Complainant

Respondent

Parties

Lisa  Kearney

Circle K Ard Services Ltd

Representatives

Mr. Brian Kavanagh, IBEC

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-00067356-001

13/11/2024

The Complainant was employed with the Respondent from 12 April 1999 until the 9 May 2024 when she resigned her employment.  The Complainant contended that she was constructively dismissed by the Respondent, having been treated in such a manner that she was left with no other choice but to resign from her position.

The Respondent refuted the claim in it’s entirety and contended that the cessation of employment did not meet the burden of proof to substantiate a claim for constructive dismissal. 

In her complaint form, the Complainant submitted that she had been working with Circle K for nine years and nine months as a manager and on the HR recruitment team.  She confirmed she had received a scholarship to do a degree which she completed in 2018, receiving a merit.  She stated that she completed the degree while running a site and as a mother and that she was always extremely career orientated and a driven individual. 

The Complainant submitted that after completing her degree she got a job on the HR recruitment team which she thoroughly enjoyed and that then she went on maternity leave.  She submitted that after returning to work in January 2022, she was placed in the Circle K Thomond shop, one of the most challenging sites in the network, which she ran successfully for a year and 10 months, and that she moved to Circle K, Ballysimon when it became available, as it was logistically closer to her home and her children’s school.  She stated that after a few weeks of supporting her manager, Mr Hargreaves at this store, she acquired Circle K, Ballysimon in September 2023.

The Complainant stated that to say the site came with an array of challenges was an understatement but from the moment she arrived she gave it her everything to try and support her manager.  She stated that the site had a history of failing cash audits so there was continued pressure to try to turn that around.  She submitted that in January 2024 she failed a cash audit, and a performance improvement plan was put on her file.  She submitted that this was because Mr Hargreaves needed to be seen to be doing something, but that in fact there did not seem to be anything to worry about.  She stated that Mr Hargreaves said he would get (Iwona) a senior site manager to support her in those areas as it was extremely challenging to pass a cash audit in the busiest, most profitable store, in the area.  The Complainant submitted that Iwona came for a few support visits but then went out sick and so she had no support.  She stated that the external cash auditor came again in March 2024 and subsequently the store failed that cash audit.  The Complainant submitted that she had annual leave booked for the first week in April 2024, returning on 9 April 2024, and that upon her return she spoke to Mr Hargreaves in the morning and that he said he would be over for a chat in the afternoon. 

The Complainant stated that Mr Hargreaves came to the Ballysimon store on the afternoon of 9 April and that they met in the office.  She stated that Mr Hargreaves told her that there were a few issues on the site while she was away, with two staff members shouting at each other in front of customers.  She stated that he advised her that she had also failed the cash audit and that she was not coping with the site and because of this he was going to transfer her to a different location.  She stated that Mr Hargreaves said he would give her a few days to digest the information and that he would come back and meet her again on Friday 12 April 2024 to talk further about the issues.

The Complainant stated that she was distraught and emotionally broken as to how she could work so hard for a company to progress her career, and then with no warning or support, have that ripped away.  She stated that she went to work for the rest of the week stressed, upset and worried about money and the logistics of the new location, the shame of a demotion and the impact on her esteem and confidence. 

The Complainant stated that she met with Mr Hargreaves in store on 12 April and that he had asked her if she had thought further about the discussion that had taken place the previous Tuesday.  She advised that she had a few questions to ask as follows:

1.      What if I don’t agree to the move?

2.      Where am I to be moved to?

3.      When is the move happening?

4.      What about my salary?

The Complainant confirmed that Mr Hargreaves advised her that she had no choice in relation to the move, that he would move her to Corbally (a very small store) and that the move would happen by the end of the month and that it would be clean cut for the new financial year.  He confirmed that her salary would remain the same and that the location might suit her better given that she had children and she would be under less pressure.  The Complainant submitted that the meeting ended, and she tried to finish her shift but that she had to go to the doctor due to the stress she was under.  She stated that later that evening she furnished Mr Hargreaves with an email and her medical certificate, confirming she was unfit to work.  She stated that she tried to cope with being demoted and her career and everything she had worked so hard for being ripped away, the shame of the demotion in front of her peers and colleagues.  She stated she started going to therapy and subsequently decided to resign as she couldn’t continue to face working inside the building again due to the stress of the demotion.

