Complainant

Respondent

Parties

Ashlinn  Cummins

 The James Aesthetic Clinic Limited

Representatives

Self Represented

Aaron Shearer B.L.

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-00067823-001

02/12/2024

The Complainant made a single claim: a claim for unfair dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended). Dismissal was in dispute. The Complainant was employed by the Respondent as a  facial aesthetics doctor with a monthly salary of €10,541, from the 17th of July 2023 until her resignation which was notified on the 18th of October 2024 and which took effect on the 18th of November 2024.

The Complainant provided a written submission prior to the hearing which made the following points:

1. Introduction I submit this complaint of constructive dismissal under the Unfair Dismissals Act 1977–2015. I was employed as a facial aesthetics doctor at The Aesthetic Clinic from 17 July 2023 until my resignation in late 2024. My resignation was not voluntary but the result of repeated breaches of contract, ongoing workplace bullying, unacceptable clinical standards, and a failure to rectify serious patient safety risks, which cumulatively rendered my continued employment untenable. Despite repeated internal reporting and proposals for improvement, no action was taken by senior management. I was ultimately forced to leave a toxic working environment and accept alternative employment with a significant salary reduction of €36,500.

2. Grounds for Constructive Dismissal

A. Bullying and Hostile Conduct by Clinic Manager (D)

• Repeated unprofessional and hostile conduct by clinic manager, including shouting, eye-rolling, and confrontational meetings.

• Interference in my clinical autonomy and passive-aggressive retaliation after raising concerns about her niece L.

• On 9 January 2024, I was subjected to a hostile ambush meeting. D raised her voice, made faces, and grabbed my phone during the meeting. Her conduct was described by the clinic owner, James Hiney, as "bullying" and "Gestapo-like" in a phone call of apology later that day.

• Following this incident, D ignored and excluded me in the clinic.

B. Patient Safety and Administrative Failures

• Repeated errors by the clinic coordinator L, including incorrect patient bookings, charging errors, failure urgent emails, and failure to respond to patient communications.

• On 3 November 2023, I reported to D my serious concerns about patient safety, including risks of blindness necrosis from mismanaged aesthetic treatments. D failed to act. I escalated to the clinic owner, James Hiney, promised to remove L from her role. This did not occur.

• Numerous patients reported dissatisfaction and a refusal to return due to poor aftercare and clinic mismanagement, satisfaction with my own clinical care.

C. Unsafe and Unhygienic Working Environment

• No rubbish collection organised for months; bags left to rot in a medical setting.

• Clinic left uncleaned, with 40+ dead insects in reception (12 February 2024).

• Basic medical supplies and equipment were frequently unavailable.

D. Failure to Pay Entitlements

• Outstanding annual leave from 2023 (2.5 days) and 2024 (5 days) not paid.

• Mileage claims ignored. On 1 November 2024, I emailed James requesting leave and mileage; the message was deleted WhatsApp thread the following day.

• Not paid on time for my work on 29 March 2024.

• Final pay not received on 29 November 2024.

E. Attempts to Alter Contractual Terms

• In July 2024, I was pressured by MD, the clinic's accountant, into switching to a self-employed contract. I explained the clinic’s poor patient flow and gaps in work hours. This proposal was directly linked to D.

• On 11 July, after I declined to sign the contract, James threatened clinic closure and told me to seek employment elsewhere.

F. Retaliation After Raising Concerns

• Following my complaints, I was removed from the work WhatsApp group (7 November 2024) and subjected to isolated, retaliatory behaviour.

• On 5 November, I was ambushed for a meeting by MD  upon arriving at work, in a clear attempt to intimidate after my request for leave/mileage.

• Signed off on stress leave by my GP on 6 November.

3. Efforts to Resolve Internally

• Numerous verbal and written concerns raised with clinic manager and owner.

• Requests for systems review, patient safety escalation, and operational improvements made repeatedly.

• Maintained a written log of all incidents, including dates, persons notified, and evidence.

Following the delivery of written submission by the Respondent (see below) the Complainant delivered a written rebuttal as follows:

I am representing myself in this matter, and I wish to clarify the circumstances surrounding my resignation, which I maintain amounted to constructive dismissal under both the contract test and the reasonableness test.

1. Professional Duty and Background

I hold a Biomedical Science degree and a Postgraduate Medicine degree. I have worked for years in hospitals dealing with critically ill and vulnerable patients. In joining the Respondent’s clinic, I carried this duty of care and professional obligation to ensure patient safety. My repeated concerns about operational failures, hygiene standards, and patient safety were not personal grievances but stemmed from my professional and ethical obligation to protect patients.

