UDD2535

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00033539 (CA-00044397-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 13 September 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 3 June 2025.

The following is the Decision of the Court.

DECISION:

This is an appeal by Daniel Hughes (“the Complainant”) against a Decision of an Adjudication Officer given under the Unfair Dismissals Act 1977 (“the Act”) against his former employer Action Alarm Control 24 (“the Respondent”).

The Adjudication Officer found that the complaint was not well founded.

The Complainant lodged an appeal of that decision and two other appeals HSD2517 and PDD2513 to the Labour Court. A hearing scheduled on 27 November 2024 was adjourned to allow the parties to lodge further submissions. All three appeals were heard on 3 June 2025. The Court heard evidence from the Complainant and three witness for the Respondent company – Aaron Mooney, Managing Director, Pat Moloney, Director and Sean Leavy, Technical Operations Manager.

1. Background

The Respondent operates in the security industry providing intruder alarm and monitoring services to domestic and commercial premises. The Complainant worked as an Alarm Control Operator in the Respondent’s monitoring centre. 

On 21 December 2020, the Complainant was reported as a Covid-19 close contact and left the workplace shortly thereafter. The Respondent contends that he did so without authority. The Complainant contends that he did not attend work on the advice of his GP. He submitted a medical certificate stating that he was unfit to attend work from 21 December 2020 to 4 January 2021.

On his return to work, the Complainant was issued with a Final Written Warning of 12 months duration. The Final Written Warning was reduced to six months duration on appeal, which was accepted by the Complainant on 4 February 2021.

On 10 February 2021, the Complainant instigated a grievance in relation to the disciplinary process and in relation to the denial of a trial promotional opportunity.  On 8 March 2021, the Respondent informed the Complainant that it considered the matter closed.

The Complainant resigned his employment on 9 April 2021, citing constructive dismissal.

2. Complainant summary position and testimony

On 21 December 2020 the Complainant was advised that he was a close contact of someone in the control room where he worked and he immediately sought the advice of his GP. His GP advised him that by law he was required to self-isolate for 14 days. He informed his manager Sean Leavy that he was legally required to isolate for 14 days and that he felt unsafe returning to work as he may have an infectious disease. He contacted the Health and Safety Authority (HSA) on 23 December 2020 who explicitly stated to him that he was to self-isolate for 14 days and not to go to work.  On 24 December 2020, the CEO contacted him to say that he was required to attend work. The Complainant offered to work from home, but his request was denied. The Complainant submitted a doctor’s certificate once his doctor was able to sign the certificate due to Covid protocols.

On 4 January 2021 the Complainant was asked to a meeting to discuss his leaving the workplace on 21 December 2020 without authorisation, his refusal to return to work and his alleged behavior at a management meeting. There was no investigation into those matters.  On 13 January 2021 he was issued a final written warning, which was to remain on his file for 12 months.  An appeal hearing took place on 20 January 2021. The final written warning was upheld but the time on his file was reduced to 6 months.

On his return to work, the Complainant was not allowed to work in the control room. He was stopped from entering the control room by a supervisor who stated he had been told by management not to let him in. On 10 February the Complainant was advised by Sean Leavy that he would not be considered for a trial supervisor role as he was in receipt of a final written warning.

On 10 February 2021, the Complainant lodged a grievance about the outcome of the disciplinary appeals process and that denial of the opportunity to perform in an acting supervisor role. He felt penalised, as well as prejudged and undervalued. After some back and forth, the Complainant provided the details in writing on 24 February 2021.  The appeal was denied on 8 March 2021.

Due to the stress of the entire situation, the Complainant went to a medical professional who concluded he was suffering symptoms of work-related stress. The Complainant submits that he exhausted all internal procedures, right up to appealing his grievance, and was penalised at work for raising health and safety concerns. He did not believe it was a safe work environment for him, and he had no choice but to terminate his own employment in writing on 9 April 2021.

This Complainant’s contract of employment was fundamentally breached through unfair sanction, lack of process, exclusion from promotion and unsafe treatment. The employer's behaviour was so unreasonable that he had no option but to resign.

The Respondent repeatedly pressured him to return to the workplace and ignored medical and public health advice. No consideration was given to the Complainant’s legal obligations. The employer failed to conduct an investigation at any stage rendering the disciplinary process, disciplinary appeal process and grievance appeal procedurally unfair. The final written warning and ban on promotion were fundamentally flawed. The grievance process lacked impartiality as the CEO, who sent the coercive messages to him December 2021, conducted the disciplinary process and oversaw the grievance process, which was unfair. There was a failure to investigate the allegation of bullying. The Complainant suffered workplace stress. The medical report indicates that he was effectively forced to resign due to clear cumulative mistreatment.