The Complainant confirmed that she resigned her position on 30 April 2024, and it was not acknowledged until 14 May 2024.  She submitted that the financial pressure this put her and her family under was immense and that she did not receive her termination date until June 2024 and that unlawful deductions were made from her cessation salary.  She stated she had no choice but to resign from her position as she had a very successful career with Circle K up until transferring to a site where she alleged bullying and a toxic environment had been tolerated, and where there was a high level of manager turnover due to that environment. 

The Complainant submitted that she had tried her best to support her senior manager but unfortunately due to events beyond her control while she was on holiday, these had somehow cost her the career she had worked so hard for over 9 years with Circle K.  She stated that she had always been ambitious and hardworking and did not deserve a punishable transfer because the Respondent wanted to use her as a scapegoat at the cost of her career.  She stated that she did not feel she was fairly treated, and she had no other choice but to resign due to Mr Hargreaves actions. 

Witness evidence – The Complainant:

The Complainant gave evidence that she requested a transfer to Ballysimon upon her return from leave in 2024 and that she was spoken to on 9 April 2024 in relation to a cash audit and staff fighting while she had been on leave.  She stated that she was just back from leave a few days and she confirmed that she was always a high performer and achiever but that she was scapegoated for things that happened while she was away.  She confirmed that she had asked Mr Hargreaves what would happen if she did not agree to the transfer and he confirmed that she had no choice and that she was obliged and contracted to accept a move and that she could be transferred at the discretion of the Respondent.  She confirmed that Mr Hargreaves advised her that her salary would remain unchanged but that she would move to Circle K at Corbally. 

She stated that the Ballysimon shop was a flagship store and that it was clearly a demotion to be transferred to that site.  She stated that it could not be considered to be a positive move.  She confirmed that she had worked for almost 25 years with Circle K and that when the performance improvement plan was put in place, supports were meant to be provided to her, but that these did not happen.  She stated that she had three children with profound needs and that this was not even considered.  She stated that the Ballysimon shop was a toxic environment within which to work and that it had been thus before she arrived. 

Under cross examination the Complainant gave evidence that she had worked at Circle K in Thomond prior to Ballysimon.  She confirmed that she expressed interest in going to Ballysimon in September 2023 and that it suited her due to her family commitments.  She confirmed that she was granted the transfer and that it was seen as a positive move because it was a significant operation and considered to be a flagship store.  She confirmed that the performance improvement plan was put in place in February 2024 and that one of the targets was about passing the cash audits.  She confirmed that she initially had bi-weekly calls with Iwona but that Iwona subsequently broke her leg and sothat support was no longer available.  She confirmed that although she had regular calls with Mr Hargreaves thereafter, these were not the weekly support calls that were envisaged by the PIP. 

The Complainant confirmed in her evidence that an audit took place while she was away on annual leave and that the shop failed that audit.  She confirmed that upon her return from annual leave she had a short meeting with Mr Hargreaves of approximately 30 minutes duration and that he advised her of the issues that had occurred while she was away and that these included the failed cash audit and the altercation between two staff members in front of members of the public.  The Complainant confirmed that Mr Hargreaves put the option to her around a move to another store and advised her that he would give her an opportunity to think about it and meet her again within a few days.  The Complainant further confirmed that she met with Mr Hargreaves again on 12 April 2024 and that he advised her he had to be seen to be doing something, and he further advised her that no decision in relation to a response to the failed cash audit would take place in her absence.  The Complainant stated that at the second meeting she was told by Mr Hargreaves that she had no choice in relation to the move, that she was being transferred to the Corbally shop and that the transfer would take place at the end of the month.  She stated that this left her with two weeks within which to change her whole life.  She stated that she viewed the move as a demotion and that while the job title and the status and pay remained the same, it was clear that the head count in the shop was completely different , that this was a much smaller store and that the move would be viewed by colleagues as a demotion. 