2. Absence of Grievance Procedures

The Respondent has suggested that I failed to follow grievance procedures. However, I was never provided with a company handbook, never informed of a grievance policy, and there was no HR department to whom I could escalate concerns. In such circumstances, the onus is on the employer to provide accessible procedures. Case law, including McCormack v Dunnes Stores (UD 1421/2008), has established that where no effective grievance procedure exists, an employee cannot be penalised for failing to utilise one. In the case of Tara Cassidy vs Bank of Ireland (ADJ-00034191/2022), it was found that engaging in a grievance procedure would have been futile, and the absence of a formal grievance did not defeat the claim. The employee’s resignation was deemed justifiable. In the case of Jennifer Healy vs De Paul (ADJ-00026357/2021), it was found that the employer’s inadequate response to repeated concerns and complaints meant that the employee’s resignation was reasonable, even though no formal grievance had been fully pursued. Another case which resulted in a €40,000 award, Caroline McGarry vs JTI (Ireland) (ADJ-00041399/2023) complaint, it was emphasised that the employer cannot rely on the absence of a grievance procedure where they themselves have ignored or failed to adequately address repeated and serious employee concerns. The award was made despite no grievance being Uiled because their complaints had been consistently disregarded. These cases establish a clear principle: an employee is not obliged to pursue a formal grievance procedure where it would serve no purpose, particularly when the employer has already been made aware of the issues and has failed to act appropriately. However, even at that, there was no formal grievance procedure ever provided to me.

3. Efforts to Resolve Internally From the outset, I raised my concerns with D, the sole manager of Five clinics. When promises of change proved false, I escalated to the clinic owner, James Hiney. He repeatedly reassured me that change was coming — including a new coordinator, a call centre, a monitored phone line, and investment in better operations. None of these materialised. At his instruction, I even kept a detailed log of issues, which I have provided, documenting patient safety risks, operational failures, and instances of bullying by D. These demonstrate my attempts to work constructively before my eventual resignation.

4. Constructive Dismissal – Legal Tests The legal test for constructive dismissal in Ireland derives from two key approaches:

• Contract Test: As per Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, where the employer’s conduct amounts to a repudiation of the contract.

• Reasonableness Test: As applied in Berber v Dunnes Stores [2009] IESC 10, where an employee can resign if the employer’s conduct is such that no reasonable employee could be expected to continue. In my case, the sustained failures — ignoring patient safety concerns, tolerating bullying, and failing to provide safe and functional working conditions — amounted to a repudiation of my contract. Furthermore, under the reasonableness test, no reasonable employee in my circumstances could have been expected to remain.

5. Financial Losses As a direct result of my constructive dismissal, I suffered significant financial losses:

• €36,500 in loss of earnings, as I was forced to accept alternative work at a much lower salary.

• €8,500 in unpaid mileage, which I am still owed. I mitigated my losses by promptly securing new employment, demonstrating my commitment to remain in the workforce.

6. Conclusion I gave the Respondent every opportunity to address my concerns. I tolerated bullying, took on duties outside my role, and waited for promised changes that never came. I was left with no reasonable alternative but to resign. This was not a decision made lightly — I had just purchased a new car for the travel required, and leaving meant a very significant pay cut. No rational person would leave such a salary unless they had no choice. Therefore, I respectfully submit that my claim of constructive dismissal is well founded, supported by both fact and law, and that I am entitled to redress for my financial losses.

Further Rebuttal Points It is also important to correct a factual inaccuracy in the Respondent’s submission regarding the clinic’s operations. The Respondent has stated that the clinic was closed for a period of 5–6 months following my departure. This is entirely untrue. I ceased working at the clinic in November, and within less than a month, another practitioner, [ ], was working there and providing treatments. By February, the clinic was already advertising another doctor, [ ] as its practitioner. Therefore, at most, the clinic was without a practitioner for less than a month, not the 5–6 months alleged. The Respondent also suggests that the operational and communication issues I reported were limited to the initial six months of the clinic’s existence. This is demonstrably false. I raised concerns about unanswered phones and emails persistently from the clinic’s opening through to the time of my resignation, a period of over 15 months. Evidence submitted clearly documents that these issues were consistent, ongoing, and unresolved throughout my employment. The Respondent has implied that my messages to management do not demonstrate a dysfunctional workplace. This is misleading. The sheer volume, frequency, and content of my messages explicitly demonstrate dysfunction at every level. The cooperative tone I used was deliberate: I was attempting to maintain professionalism and to try to make the clinic work despite serious difficulties. The clinic owner, Mr. Hiney, specifically advised me to placate the manager, D, to avoid her further destabilising the clinic. This is why my tone remained professional, even when reporting serious issues. The Respondent has described my evidence as 'Flimsy.' On the contrary, my evidence demonstrates a persistent and serious pattern of dysfunction which directly endangered patient safety and threatened my professional reputation. In aesthetic medicine, complications such as blindness and tissue necrosis are rare but recognised risks, and timely response is critical to prevent permanent damage. This is only possible when patients can contact the clinic without delay. My evidence shows that calls and emails were routinely ignored, and this was confirmed both verbally by patients on a daily basis and in written complaints that I forwarded to management. There was nothing ‘occasional’ about these failures—they were systemic. Finally, I must emphasise that my resignation resulted in a real and demonstrable financial loss. I had no choice but to accept another position at a pay cut of €36,500, something I would never have done but for the Respondent’s persistent failures. This loss, combined with the untenable working environment, makes clear that my decision to resign meets the test for constructive dismissal under both statute and case law.