3. Respondent - summary position and testimony

On 21 December 2020 one of the control room staff tested positive for Covid-19. Three others, including the complainant, were reported as close contacts. A management meeting was conducted to discuss the situation, during which the Complainant entered the room abruptly to say that he had spoken to his doctor and was leaving work to go home.

The Respondent arranged for all staff (approx. 60) to be tested for Covid-19 at a private test centre that day or the next. The Complainant and his colleague arrived together after the test centre had closed. Both employees subsequently tested negative. The Complainant undertook an HSE test which was also negative, as was a second HSE test taken seven to ten days later.

The CEO spoke with the HSE on or around 23 December and informed the Complainant that, as an essential service, once a staff member has tested negative, had no symptoms and could be provided with a safe and isolated workplace that it was acceptable to continue coming into work. The CEO made numerous calls and texts to the Complainant to advise him that it was a safe environment and pleaded with him to return to work, as they were an essential service.

The Complainant was due to work on 24 and 25 December 2020 but submitted a doctor’s certificate for the period from 21 December 2020 to 4 January 2021. A disciplinary meeting was held on 7 January 2021 in relation to the Complainant leaving the workplace on 21 December 2020 without authorization, unreasonably refusing a lawful request to return to work, failing to cooperate with Covid testing arrangements and breaching the Dignity and Work policy by disrupting a management meeting on 21 December 2020. No investigation was conducted prior to the disciplinary meeting on 7 January 2021 as the facts were not in dispute. On 13 January 2021, the Complainant was issued a final written warning of 12 months duration by the CEO, Aaron Mooney. The duration of the final written warning was reduced to 6 months by Pat Moloney on appeal.

Prior to these events, the Complainant and another employee were under consideration for a supervisory position. As neither had the required skills set, the Respondent was prepared to give them both a trial period to see if this was a role they would be interested in applying for. The other employee commenced the trial period first on 23 November 2020. In early February 2021, Sean Leavy informed the Complainant that his trial would be delayed until the final written warning expired. 

On 10 February 2021 the Complainant advised that he was raising a grievance about the disciplinary process and outcome, and about the decision not to afford him the opportunity to perform in the acting supervisor role as planned. The grievance was sent six days after signing acceptance of the appeal decision.

The Complainant was asked to outline the basis of each of his grievances within 3 working days. He was advised that as he had already accepted the outcome of the disciplinary appeal, any grievance in relation to that matter should only address some aspect of the process not determined as part of the appeal. Nevertheless, any grievance would be considered on its merits. On 23 February 2021, the Complainant advised that the grievance would be submitted the following day. The Respondent agreed to extend the deadline for submitting the grievance.

On 24 February 2021, 12 days later, the Complainant set out ten points in an email. Sean Leavy replied the same day saying that he deemed eight points were closed. As the Complainant had raised a new allegation of bullying, he was asked to provide details of this complaint within seven days. On 7 March 2021 the Complainant requested a formal appeal by someone “completely impartial and unconflicted”. On 8 March 2021, Sean Leavy wrote to the Complainant to say that as he had not provided any additional information as requested, the matter was deemed closed.

On 7 April 2021, the Complainant cleared his locker. On 9 April 2021 he resigned by email citing “breach of contract”, “feeling unsafe” and a “constructive dismissal”.

There was no breach of contract.  The Complainant’s assertion that the Respondent failed to follow close contact procedures or breached health and safety legislation is refuted. The Respondent company is an essential service. The company operated in compliance with HSE guidelines.

The Respondent put in place processes, facilities (including private testing facilities) and arrangements in accordance with the guidelines to provide a safe working environment.  All HSE guidelines were followed. Once a staff member tested negative, had no symptoms and could be provided with a safe and isolated workplace it was acceptable to continue working. Only staff who had contracted Covid-19 worked from home, as there was a limited number of remote kits at this time. Furthermore, because of the nature of its work, it cannot operate a monitoring centre remotely.

The matters relating to the rights or wrongs of the company’s position concerning the complainant’s non-attendance over the Christmas period should not be considered as part of this complaint. Those matters were the subject of a disciplinary process, and the Complainant accepted the outcome of that process.

The company has always acted professionally. The Complainant’s behaviour was unreasonable. The Complainant failed to exhaust all procedures. Unlike the Complainant, the Respondent replied quickly to all matters raised by the Complainant. The Respondent deemed all matters to be closed on 8 March 2021.  The Complainant never raised any matters relating to his medical status or any other matters before he resigned.