The Complainant gave evidence that the Ballysimon store had lots of issues and had a toxic culture when she joined.  She stated that it was fully understood at all levels of management that there was a problem in the store and she was advised that her role as the store manager was to primarily deal with employee issues and challenges.  She stated that there had been numerous meetings between herself, Mr Hargreaves and Ms Murphy to consider how best to address toxic issues in the workplace.  She stated that when an employee raised a grievance, efforts were made to resolve the grievance.  She stated that staff were very familiar with the procedure. 

The Respondent Representative asked why she herself had not used the grievance procedure in circumstances where she had such familiarity with using it.  She stated that on 9 April she had been told that she was not fit for purpose and that she was being moved and that she did not invoke the grievance procedure because she was not fit to engage due to her stress reaction to the incident that had taken place. 

The Respondent Representative asked the Complainant how she had been able to resign in circumstances where she was unfit to engage and the Complainant advised that this was because she had already made the decision that she would never darken the door of the employment again. 

The Respondent Representative put it to the Complainant that Ms Murphy had followed up in writing in relation to her resignation and that she had not acknowledged that correspondence.  She confirmed that she had chosen not to engage with the Respondent and that she did not want to engage with the Respondent.  She accepted that she had submitted certs but that the certs had not mentioned stress and had said acute medical illness and she accepted that the Respondent would not have been aware of the detail of her illness from those certs. 

The Complainant confirmed that after the meeting on 12 April she had attempted to finish her shift, but she became so distressed she had a panic attack on the day and that she attended the doctor.  She stated that it was only after her resignation that the Respondent was made aware of those issues. 

Concluding remarks:

The Complainant stated that she never expected to be here, that the Respondent had a duty of care not to make her feel not accepted in the workplace and to feel that punitive measures were taken against her.  She stated that the meeting that took place with Mr Hargreaves was not a conversation about the possibility of moving to another location.  She was in fact told she had to go and that she had no choice in the matter.

The Respondent submitted that the Complainant was engaged by the Respondent in the role of Store Manager under the Respondent’s standard-form “Store Manager Contract of Employment and that the position carried an annual salary of €47,499.  By email correspondence dated 30th April 2024, the Complainant tendered her resignation with immediate effect.

The Respondent outlined the following sequence of events:

·       That in September 2023 the Complainant put herself forward to move to the Ballysimon store. Throughout this time, there was ongoing performance related issues that included audit failures, performance managing, supporting, and adhering to stock taking procedures.

·       That in February 2024, a performance management plan was put in place and the Complainant was given support from Senior Store Manager Ms. Iwona Perec Chrapek. Throughout this time, it was reported to Neil Hargreaves (Sales Market Manager South West & Limerick) that the Complainant would not engage with this support, and as such further failed to perform duties.

·       That on 9th April 2024, the Complainant returned to work from Annual Leave.

·       That on 12th April 2024, Mr Hargreaves met with the Complainant to explore a potential opportunity in Corbally. At that meeting the Respondent outlined certain performance concerns together with concerns for the Complainant’s wellbeing. In view of those matters, it was suggested that redeployment to a smaller store would more appropriately accommodate the Complainant’s responsibilities and continued professional development.

·       That shortly thereafter, Mr Hargreaves received an email from the Complainant enclosing a medical certificate (12th April 2024 until 19th April 2024) indicating an acute illness (

·       That a further medical certificate was issued to the Respondent (20th April 2024 until 1st May 2024) for an acute medical illness.

·       That on 30th April 2024 the Complainant stated, ‘I am now writing to you to tender my resignation from my position at Circle K, effective immediately taking account of my notice on sick leave’.

·       That on 10th May 2024, Mr Hargreaves noted receipt of the resignation, advised the Complainant of the grievance procedure, offered the Employee Assistance Programme and offered an invitation for a meeting. The Respondent drew specific attention to the following content from that correspondence;  ‘I can confirm receipt of your e-mail dated 30th April 2024, unfortunately, your e-mail was caught in our IT Mimecast system therefore I did not receive it until 9th May 2024.We note receipt of your resignation. We would ask you to reconsider your position in Circle K and have attached a copy of the grievance procedure. You can reach out to your HRBP, Sara Murphy (copied), for more information. Your well-being is of utmost importance to us and note the concerns you have highlighted that have led to your decision. I would like to extend an invitation for a meeting at your earliest convenience. This meeting would provide an opportunity for us to discuss further your concerns and offer any suitable support to you. Additionally, we would encourage you to utilise our Employee Assistance Programme (attached) which is a 24/7, free and confidential counselling service for all employees.