The Complainant gave evidence on affirmation and was cross-examined by Mr. Shearer

The Respondent delivered a written submission as follows:

1.                   The Complainant was an employee of the Respondent between July 2023 and October 2024. The Complainant has named the James Clinic as the Respondent. The James Clinic is a Business Name but the Complainant was actually employed by the limited company named in the title to these proceedings. There is a separate payroll in respect of the Complainant and the (then) one other employee of the James Aesthetic Clinic and the Complainant was paid by the named company.

2.                   The Complainant was employed in or about July 2023 at an annual salary of €125,000. Her role was that of clinician in the aesthetic clinics which operated at five separate premises in Kilcock, Ferbane, Mullingar, Edenderry and Enfield. Each of those premises also serve as the location of five dental practices trading under the business name “The James Clinic”. Those practices are owned by James Hiney, the person named as Respondent by the Complainant.

3.                   The James Aesthetic Clinic was a start-up business, albeit that it was capable of benefiting, and intended to benefit, from the existing facilities and clientele attached to the dental practices. The Complainant had (and has) a very good reputation as an Aesthetics Doctor and was viewed as the perfect person to lead the start-up business.

4.                   Over the course of the Complainant’s employment, turnover for the James Aesthetic Clinic grew very successfully. At the time the Complainant resigned the business was in a very  healthy position. Because of her resignation, the James Aesthetic Clinic had to cease trading and was only able to re-commence trade again in or about April 2025.

5.                   It is acknowledged that there were teething problems at the commencement of the Complainant’s employment. They were not, however, any more than teething problems and as indicated the Aesthetic Clinic business had become a success by October 2024.

6.                   The resignation of the Complainant was a surprise to Mr Hiney. It also caused the Aesthetic Clinic to be unable to trade for approximately 5/6 months.

7.                   The matters cited by the Complainant as justification for her resignation do not meet the test for constructive dismissal. Additionally, the Complainant failed to utilise the grievance procedures available to her.

Summary of Evidence

8.                   In support of her claim, the Complainant exhibits various text and What’s App exchanges. There are two general comments to be made about many of the messages exhibited. First, is that many are dated in the first six months of the Complainant’s employment, through to January 2024. It is acknowledged that there were some issues at the commencement of the business – in terms of readying the premises, organizing the phone lines, driving patient engagement – but these were not problems of a particularly pronounced nature. Of the messages exhibited by the Complainant, there is a much lesser volume from February 2024 through to October 2024 (when the Complainant resigned) and whilst some issues arose (as they do in every job) it is clear that most problems were not recurring problems and where problems did recur, they were not of an employment-ending nature.

9.                   Secondly, the tone of the text messages very much reflect a collective approach to solving such problems as there may have been. The tone of the messages is not for the very most part confrontational and they do not, it is submitted, speak to a dysfunctional workplace or working environment. The messages certainly do not substantiate the allegation of bullying made by the Complainant against D, the dental Practice Manager.

10.               Appendix Bis an e-mail exchange between the various parties in or about March 2025. To a large extent the e-mail exchange speaks for itself. What one might expect to see in a constructive dismissal case is a tension in the dealings between the parties. Such a tension is not evident either from these e-mails or the messages exhibited by the Complainant.

11.               In her Claim Form the Complainant identifies bullying by D as the primary basis for her resignation but makes other allegations, citing, for example, concerns she alleges to have had about patient safety, about poor clinic hygiene and about inadequate administration of the clinic by the clinic coordinator, Lauren. In relation to the first and second of these three matters, the evidence adduced by the Complainant is at best flimsy. For the most part, any issues highlighted by the Complainant in respect of hygiene relate to the first number of months of her employment and are not in any way reflective of an ongoing or serious issue. The photos shown at best reflect the position in one location on one day early in the employment relationship. As regards Lauren’s performance, monitoring of L’s call responses indicated that the percentage of calls unanswered by her was significantly less than counterparts of hers within the dental practices run by Mr Hiney. If there were occasional issues with performance, they were just that, occasional.