4. Relevant Law

Section 1(b) of the Act defines a constructive dismissal for the purposes of the Act as follows: -

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

Section 6(1) of the Act states:

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

5. Deliberations and Findings

The Complainant contends that this is a classic case of constructive dismissal as his contract of employment was fundamentally breached through unfair sanction, lack of process, exclusion from promotion and unsafe treatment. Furthermore, he contends that the employer's behaviour was so unreasonable that he had no option but to resign.

To succeed in that claim, the Complainant must show that his decision to resign resulted from either a repudiatory breach of his contract of employment (the “contract test”), or such unreasonable behaviour by the Respondent that he was justified in believing that he could not continue any longer in that employment (the “reasonableness test”). Furthermore, the Complainant is required to allow an employer an opportunity to rectify any workplace problems before resigning.

The Complainant resigned his position by email on 9 April 2021 citing constructive dismissal. The email stated as follows:

“I am writing to confirm that I will be resigning from my role with immediate effect and due to the reason for my resignation, I will not be in position to provide a notice period.

I would like it be known I am resigning due to a breach of contract and feeling unsafe in my work environment which has affected my emotional health. I consider not following the close contact procedure to be a breach of my contract and health and safety legislation and believe this to be constructive dismissal.

I raised a grievance about this issue on 10/02/2021 which wasn't satisfactory in resolving this matter. The way I was treated throughout the whole process including both disciplinary and grievance processes is further evidence as to why I feel unsafe in the work environment.”

The Complainant contends that the termination of his employment meets both the contract test and the reasonableness test.

Was there a repudiatory breach of the Complainant’s contract of employment?

To amount to a repudiatory breach, the employer’s breach must constitute a fundamental breach of the employment contract.  A repudiatory breach allows a party not in breach to accept the breach and affirm the contract or to repudiate the contract. If the employee decides to repudiate the contract by resigning, he needs to do so in a timely manner otherwise his continuing to work can be taken to amount to an affirmation.

The test by which a repudiatory breach of contract can be identified was set out by Lord Denning M.R. in Western Excavating Limited (ECC) v Sharp [1978] IRLR 332 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.”

The Complainant submits that trust and confidence, an implied term of his contract, was broken by the CEO who, by his own evidence, was “super disappointed” with the Complainant’s decision to self-isolate on GP advice in December 2020. The Complainant contends that Mr. Mooney had a conflict of interest and should not have overseen the disciplinary process in January 2021. The Complainant raises valid criticisms of the disciplinary process. The question for the Court to consider is whether Mr. Mooney’s actions breached the Complainant’s contractual rights such that he was entitled to resign.

There was a fundamental disagreement between the parties about the appropriate response to address the situation where certain employees were confirmed close contacts of the Covid-19 virus. In the Court’s judgement, both parties acted on the information available to them at that point in time. For its part, the Respondent was satisfied that adequate safety measures were in place to protect the Complainant and his colleagues. The Complainant disagreed with that view and followed his medical advice to self-isolate as a COVID-19 close contact. While the Respondent’s insistence that the Complainant physically attend the workplace may have undermined his trust and confidence, in the Court’s view, the assertion that levels were broken such that he was entitled to resign his employment on 9 April 2021 was a disproportionate response.

The Complainant further contends that the Respondent’s refusal to address his safety concerns and disregard statutory safety obligations was a breach of contract, justifying his decision to resign. No evidence was submitted by the Complainant that the Respondent refused to address safety concerns. There was disagreement about the approach taken. The Respondent heard his concerns and sought advice in relation to that matter. The Complainant did not agree with that advice and chose to self-isolate. The Court cannot find that there was a breach of health and safety obligations by the Respondent.

Having regard to all the circumstances, the Court finds that the actions of the Respondent in December 2020 were not so disproportionate to amount to a breach of the Complainant’s contract of employment, such that he was entitled to resign his employment

The Complainant contends that his contractual rights were breached when he was subject to an unfair disciplinary process. The Complainant appealed the disciplinary sanction and accepted the outcome of the appeal process on 4 February 2021. He later instigated a grievance in relation to that matter but did not exhaust the grievance process set out in the company handbook. Considering this fact, and for reasons expanded on later, the Court finds that there was no fundamental breach of the employment contract in relation to that matter such that the Complainant was entitled to resign.

Finally, the Complainant contends that his contract of employment was breached when he was denied a promotional opportunity in retaliation for refusing to attend the workplace. He submits that the sanction, which fell outside the disciplinary process, directly impacted his career prospects such that he was entitled to resign. To rely on that argument the Complainant must demonstrate a breach of his contractual entitlements. No evidence was submitted that the Complainant had a contractual entitlement to a trial for promotion. In those circumstances, the Court finds that the Complainant cannot rely on the fact that he was denied a trial role to assert a fundamental contractual breach of his contract of employment.