·       That on 14 May 2024, the Complainant acknowledged receipt of the Response from Neil Hargreaves.

·       That on 16 May 2024, Sara Murphy HR Business Partner sent a follow up email to the Complainant, asking her to consider the opportunity for a meeting. The Respondent drew attention to the following specific extract from that email, ‘Hi Lisa, I hope this email finds you well, I write following the below, I wish to see if you have had the opportunity to consider the meeting invitation as highlighted in Neils e-mail? I look forward to hearing from you’.

·       That on 24th May 2024 the Complainant sent an email confirmation stating ‘I felt I had no alternative but to resign I would appreciate your assistance in finalising some items. If you could let me know how I transfer my VHI and my Pension? Also, if you could advise me on the day my outstanding holiday balance will be paid.’

·       That on 27th May 2024, Sara Murphy confirmed the Complainant’s resignation and noted that she did not receive any contact from the Complainant prior to her resignation and she would have been available to support with any concerns.

·       That on 21st June 2024, the Complainant sent an email looking to receive pay and quarterly bonus.

·       That on 26th June 2024, the Respondent replied to the Complainants request and sent the corresponding payslip

·       That on 13th November 2024, the Complainant submitted her claim to the Workplace Relations Commission.

The Respondent noted  Section 1(b) of the Unfair Dismissals Acts, 1977 – 2015 (as amended) which defines dismissal in relation to an employee as, inter alia: “the termination by the employee of his contract of employment with his Respondent, whether prior notice of the termination was or was not given to the Respondent, in circumstances in which, because of the conduct of the Respondent, 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 Respondent”. The Respondent submitted that in light of this definition, and established principles adopted by the Tribunal and the Courts, there exists a burden on the employee to demonstrate that:

(a) The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the Respondent, or

(b) The Respondent had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

The Respondent submitted that it is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. The Respondent further submitted that it was the Respondent’s position that neither criterion has been met.

In relation to the contractual test the Respondent submitted that at all times it operated within the terms of the contract of employment between the parties. No contractual violation occurred. The Respondent noted that in her claim form the Complainant stated ‘I tried to cope with being demoted’ and submitted that the Complainant was never demoted. The Respondent further submitted that had the transfer transpired the Complainant would have retained exact grade, title, salary, and benefits. And that a site move was within contractual mobility and was not a demotion and could not be a repudiatory breach. The Respondent drew attention to the explanation of the contractual test for constructive dismissal as set out in Conway v Ulster Bank, UD474/1981 to confirm this position, in that the Respondent did not violate any term of the contract or organisation policies, express or otherwise. The Respondent’s actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the Respondent no longer intended to be bound by the contract”. No change occurred in the contract to make it “so radically different from what was before”.

The Respondent submitted that it fulfilled its contractual obligations, implied and otherwise, at all times and that in light of this, it was the Respondent’s position that the termination of employment failed on a contractual test to be a constructive dismissal. It was the respondent position that the move was proposed for discussion and that no ultimatum issued at any stage.

In relation to the Reasonableness test the Respondent outlined it’s position that there exist two interwoven factors to be considered:

a)      did the Respondent act unreasonably so as to render the relationship intolerable, and

b)      did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures.

The Respondent submitted that this approach was supported by established approaches as expressed by the Tribunal, for example in McCormack v Dunnes Stores, UD 1421/2008, where the Tribunal stated: “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her Respondents. The employee would need to demonstrate that the Respondent's conduct was so unreasonable as to make the continuation of employment with the particular Respondent intolerable”.

Reasonableness: the conduct of the Respondent

It was the Respondent’s position that it acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct.