12.               One particular matter which the Complainant does not cite in her Claim Form as a reason for her resignation, but which she has otherwise sought to attach weight to is a conversation she had in or about July 2024 about a change in her employment status to that of a self-employed contractor. The first point to make is that there was no change to the Complainant’s employment status and she continued to be an employee. The second point to note is that the conversation complained about was in fact flagged to the Complainant at the commencement of her employment as one which would take place after twelve months of employment had passed. It is not tenable that a conversation flagged twelve month in advance and which resulted in no change to the Complainant’s terms and conditions can be a basis for a constructive dismissal claim.

13.               Somewhat unusually, the Complainant cites a number of matters and incidents (complaints about mileage and holiday pay, removal from a what’s app group and interactions with MD) which post-date her decision to resign as additional evidence in support of her constructive dismissal claim. The Respondent disputes the Complainant’s evidence in these regards but what is clear is that matters arising after the date of resignation did not inform the decision to resign and cannot be evidence which validates or endorses that decision.

14.               The Respondent absolutely disputes that there was conduct or that there were omissions which justify the Complainant’s decision to resign or which prove a claim in constructive dismissal. To reference a classic formulation of the legal test for a constructive dismissal – there is no evidence that the Respondent was guilty of conduct which was a significant breach going to the root of the contract of employment, or which shows that the Respondent no longer intended to be bound by one or more of the essential terms of the contract.

15.               However, there are two other fundamental issues which, it is submitted, wholly undermine the Complainant’s case.

16.               Of central consequence is that fact that the Complainant did not utilise the mechanism available to her under the company’s Grievance Policy to seek to have her grievances aired and, if necessary, for remedial action to be taken. [A Copy of the Respondent’s Employee Handbook was attached to the submission].

17.               More fundamentally still, the Complainant left because she had another job. The Complainant contends that she was forced to accept a job with a lesser salary and has exhibited one payslip as proof of her new salary. The Respondent has sought (and submits the Complainant is bound to provide) details of all work done by her and all income received by her since she resigned from her employment with the Respondent in mid-October 2024. Whilst not accepting that there has been a constructive dismissal of the Complainant, there is, the Respondent expects, no actual, or very little, loss in this case in any event.

Summary of Legal Arguments

18.               The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Limited v. Sharp [1978] ICR 221. This test was endorsed by the Labour Court in Paris Bakery & Pastry Limited v. Mrzljak DWT1468. It comprises two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. The above UK case summarised the ‘contract test’ 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 as discharged from any further performance”.

19.               Thus, there needs to be a repudiatory breach on the part of the employer which can arise from a single act, but which must be sufficiently serious to justify the employee resigning. It is not enough that the employer’s conduct is unreasonable. The bar is much higher. It must amount to a fundamental breach of the contractual employment terms such that the employee can treat the contract as at an end by reason of the employer’s repudiatory conduct.

20.               The guidance given for deciding if there has been a breach of the implied term of trust and confidence is set out in another UK case Malik v. BCCI; Mahmud v BCCI 1997 1 IRLR 462 where Lord Steyn said that an employer shall not “…without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

21.               The test of whether there has been a breach of the implied term of trust and confidence is objective. There is no breach of trust and confidence simply because the employee subjectively feels that such a breach has occurred no matter how genuinely this view is held. The legal test entails looking at the circumstances objectively, i.e., from the perspective of a reasonable person in the complainant’s position (Tullett Prebon PLC v. BGC Brokers LP [2011] IRLR 420, CA).

22.               The burden of proof lies with the Complainant to show that her resignation was justified in all the circumstances. In order to establish that there was a constructive dismissal, the Complainant must show that:

there was a fundamental breach of contract on the part of the employer;

the employer’s breach caused the employee to resign; and

the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.

23.               In Frenkel Topping Limited v. King UKEAT/0106/15/LA it was reiterated that the bar is a relatively high one. The strength of the implied term is shown by the fact that it is only breached if the employer demonstrates objectively by its behaviour that it is abandoning and altogether refusing to perform the contract. In no objective sense in this case can it be determined that the Respondent either abandoned or refused to perform the contract.

24.               The Respondent submits that it fulfilled its contractual obligations, implied and/or otherwise, at all times. Accordingly, it is the Respondent’s position that the termination of the Complainant’s employment fails on the contractual test to be a constructive dismissal.

