Complainant

Respondent

Parties

Austin  Lambe

Irish Vintage Scene Ltd

Representatives

  Self-Representative

No Appearance

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-00069012-001

04/02/2025

The Complainant appeared in person. Submissions were received and opened at the hearing.

The Respondent did not appear. However, correspondence was received from the Liquidator, Joe Arkins of Arkins & Company Limited, Unit 15 Galway Technology Park, Parkmore, Galway.

It was the Complainant’s evidence that he was employed by Irish Vintage Scene Ltd for over 12 years in a full-time, permanent role. He described being a diligent employee with an unblemished record.

He submitted his departure from the Respondent was not a voluntary resignation but was compelled by a toxic working environment and intolerable conduct by Mr Tom Heavy, Director of the Respondent. It was his evidence that he left him with no alternative but to leave in order to protect his health. He further stated that the Respondent failed to engage with his reasonable efforts to resolve the matter following his departure.

The Complainant described an incident on 12 September 2024, where a heated argument with Mr Heavey who made insulting and unfounded remarks about his performance. Feeling overwhelmed, he left the office. He submitted that although he mentioned resigning during the exchange, he retracted this statement the following day via WhatsApp which was presented. It was his evidence that a resignation made in the heat of the moment and promptly withdrawn does not constitute a valid resignation. He contended that the employer’s attempt to accept the withdrawn resignation amounted to a repudiation of his contract and constituted a dismissal.

In December 2024, when he requested a P45, the Respondent again treated the situation as a resignation, which he argued contradicted his earlier actions and further confirmed the dismissal.

It was also the Complainant’s evidence that the working conditions and the manner of his dismissal had a severe impact on his health and finance. Medical documentation supporting this claim.

He spent several months on Illness Benefit due to the impact on his health as a result of Mr Heavey treatment of him. In June 2025, he began the initial set up of his own business.

There was no appearance by or on behalf of the Respondent.

After waiting a reasonable period of time, the hearing was opened.

The test for constructive dismissal is set out in Section 1 of the Unfair Dismissals Act 1969, with the burden of proof resting on the employee to establish that either, because of the conduct of the employer, the employee was entitled to terminate their contract, or that it was reasonable to do so.

In complaints of constructive dismissal, the burden of proof lies with the Complainant, who must satisfy two key tests: the contract test (whether the employer breached a fundamental term of the contract) and the test of reasonableness (whether the employer’s conduct was so unreasonable that resignation was the only option).

In this case, the Complainant made no allegation of a contractual breach. Therefore, the issues for consideration are:

Whether the employer’s conduct was so unreasonable that the Complainant was justified in resigning; and

Whether the Complainant acted reasonably by attempting to address his concerns directly with the Director of the Respondent and his line manager, Mr Heavey.

The reasonableness test, which can be relied upon either as an alternative or in combination with the contract test, is where the Respondent conducts its affairs in relation to the Complainant so unreasonably that the Complainant cannot be expected to put up with it any longer. Described as the reasonableness test in Western Excavating (ECC) v Sharp [1978] IRLR 332

The Labour Court in Cedarglade Limited v Hilban UD/17/145 applying the reasonableness test held; “constructive dismissal cases, the Court must examine the conduct of the parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must alert the employer to their situation in order to allow the employer an opportunity to rectify the problem before resigning. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA 474/1981.”

Delving into the reasonableness test further it has been well established that in order for a Complainant to succeed in a constructive dismissal claim, he must first exhaust all internal grievance procedures; Conway v Ulster Bank Limited UDA 474/1981 and Zabiello v Ashbrook Facility Management Ltd. UD1106/2008.

Applying the law to this particular case, it is necessary to examine the events around the Complainant’s resignation. There was a heated argument. The Complainant walked out and said he resigned. He sent a message to Mr Heavey the next morning advising he was attending his GP. Mr Heavey advised that his resignation had been accepted the previous day.  The following afternoon the Complainant withdrew his resignation and submitted a medical certificate.

No evidence was presented to show that the Respondent made any attempt to address the Complainant’s concerns, instead concluding unilaterally on the day that the matter was beyond resolution. The Complainant was not provided with a contract of employment or a grievance procedure.

The reasonable employer would have been expected to conduct themselves in an objective manner and address the concerns according to the procedures set out in S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

The Respondent chose not to attend the hearing to present its evidence. Consequently, I accept the Complainant’s account of the Mr Heavey’s consistent oppressive and demeaning conduct towards the Complainant. I find that the Respondent essentially shut the door on the Complainant and despite notifying before working hours on the following day after he resigned that he was seeking medical advice and subsequently providing a medical cert citing work related stress.

I find the actions and words of the Respondent over a prolong period of time amount to unreasonable conduct for the purposes of Section 1 of the Unfair Dismissals Act 1977.

In conclusion, I find the Complainant was unfairly dismissed from his employment with the Respondent.

I find the Complainant was unfairly dismissed from his employment with the Respondent.

Redress

Section 7 (1) of the Unfair Dismissal Acts 1977 sets out the provision on redress:

“7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and

(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

In assessing the level of compensation to be awarded I note that the Complainant was paid a weekly wage of approximately €732.90 by the Respondent at the time of his dismissal. I find that based on the undisputed medical evidence, I find that the Complainant’s health was directly affected by the Respondent’s conduct in the workplace towards him, having regard to the EAT decision in Liz Allen v Independent Newspaper (Ireland) Ltd, UD 641/2000.

In this regard, I direct the Respondent to pay the Complainant compensation in the sum of €19,055.40 as being just and equitable having regard to all the circumstances.

Unfair Dismissal