Reasonableness: Exhausting Procedures

The Respondent submitted that it had a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). The Respondent drew attention to Section 6 of the Respondent’s handbook which deals with dignity at work. And outlined its position that in advance of the Complainant furnishing her resignation, she could have notified the Respondent of any concerns she had in relation to her employment and could have utilised internal procedures to resolve any grievance, which she failed to do. The Respondent submitted that the Complainant was given an opportunity to reconsider her resignation on two occasions, first with Mr Neil Hargreaves (Area Manager) on 10th May 2024 and with Ms Sarah Murphy (HR) on 16th May 2024, but she did not do so

The Respondent maintained that the Complainant acted in a hasty and unreasonable manner by resigning from her position before notifying the Respondent of her concerns and in advance of exhausting internal procedures and that as such, the Complainant did not act reasonably in resigning her employment as she had not previously “substantially utilised the grievance procedure to attempt to remedy her complaints” (Conway v Ulster Bank).  The Respondent submitted that the obligation to exhaust internal grievance procedures extends even in situations whereby there exists a purported breach of contract and cited the case of Travers v MBNA Ireland Limited, UD720/2006 where the Complainant’s role was changed by the Respondent in a manner which was “not in keeping with the contract of employment”. The Complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. In that case the Tribunal found: “The claimant did not exhaust the grievance procedure made available to him by the Respondent and this proves fatal to the claimant’s case” and stated: “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

The Respondent submitted that just as it is unacceptable in the case of a non-constructive dismissal for a Respondent to dismiss without recourse to fair and comprehensive procedures, so to it is insufficient for an employee to claim herself to have been constructively dismissed without utilising and exhausting grievance procedures. The Respondent stated its position that the Complainant failed to establish the burden of proof that her actions were reasonable and that as in Travers v MBNA, it was the Respondent’s position that the Complainant’s failure to utilise/exhaust internal grievance procedures was detrimental to her claim.

The Respondent submitted that the Complainant failed to provide the Respondent an opportunity to fully respond and investigate her concerns by failing to utilise any of the formal channels to seek to address any issues she may have had.  The Respondent cited the case of Fitzsimons v Mount Carmel Hospital, UD855/2007 and noted that in that case, in the Complainant’s letter of resignation a complaint was raised against the Complainant’s manager. The Respondent conducted a “full investigation” and extended an invitation to return to work. The Respondent further “was open to meeting requests and provisions which may reasonably attach to the said return to work” and an offer was made to “bring in a mediator to facilitate a harmonious return to the workplace if that was possible”. The Complainant rejected the offer of return on the grounds that her relationship with her manager had deteriorated so much. In deciding on the case the Tribunal stated: “It is regrettable that this final step [of acceptance of the return-to-work offer] was not taken and the Tribunal finds it was unreasonable for the Applicant not to have seen this process through. The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties.” The Respondent submitted that by virtue of this, the Complainant’s resignation did not fulfil the test of reasonableness and thus could not be determined to be a constructive dismissal.

It was the Respondent’s position that it neither acted unreasonably nor did it breach the Complainants terms and conditions of employment such that the Complainant could legitimately resign and seek relief for constructive dismissal. The Respondent submitted the following:

·       That the Complainant did not give the Respondent an opportunity to work with her to resolve any outstanding concerns as she resigned from her employment.

·       That the Complainant was unreasonable in failing to return to work and in failing to engage with the Respondent to address any outstanding complaints.

·       That the Complainant failed to exhaust internal procedures, a fact which is well established to be fatal to a claim for constructive dismissal.

The Respondent cited the case of Jabczuga v Ryanair Limited UD66/2013 where the EAT stated: “The claimant in this case failed to fully engage with and exhaust the grievance procedure available to her. In resigning in circumstances that a claimant asserts amount to constructive dismissal, such claimant must act reasonably. This includes affording her Respondent an adequate and reasonable opportunity to address and remedy any grievance. By resigning before the grievance procedure had run its course the claimant did not afford this opportunity to the Respondent and the Tribunal is satisfied that she did not act reasonably in so doing. Accordingly, this claim pursuant to the Unfair Dismissals Acts, 1977 to 2007 fails”.