25.               Regarding reasonableness, it is the Respondent’s position that there exist two interwoven factors to be considered:

(a) Did the employer 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.

26.         This test assesses the conduct of the employer 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.” as per Lord Denning MR in the above mentioned case of Western Excavating v Sharp.

27.         According to the Supreme Court in Berber v. Dunnes Stores [2009] ELR 61, Finnegan J stated “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is as such that the employee cannot be expected to put up with it.”

28.         Even if it were the case (which is denied) that the conduct of the Respondent’s staff at work was such that the Complainant had to leave her job as alleged, the Complainant failed, refused and/or neglected to raise a grievance either informally or formally. Whilst not admitting that a valid grievance arose (that matter required investigation before such an admission could be made) the Respondent maintains that the Complainant acted in a hasty and unreasonable manner by resigning from her position before notifying the Respondent, and specifically Mr Hiney, of her concerns and in advance of exhausting internal procedures. 29.         In the case of Murray v. Rockavill Shellfish Limited, it was affirmed that: “It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must first pursue his grievance through the procedure laid down before taking the drastic step of resigning.”

30.         In UD142/1987 Beatty v. Bayside Supermarkets it was noted that: “The Tribunal considers that it is reasonable to expect that 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 474/1981. In this case the Tribunal considers that procedure was not followed by the Claimant and that it was unreasonable for him not to do so. Accordingly, we consider that applying the test of reasonableness to the Claimant’s resignation he was not constructively dismissed.”

31.         It is well established in this context that there is a reciprocal duty on an employee to act reasonably in terms of affording an employer the opportunity to address any issues. In Conway v. Ulster Bank Limited UD 474/1981 the Employment Appeals Tribunal stated that “the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints”. The Respondent did not violate any term of the contract or its policies. The Respondent did not act in any manner that would constitute “a repudiation of the contract of employment” and the Complainant has not demonstrated “that the Respondent no longer intended to be bound by the contract.”

32.         The Respondent relies on 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 employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

33.         Desmond Ryan aptly describes the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is imperative almost always in employee resignations.”

It is denied that the Complainant was constructively dismissed and denied that the Complainant has suffered a loss.

Substantive Issues

Prior to April 2024, the Complainant made numerous complaints to the Mr. Hiney the proprietor of the Respondent regarding her working conditions, including the lack of administrative support, and what she perceived as hostility towards her by the Clinic Manager and the quality of the service that was being provided to clients. She relied to support her evidence on messages and emails which detailed the issues together with a log of issues which she had been asked by Mr. Hiney to maintain. She said that promises were made to her that everything would improve and that additional support would be put in place. The Complainant continued to work in the hope that the promised improvements would come about. However, in April 2024 that the Complainant first indicated to Mr. Hiney that she thinking of leaving. She indicated the same to the Respondent’s accountant, MD.

Matters came to a head for the Complainant in October of 2024. the Complainant discovered that a person, whom she thought was going to be recruited to provide administrative support,  was not hired and had not even been interviewed. The administrative problems were continuing without improvement and also at this time the Complainant found out that a package addressed to her had been opened without her permission or knowledge by the Clinic Manager. The Complainant said in evidence that she realised then that after eleven months of complaining, not one single issue was being addressed. In a meeting with Mr. Hiney on Friday the 18th of October the Complainant outlined the foregoing problems to Mr. Hiney and she also said that she couldn’t work with the Clinic manager.  When Mr. Hiney asked the Complainant if she was leaving, she said that she was, and he said that he completely understood and that he wished her the best of luck. However, about half an hour to an hour later, Mr. Hiney returned to talk to the Complainant again. This time he asked her not to leave. He acknowledged that he had promised to fix the problems, and he asked the Complainant to give him a bit more time, that he would get it sorted. The Complainant said “I have to stop you there. I have accepted a job somewhere else. I can’t continue to work like this”. At this Mr. Hiney said that he was sorry to see the Complainant go and he then asked her not to leave him short regarding outstanding work. The Complainant confirmed her resignation the following Monday by way of email dated the 21st of October 2024.

The cross-examination of the Complainant sought to cast doubt on the alleged gravity, frequency and immediacy of the issues raised in evidence by the Complainant. It was also put to the Complainant that the decision to resign was based on the Complainant having found a more suitable employment. 

As to whether the issues raised by the Complainant were of such sufficient gravity and immediacy as to justify her resignation, the fact that the Respondent did not offer oral evidence to rebut the factual basis of the issues prevents any substantive finding other than the acceptance of the Complainant’s uncontroverted evidence that she raised what she perceived to be serious issues with her employer before she resigned.

