the complainant and as such he could not have been penalised in any way, within the meaning of the 2005 Act. The respondent would respectfully submit that the complaint under the 2005 Act be dismissed and determined as not well founded.

CA-00063289-002 The complainant has brought a penalisation complaint for making a protected disclosure. The respondent states that this complaint is out of time. It further states that the complainant did not challenge and did not exercise/exhaust the internal grievance procedure available to him.

CA-00063289-004 The complainant has brought an unfair dismissal complaint under the Unfair Dismissals Act, 1977 claiming that he was constructively dismissed. The respondent maintains that the complainant resigned and was not unfairly dismissed.

The respondent states that the complainant has outlined alleged incidents with different employees during the course of his employment which resulted in his resignation due to alleged inactions from the respondent. The respondent denies the complainant’s allegations. It states that the complainant was always treated in a cordial and respectful manner during the course of his employment up to and including his resignation. The respondent contends that the complainant was put on PIP to assist with improvement in his work.

The respondent states that the complainant was provided with the company’s Employee Handbook including relevant policies and procedures at the commencement of his employment. The respondent maintains that management tried to engage with him to resolve matters. It states that the complainant did not raise a formal grievance regarding his health and safety concerns. It states that the complainant did not raise a formal grievance regarding being placed on a PIP. The respondent states that the complainant resigned without ever engaging in an informal or formal grievance process and this is fatal to his case.

The respondent cites the caselaw in Conway v Ulster Bank Ltd. (UD 474/1981) wherein the Tribunal found that the complainant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints.”

The respondent references the EAT decision in Melinda Pungor v. MBCC Foods (Ireland) Ltd (UD548/2015) where it was held that the complainant’s failure to appeal her dismissal was fatal to her claim for unfair dismissal since there is an obligation to exhaust internal procedures before going external. The Employment Appeals Tribunal stated: “The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.”

The respondent submits that the complainant was fully aware of the grievance procedure in the contract of employment and the employee handbook provided to him.

In conclusion, the respondent denies the claims raised by the complainant, in particular the respondent refutes the allegation of penalisation and related matters and submits that these claims are statute barred. With regard to the constructive dismissal claim, the respondent submits that the complainant has not met the high bar required to demonstrate that he was constructively dismissed. The respondent contends that the PIP was implemented to assist and support the complainant in his work.

At the commencement of the hearing the complainant’s representative clarified that CA-00063289-002 related to a claim of penalisation under the Protected Disclosure Acts. I am satisfied that while said complaint was lodged under the Health Act, 2007, in the narrative of the complaint, reference was made to the complainant being penalised as a result of making a protected disclosure under the   Protected Disclosure Acts.

I am cognisant of the caselaw in County Louth Vocational Education Committee v the Equality Tribunal [2009] IEHC 370 which supports the position that the Complaint Form is not a statutory form and that it is permissible to amend the complaint as long as the general nature of the complaint remains the same. I note that no objection was raised by the respondent on this matter and accordingly I am satisfied that there is no prejudice in this regard.

Preliminary Issue – Time Limits

The respondent raised a preliminary issue submitting that complaints CA-00063289-001 and CA-00063289-002 were referred outside the six month limitation period provided by the legislation

The within claim was lodged with the WRC on 3 May 2024; therefore the cognisable period runs from 4 November until 3 May 2024.  Having reviewed said claims (CA-00063289-001, CA-00063289-002), I find that the claims are outside the 6 month time limit prescribed in the legislation. I do not accept the assertion proffered by the complainant that the penalisation complained of represented a continuum up until the complainant’s resignation.

 I am also satisfied that the complainant has not established ‘reasonable cause’ for the delay in lodging the complaints such that would satisfy any consideration of an ‘extension’ of time beyond the 6 months to 12 months pursuant to the caselaw in Cementation Skanska v Carroll DWT0425.

I am cognisant of the caselaw in Salesforce.com v Leech EDA1615, wherein the Labour Court, having referred to the Determination in Cementation Skanska stated: “It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause.

It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay.”

Accordingly, I am satisfied that the complaints relating to CA-00063289-001 and CA-00063289-002 were referred outside the six month limitation period provided by the legislation. I find that these complaints are out of time and therefore statute barred. In those circumstances, I have no jurisdiction with regard to said claims.

CA-00063289-004 - Constructive Dismissal

The Relevant Law

 Section 1(b) provides as follows:

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

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

The Act places a high burden on a complainant in a constructive dismissal case. To succeed in a claim of constructive dismissal, the complainant must show that his decision to resign in December 2023 resulted from either a repudiatory breach of his contract of employment or such unreasonable behaviour by the respondent that he was justified in believing that he could not continue any longer in that employment. Furthermore, the complainant is required to allow an employer an opportunity to rectify any workplace issues before resigning.

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.”

I note the evidence of the witnesses for the respondent that the Area Manager had contacted Peninsula by email dated 21 August wherein she is seeking assistance from a HR representative as to how to go about doing a PIP template for the complainant and how best to manage it. In addition, I note that prior to the issue regarding the painting, there was correspondence between the complainant and management with regard to sales targets and the store’s underperformance vis a vis the other respondent stores in that region.

I note that while the painting took place on 18 August it is almost a week later that the complainant sends an  email to management on 24 August wherein he raises the issue of a health and safety concern.  

I note that the complainant had objections to being placed on a PIP which he felt was unwarranted and consequently refused to sign off on the PIP. While the complainant alleges that he was forced to resign due to the actions of the respondent and its failure to deal with his concerns, I am cognisant that the complainant worked out his notice into late January 2024.

Based on the evidence heard I find that the respondent had comprehensive policies and procedures in place including grievance procedures.  I find that the complainant did not utilise the grievance procedure for the purposes of addressing his issues nor did he afford the respondent an adequate opportunity to try and remedy/resolve matters with the objective of staying in the employ of the respondent.

Having carefully evaluated the evidence adduced in the within claim and bearing in mind the high bar set in terms of a constructive dismissal case, I find that the complainant has not established that the respondent’s actions were so unreasonable and intolerable that the complainant had no other option but to resign. There is an onus on the complainant to demonstrate that he had exhausted all internal procedures formal or otherwise in an attempt to resolve the grievance prior taking the decision to resign. In that regard, I find that the complainant did not utilise/exhaust the grievance procedures and therefore he  does not meet the high threshold required in a constructive dismissal case. In those circumstances, I find that the complainant was not constructively dismissed by the respondent.

CA-00063289-001- Penalisation complaint pursuant to section 28 of the Safety, Health and Welfare at Work Act, 2005

This complaint is out of time and statute barred accordingly I have no jurisdiction in the matter.

CA-00063289-002 - Penalisation complaint pursuant to the Protected Disclosures Act 2014

This complaint is out of time and statute barred accordingly I have no jurisdiction in the matter.

CA-00063289-004 - Constructive Dismissal

I find that this complaint is not well-founded. I find that the complainant was not unfairly dismissed.

Unfair Dismissals Act, Constructive Dismissal, Safety, Health and Welfare at Work Act, 2005, Protected Disclosures Act, 2014