The Respondent noted that the Complainant’s submission also referred to a  bullying and a toxic environment and noted her comment ‘I had no choice but to resign from my position as I had a very successful career with Circle K up until transfer to a site where bullying and a toxic environment was tolerated. There was high manager turnover due to this environment.’  The Respondent rejected this characterisation in its entirety and noted that no formal dignity at-work complaint had ever been lodged concerning Mr Hargreaves. The Respondent submitted that in the absence of any supporting evidence, the contention that the Respondent fostered a toxic culture or used the Complainant as a scapegoat was unsubstantiated and should be dismissed.

Redress

The Respondent submitted that if the Complainant was found to be constructively dismissed, it was requesting that compensation be the appropriate redress given in the circumstances.

The Respondent noted that the Complainant had not provided any evidence of her losses or her trying to mitigate such losses. The Respondent noted that following her resignation, the Complainant obtained alternative employment as Centre Manager at Castletroy Shopping Centre and that her LinkedIn profile recorded that she commenced this role within a short period after 30 April 2024, the date on which she resigned from the Respondent.

The Respondent advised that the Adjudicator must be conscious in calculating the level of compensation, that due consideration must be taken in regard to the efforts of the Complainant to mitigate her losses and suggested that those efforts would not meet the standard as set out by the Tribunal in Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a claimant who finds themselves out of work should employ a reasonable amount of time each weekday in seeking work.

Representations at hearing:

The Respondent representative noted that the Complainant was claiming constructive dismissal and submitted that the Respondent rejected the claim in its entirety.  He stated that for a constructive dismissal to have taken place would require a fundamental breach of contract and unreasonable conduct on behalf of the Respondent.  He stated that it also required of the Complainant to utilise the internal procedures to address any concerns she might have had.  He stated that in the alternative, the Complainant had resigned her position without giving any opportunity to resolve matters and had made no attempt to engage with the internal procedures.  He stated that such a failure was detrimental to her claim and in those circumstances, he submitted that the Adjudication Officer should dismiss her case of constructive dismissal.

Witness evidence – Mr Hargreaves:

Mr Hargreaves confirmed his role as the Category Manager since January 2025 and confirmed that prior to that he had been the Area Manager with the Respondent since 2014.  He confirmed that when the Complainant took up the position, he saw her as somebody who had great strengths in terms of leading people and that she would have done very well in bringing along the team in terms of a challenging site and in terms of further developing that team.  He gave evidence that at the time when she took up position, a number of cash audits had already been failed.  He confirmed that the Complainant did not manage to address that and she in turn failed cash audits.

Mr Hargreaves confirmed that audits take place twice a year and that they are quite intensive.  Mr Hargreaves gave evidence that the audits went through the administration processes on site, the management of staff purchases, the stock take procedures and he stated that the audit was business critical and the purpose was to identify any loss to the business.  He stated that sometimes losses arose from fraud and other times it was through lack of management systems. 

Mr Hargreaves confirmed that he had a performance review meeting with the Complainant in February 2024 and that he advised her that she needed to focus her attention on the stock take and on making sure she was ready for it in a timely fashion.  He stated that at the time he put a performance improvement plan in place and that he had engaged the assistance of Iwona to help with processes in terms of booking things in and out.  He stated that the Complainant was aware of the expectations on her to pass that audit.  He confirmed that he received feedback from Iwona following her meetings with the Complainant and it was Iwona’s view that the Complainant was not fully engaged and that the team themselves were not performing as the Complainant or indeed the Respondent would wish. 

He confirmed that he did recall speaking the Complainant on 9 April regarding the ongoing issues and the failed audit and that he outlined to her the potential implications.  He also confirmed that as part of that discussion he talked to her about employee issues in the workplace and the impact of the stress in that environment on her.  He confirmed that he agreed with her that he would allow her to go to work in a quieter store.  He stated that the meeting that took place took approximately 15 minutes.  He confirmed that he suggested to her that this was what would be done and that he had highlighted to her that there would be no change to her contract or her salary and that he did highlight to her that there was a mobility clause in her contract, that is often used by the Respondent.

He confirmed that by the time he got home that evening he had received an email from the Complainant with a sick cert attached.  He confirmed that he immediately let HR know about the email and that before any further action could be taken, the Complainant issued her resignation on 10 May.  He stated that the move was never enforced as she never returned to work.  He stated that he believed that the Respondent had acted fairly and that the Complainant had looked for various work times to facilitate her family matters and that any matters raised by her were followed up on. 