The issue as to the motivation for the Complainant’s resignation was put to her based on events which took place after her departure from her employment and was based on speculation, which speculation the Complainant rejected. This leaves a situation where the uncontroverted evidence of the Complainant was that she had serious issues which she said caused her to resign. In circumstances where no evidence was offered by the Respondent, I accept that this was the case. However, by analogy with a mirror-image scenario where an employee is dismissed, the assessment of that situation requires an examination not only of the substantive reasons behind the dismissal but also of the procedures which led to it. In the present case I accept that the Complainant had subjective substantive reasons for her resignation but before that resignation can establish a constructive dismissal  there is also the question as to how she sought to have these issues addressed and whether she herself followed fair procedures by giving the Respondent an adequate opportunity to address them.

Procedural Issues

The Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify her terminating her employment. The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““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 termination to the employer.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] IRLR 332. The Labour Court decision as cited by Respondent in Tusla v Flynn UDD1810 (2018), (approving and adopting the dicta of Denning MR in Western Excavation) provides a helpful summary of the essential elements of a constructive dismissal as follows:

“Firstly, Section 1 of the Act envisages two circumstances in which a resignation will be considered constructive dismissal. This arises 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 resign his position, often referred to as the “contract test”. This requires that an employer 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” as held in Western Excavating (ECC)Ltd v Sharp. 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/she] is justified in leaving.”

Although there are two distinct tests, the contract and reasonableness tests, the two may be combined.

The Role of the Grievance Procedure in Constructive Dismissal Cases

Redmond’s Dismissal Law, [third edition Paragraph 19.14], notes that

“there is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations.“

In Conway v Ulster Bank Ltd UD 474/1981, (Kerr and Madden 2nd Ed p. 105) the E.A.T. found that the employee had not been unfairly dismissed by way of constructive dismissal and held that the employee “did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints”.

Notwithstanding the general principles laid down in the Conway case and set out in Redmond’s Dismissal Law, there are exceptions to the requirement to use, and thus by extension to exhaust, the employer’s internal procedures.

In A Worker (Mr O) (complainant) v An Employer (respondent) (No.2) [2005] 16 E.L.R. 132 the Labour Court stated.

“The court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal (see Allen v Independent Newspapers [2002] E.L.R. 84; May v. Moog Ltd [2002] E.L.R. 261 and Monaghan v Sherry Bros [2003] E.L.R. 293. See also the determination of this court in New Era Packaging v A Worker [2001] E.L.R. 122).”

The Court went on to uphold the claim for constructive (discriminatory) dismissal and in doing so held that in that case the employee’s failure to initiate a grievance was not fatal to his claim.

“There are a number of factors which, in the exceptional circumstances of this case, excuse the complainant’s failure to formally complain to the respondent before resigning. First, the respondent did not have a grievance procedure in place. Secondly, the offending conduct was perpetrated by the principals of the respondent who knew or ought to have known what its likely impact would be on the complainant having regard to his temperament and mental fortitude. Thirdly, the complainant condition was such as to require him to avoid confrontational or stressful situations and this was known or ought to have been known to the respondent.”

The circumstances and findings made in the exceptional cases mentioned by the Labour Court are as follows:

In Allen v Independent Newspapers [2002] E.L.R. 84 the E.A.T. found that the claimant's conclusion that she could have no confidence in the respondent to either properly or effectively address her grievances was a reasonable conclusion in all the circumstances.

In May v Moog Limited [2002] E.L.R. 261 the E.A.T (by a majority) held that:

”in the exceptional circumstances of this case, the claimant's resignation due to the state of her health was reasonable. Her failure to use the grievance procedure because she felt ‘isolated and depressed and could cope with no more either physically or mentally’ is not fatal to her claim in the exceptional circumstances outlined.”

In Monaghan v. Sherry Brothers [2003] E.L.R. 293, the E.A.T upheld the claim where:

“the grievance procedure and/or the disciplinary procedure was hopelessly inadequate in all the circumstances”

In New Era Packaging v A Worker [2001] E.L.R. 122) the Labour Court, in upholding a claim for constructive discriminatory dismissal noted:

“the court is satisfied as a matter of fact that the claimant was recurrently subjected by her male colleagues to inappropriate conduct, including comments and expressions, of a sexually explicit nature amounting to sexual harassment. This offended against the claimant's dignity as a woman and caused her anxiety and stress. The court is further satisfied that the respondent knew or ought to have known that this was occurring and failed to take any or adequate action to protect the claimant”

The Labour Court found that:

“…every employer has a duty to take all reasonable steps to ensure that that employees are protected from sexual harassment in the course of their employment. In the present case the respondent had manifestly and persistently failed to discharge that duty to the claimant as a result of which she was unable to continue in her employment without suffering continued indignity and putting her health and welfare at risk. In the court's view she was reasonably entitled to treat her contract of employment as having been repudiated by her employer”

The decision turns on a finding of fact that the Complainant was exposed to repeated sexual harassment and that the respondent knew or ought to have known that such was occurring.