Witness evidence – Ms Murphy:

Ms Murphy confirmed that her role was HR Business Partner and that she worked closely with managers, providing guidance on a host of HR issues and that she was working in the area for approximately two years.  She confirmed that the Respondent had a grievance procedure in place and that there was a confidential structure through Share Point where staff could access the procedures and processes, not just for the grievance, but for making appeals and she stated that it was accessible to all managers.  She also confirmed that there was a Dignity at Work procedure in place and she confirmed that all of those matters were covered at induction and training and that there were also posters, familiarising people with the procedures. 

Ms Murphy confirmed that when she received the Complainants resignation from Mr Hargreaves in May 2024, she immediately sent an email to the Complainant looking to engage in relation to the issues that she had raised.  She stated that she got no response until she received the final email from the Complainant in relation to queries regarding pay.  She stated that the Complainant had worked with the Respondent for over nine years and that in such circumstances she would have looked to resolve the issues and retain the Complainants talent in the business but that she received no further contact.

Respondent concluding remarks:

The Respondent noted again that the Complainant had resigned and had never afforded the Respondent the opportunity to address any matters of concern that she might have and that she should have engaged with the Respondent in relation to those matters.  The Respondent also noted that the Complainant had secured new employment and sought details of same. 

I have given careful consideration to the submissions provided by the parties, together with all supporting documentation, and to the case law relied upon by the parties.  I have also taken account of the witness evidence given under oath/affirmation and have made my own enquiries in order to fulfil my obligation to fully investigate the matters before me.

It is settled law that there are two distinct tests for constructive dismissal, and they are known as the “contract test” and the “reasonableness test”. (Ref Western Excavating (ECC) Ltd v Sharp IRLR 27 and Conway v Ulster Bank UD474/1981).  Both require the employee to discharge the burden of proof; but they are separate tests.  In a claim of constructive dismissal, the Adjudication Officer must determine if the employee has met either test. While an employee may be able to satisfy both tests, they are not required to meet both tests and there is no combined test of repudiation and reasonableness.

Contract Test

Western Excavating (ECC) Ltd v Sharp summarised the contract test as: “If an 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 as discharged from any other performance.”

Reasonableness Test

Western Excavating (ECC) Ltd v Sharp also stated that the reasonableness test provides that the conduct of the employer should be assessed and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”  The reasonableness test requires an assessment of the employer’s conduct and the extent to which the employee sought to utilise the internal procedures and raise their concerns.

Application of the legal tests to this case:

This case relates specifically to circumstances which occurred relating to concerns outlined by the Complainant in relation to her treatment by the Respondent arising from meetings with her manager, Mr. Hargreaves, on 9 and 12 April.  She alleged that she was advised that she was to be unilaterally moved from her role/location of work to, what she considered to be, a demoted role in a location much further away from her home.  She alleged that this was done in a manner which she considered to be unfair and detrimental to her personal circumstances, that she had the care of 3 children with profound needs and that the Respondent was aware of her situation.  She attributed those issues to her ultimate resignation, in circumstances which she described as no longer tolerable.  The question that arises here is whether or not the Complainant was constructively dismissed either by repudiation of her contract or if it was reasonable for her to resign.

Contract test

I noted that the Complainant had a contract of employment that provided for the right of the Respondent to move an employee to another location, and I noted that the Respondent relied on that clause in relation to the move proposed to the Complainant.

Having considered the submissions, and in particular, the evidence of the Complainant and Mr. Hargreaves at hearing, I consider it common case that there were historical issues in the store in relation to failure of audits and in relation to staff behaviour.  It was evident that management in general, including the complainant and HR, were seeking to address those matters.  I noted that the Complainant took over the position as Manager in the store in September 2023 and I noted that her PIP document of February 2024 showed a 7% improvement on the previous audit, albeit the store had still not passed.  I noted that the manager put in place support from another manager, which was intended to take place every 2 weeks and I noted that while this support occurred initially it did not continue due to unforeseen circumstances.

The events that gave rise to the meetings in April occurred while the Complainant was on holidays: firstly, an audit took place and the store failed the audit, and secondly, an altercation took place between two staff members in full public view.  While I agree that both of these issues are unacceptable it is difficult to understand how the Complainant could be held accountable for the staff altercation when she was not present. 

In any event, the first meeting took place on the day of her return from leave, and she was advised of the events described above.  It appears she was not asked to account for those issues or given any opportunity to respond or defend herself.  The evidence of both parties bears this out.  Where the parties disagree is that the Complainant stated that she was advised that she was to be transferred to another store because she was not coping.  On the other hand, the Respondent submission merely stated that the Complainant returned from annual leave on that date and only referred to a meeting taking place on 12 April where “it was suggested that redeployment to a smaller store would more appropriately accommodate the Complainant’s responsibilities and continued professional development.”

In that regard I noted that Mr. Hargreaves gave evidence that he did hold a short meeting with the Complainant upon her return to work on 9 April, that he advised her in relation to the failed audit and the staff altercation and further, that he agreed with her that he would allow her to go to work in a quieter store.  He also gave evidence that he suggested to her that this was what would be done and that he had highlighted to her that there would be no change to her contract or her salary and that he did highlight to her that there was a mobility clause in her contract.

I did not find Mr. Hargreaves evidence credible in relation to that meeting. If he had reached agreement with the Complainant in relation to the move, why would he need to meet her again 3 days later and why would he need to point out the existence of the mobility clause in the contract.

Instead, I have formed the view that Mr. Hargreaves had made up his mind that the Complainant should move and he planned to hold a second meeting with her in order that she would accept that position.

I do not accept the Respondent position, as outlined in it’s submission, that the move as discussed on 12 April “would more appropriately accommodate the Complainant’s responsibilities”.  The Complainant had the care of 3 children with profound needs, the Respondent was fully aware of those circumstances and being sent to another location some distance from her home could hardly be described as appropriately accommodating her responsibilities.

However, while I consider Mr. Hargreaves treatment of the Complainant to have been sub optimal, the question that arises here is whether or not it amounts to a repudiation of contract.  Repudiation of a contract occurs when a party indicates, through their words or their actions, either their unwillingness or their inability to fulfil their contractual obligations.  It is clear from all the evidence presented that, however unacceptable the new role was to the Complainant, she was to remain as a Store Manager, at the same grade and on the same pay.  Furthermore, it was a condition of the contract that a manager could be moved to another location at the discretion of the Respondent.  In all these circumstances I must find that there is no repudiation of contract in this instance.

Reasonableness Test

I have outlined under the contract test above my views in relation to the meetings which took place on 9 and 12 April between the Complainant and Mr. Hargreaves.  I am in no doubt that the Complainant had cause for complaint and that, in my view, Mr. Hargreaves was over-zealous in his reactions to events that occurred in early April.  However, the Respondent made contact twice with the Complainant to seek to engage with her to resolve those matters and in so doing, demonstrated reasonableness in relation to the matters involved and in relation to demonstrating an openness to resolving those matters.

However, it is clear to me that the Complainant had clear knowledge and understanding of the Respondent’s grievance procedure and could have lodged a grievance against Mr. Hargreaves decision to transfer her to another location.  While I can appreciate that it would have been challenging for her to have responded positively to Mr. Hargreaves invitation to meet, it seems to me that she had an ideal opportunity when Ms. Murphy reached out to her to make contact to have her issues addressed.  The fact that she did not do so is fatal to her complaint of constructive dismissal.  Given, that the Complainant, by her own admission, did not follow up with Ms. Murphy because she “had already made the decision that she would never darken the door of the employment again” I must conclude that the Complainant did not act reasonably and provide the Respondent with an opportunity to resolve matters.

As the Complainant has not demonstrated repudiation of contract and did not act reasonably to provide the Respondent with an opportunity to resolve matters within the internal procedures, I find that her complaint of constructive dismissal is not well founded.

I found that the Complainant had not demonstrated repudiation of contract and had not acted reasonably to provide the Respondent with an opportunity to resolve matters within the internal procedures.  In those circumstance, I found that her complaint of constructive dismissal was not well founded, and I decide accordingly.

Constructive dismissal