In Travers v MBNA Ireland Limited, UD720/2006 the Employment Appeals Tribunal stated that:

“…in constructive dismissal cases it is incumbent for a [Complainant] to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”

The requirement to have recourse to the internal grievance procedure is not absolute but will apply as per the Travers decision: “unless good cause can be shown that the remedy or appeal process is unfair”.

The Complainant cited McCormack v Dunnes Stores (UD 1421/2008), which she submitted “has established that where no effective grievance procedure exists, an employee cannot be penalised for failing to utilise one”. The determination of the E.A.T contains no such finding. In dismissing the constructive dismissal claim (by a majority), on the basis that the Claimant had not met the threshold required to establish constructive dismissal, the EAT stated:

“In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in Section 6(1) of the Act.

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 employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

Leaving this case aside, the general proposition - such as it was framed in the Complainant’s submission - that a grievance does not have to be initiated where no effective grievance procedure exists - is inapposite as a grievance procedure did exist. Moreover, although she had, subjectively, no confidence in the Respondent’s ability to conduct a grievance process, the Complainant has no basis to say that the procedure was ineffective as she did not use it.

Cassidy v. Bank of Ireland ADJ 00034191

In this case the adjudicator noted that the complainant raised her issues by email with senior management which demonstrated the ongoing confusion in relation to the terms of the complainant’s contract.

Healy v. De Paul ADJ-00026357

In this case the Complainant raised a formal written grievance and the finding in the Complainant’s favour turns on the fact that the Respondent’s response to this formal grievance was flawed.

McGarry v. JTI (Ireland) Limited ADJ-00041399

In upholding the claim for unfair dismissal notwithstanding the failure to pursue a formal grievance the adjudicator noted that the employee had written a detailed letter of complaint addressed to the respondent’s People & Culture Director which referred to historical issues and the complainant’s dissatisfaction with a performance review. It also disclosed the complainant having had an anxiety attack after the performance review meeting, having been prescribed additional medication and the complainant’s anxiety symptoms having recurred since the performance meeting. The Complainant also referred to an occupational health review which had been recommended but had not taken place. In upholding the claim, the adjudicator placed considerable emphasis on this written complaint by the employee.

It is noteworthy that in each of the above cases, the complainant employee submitted written complaints which were inadequately handled by the respondent employers.

The Complainant accepted that she was issued with a contract of employment which she signed. The following text appears in the first page of that contract:

“The policies and procedures contained in The Company employee handbook, as amended from time to time, should be read in conjunction with these terms and conditions. The employee handbook does not constitute contractual terms and may be amended, revoked, or added to at any time at The Company's sole discretion. Familiarise yourself with these policies and procedures and take all necessary steps to ensure that they are properly observed. Particular attention should be paid to The Company's disciplinary policy, grievance policy, and equality policy in order to be familiar with your rights and responsibilities under these. Where there is any conflict between this contract and the handbook, the contract will supersede the handbook.”

The Respondent’s handbook contains a specific chapter providing policies and procedures together with a grievance procedure. This grievance procedure provides for an initial informal procedure which is to be followed, if the initial informal procedure does not satisfactorily resolve the grievance, by a more formal procedure requiring the provision of “a written statement outlining the nature of the grievance”. 

It was put to the Complainant, and she accepted that the Respondent’s handbook contained a series of policies and a grievance procedure. However, the Complainant said that she never saw the handbook and the only document she ever received from the Respondent was the contract. The Complainant accepted that she did not ask for the handbook but she said that as it transpired, she did follow the grievance procedure anyway by bringing her issues to the attention of the owner of the business. She posed the question as to who else the grievances would have gone to only the owner of the business.

In the present case there were no formal written complaints apart from text messages and emails identifying issues and problems. Those messages do not constitute a detailed written complaint as was envisaged by the grievance procedures in the Respondent’s handbook. There is a clear reference to the grievance procedures in the contract of employment. The Complainant accepted that she signed that contract and she is thus deemed to have been aware of its meaning and content including the references to grievance procedure set out in the company handbook and this is so even though she was not given a copy of the handbook. As regards the Complainant’s resignation itself, the Complainant said that she delivered her resignation verbally to Mr. Hiney in a one-to-one meeting on Friday the 18th of October 2024. Her uncontroverted evidence was that she outlined the reasons for her resignation and that Mr. Hiney said that he understood the situation. However, after an interval Mr. Hiney approached the Complainant again and asked her to reconsider and in doing so the Complainant said that he made a promise that he would address her issues. The Complainant said that she reaffirmed her decision to resign. A weekend intervened and on the following Monday the 21st of October 2024, the Complainant sent an email to the Respondent as follows:

“Please accept this letter as formal notification of my intention to resign from my position

as aesthetics doctor with The Aesthetic Clinic. In accordance with my notice period, and

following my notification to James on Friday 18th of October, my final day will be

November 18th.

I would like to thank you for the opportunity to have worked in the position for the past

year and three months.

During the next month I will do what I can to make the transition as smooth as possible,

and will support in whatever way I can to hand over my duties to colleagues or to my

replacement. Please let me know if there is anything further I can do to assist in this

process.”

The Complainant did not make a written complaint setting out all her issues prior to resigning verbally to Mr. Hiney on Friday the 18th of October 2024. Although Mr. Hiney verbally accepted the resignation, a short time later he asked the Complainant to reconsider which she declined to do. Even if the Complainant resigned in the ‘heat of the moment’ as it were on Friday the 18th of October 2024, she still had the weekend to think about that decision, and she could have reconsidered as Mr. Hiney had suggested on Friday the 18th. Instead, following the weekend she confirmed her decision in writing in unequivocal and unconditional terms. Her resignation email made no reference to any previous complaints and indeed thanked the Respondent “for the opportunity to have worked in the position for the past year and three months”. The only further engagement suggested was regarding managing the transition during the Complainant’s notice period and there was no suggestion express or implied, that the door remained open for further discussions whether by means of the formal grievance procedure or otherwise.

In the present case the Complainant’s contract made specific reference to a grievance procedure but the Complainant did not seek to invoke this procedure by providing a written statement of her grievances before resigning. There is a distinction between verbal complaints, even those accompanied by a threat to resign, and a formal written communication. The latter is a form of conflict escalation which is well-established in law and practice as reflected by the decisions discussed above. Its deployment has the effect of putting beyond doubt and on a formal footing the fact that the employee is aggrieved and seeks a satisfactory outcome. Applying the analogy as between a constructive dismissal and its mirror image, an actual dismissal, it can be seen that if the Complainant had been dismissed on the basis of a series of oral complaints and threats of dismissal without recourse to a disciplinary procedure it is highly improbable that any such dismissal, even if the substantive reason was sound, would survive challenge. For the same reason the claim of constructive dismissal in the present case cannot succeed because of a fundamental breach of procedure by the Complainant. Although there are cases of constructive dismissal which have succeeded despite a failure to have recourse to an internal grievance procedure, those cases are exceptional, and I find that the facts of the present case are not so exceptional as to justify the Complainant’s failure to deliver a written grievance before resigning. Returning to the formulation laid down by the Labour Court in Travers v MBNA Ireland Limited UD720/2006, where the obligation to utilise all internal procedures was held to apply “unless good cause can be shown that the remedy or appeal process is unfair”, I find in the present case that the Complainant did not invoke the grievance procedure and thus she cannot allege and accordingly has not shown good cause that the grievance procedure was unfair. Neither do I find any other exceptional circumstances which would have relieved the Complainant of the obligation to make some form of written protest at the very least, before resigning and claiming constructive dismissal.

My overall conclusion is that although the Complainant in her evidence has established that she made numerous complaints, that promises to address them were not kept, and that this situation led her to resign her employment, the Complainant has not established that she had good grounds for her failure to initiate a formal written grievance of any sort prior to resigning and for this reason her constructive dismissal claim is procedurally flawed and cannot succeed.

Accordingly, I find that the Complainant was not unfairly dismissed.

CA-00067823-001 - The Complainant was not unfairly dismissed.

Constructove Dismissal - Western Excavating (ECC) Ltd -v- Sharp[1978] IRLR 332 - Conway v Ulster Bank Ltd UD 474/1981, (Kerr and Madden 2nd Ed p. 105) - A Worker (Mr O) (complainant) v An Employer (respondent) (No.2) [2005] 16 E.L.R. 132- Allen v Independent Newspapers [2002] E.L.R. 84 - May v. Moog Ltd [2002] E.L.R. 261 - Monaghan v Sherry Bros [2003] E.L.R. 293. New Era Packaging v A Worker [2001] E.L.R. 122 - Travers v MBNA Ireland Limited, UD720/2006 - McCormack v Dunnes Stores (UD 1421/2008) - Cassidy v. Bank of Ireland ADJ 00034191 - Healy v. De Paul ADJ-00026357 - McGarry v. JTI (Ireland) Limited ADJ-00041399