Having regard to the submissions made and evidence adduced, the Court finds that there was no fundamental breach of the employment contract under the “contract test” such that the Complainant was entitled to resign his employment.

Was the employer’s behaviour such that it was reasonable for the Complainant to resign?

The Complainant contends that should the Court find that his contract terms were not expressly breached, the employer’s conduct was so unreasonable that it justified resignation. This requires an assessment of the events leading to the termination of the Complainant’s employment.

InBerber v Dunnes Stores [2009] IESC 10, the Supreme Court held:

‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.
3. The conduct of the parties as a whole and the accumulative effect must be looked at.
4. 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 such that the employee cannot be expected to put up with it.’

The Court must consider whether the cumulative actions of the employer crossed a threshold to damage the relationship to such an extent that it was reasonable for the Complainant to resign.

The Complainant cites the employer’s unreasonable behaviour in terms of unfair treatment during the disciplinary and grievance processes, the denial of a trial promotion and the cumulative impact on his mental health as the relevant factors in his decision to resign his employment.

The Complainant cites the denial of a promotional opportunity as relevant to both the contract test (addressed above) and the reasonableness test. He contends that the Respondent acted unreasonably by denying him a trial supervisory role, which remained in place with no sign of reversal. This contention was contradicted by the unchallenged evidence of Mr. Leavy who said that the Complainant had accepted the reduced disciplinary sanction and was told that the company was committed to giving him a trial once his disciplinary warning lapsed. In those circumstances, the Court finds that it was not reasonable for the Complainant to resign when he did and seek to rely on the denial of a promotional opportunity as a decisive factor in his resignation.

The Complainant’s evidence was that his decision to resign was the only rational course of action left open to him, as he felt unsafe in his work environment which led to work-related stress. A psychological report dated 26 March 2021 was opened to the Court in support of the Complainant’s assertion he suffered work-related stress. The report was not shared with the Respondent before the Complainant’s resignation. In those circumstances, the Court finds that the Complainant cannot rely on the report to say that he was entitled to consider himself constructively dismissed, when the Respondent was unaware of the Report’s findings and therefore not in a position to respond to matters raised therein.

The Complainant made several criticisms of the disciplinary process. He takes issue with the Respondent’s failure to conduct an investigation prior to the disciplinary hearing, refusal to accept his medical certificate and the sanction issued. The Respondent’s position is that it followed proper procedures and saw no basis for reopening the disciplinary process when the Complainant had accepted the outcome on 4 February 2021. While the Court finds that there are merits in the criticisms of the disciplinary process, the failures in that process do not objectively, in and of itself, amount to behaviour on the part of the Respondent that was so unreasonable as to justify the Complainant’s resignation, as there was a grievance mechanism available to the Complainant under the company’s grievance procedure, which included a referral “an appropriate external forum”.

The Complainant lodged  a grievance about the disciplinary and disciplinary appeal processes and about the decision not to allow him to perform an acting supervisor role to Sean Leavy by email on 10 February 2021. Thereafter, there was an exchange of emails between the parties.

The Complainant was asked to provide details of the grievances within three working days. By email on 15 February 2021, the Complainant advised that he had professional advice and, having expressed concerns about the timeline for submitting his grievance details, an extension was agreed.

By email on 24 February 2021 the Complainant submitted ten points for review under the grievance procedures. Mr Leavy replied that day to say there was no basis to revisit matters ventilated as part of the disciplinary appeal and that he found no basis for a grievance in relation to other matters raised. He asked the Complainant to provide details about the complaint of “bullying” not raised previously.

The Complainant replied on 7 March 2021 to say that he wished to have a formal appeal (with his legal advisor) and that he wanted a review of the appeal by someone impartial. Mr Leavy replied on 8 March 2021 to say as no additional information was provided, the position remained as per his previous email. He stated the matter was now closed and the disciplinary process fully exhausted. The Complainant did not raise any further issues after Mr Leavy’s email of 8 March 2021.

The Complainant resigned his employment on 9 April 2021. He submits that he did so in circumstances where he did not have access to an appropriate grievance procedure as there was no independent pathway to challenge decisions, given the CEO Mr. Mooney’s involvement from the outset.

For its part, the Respondent contends that it acted reasonably by clearly requesting details of the Complainant’s grievance and responding swiftly to the allegation of bullying. It contends that it was reasonable to consider that matter to be closed as the Complainant did not follow up on the request for further information, despite having the benefit of legal advice at this time.

In the Court’s judgement, the Complainant’s decision to resign when he did was premature. He resigned without exhausting the available grievance mechanism, as set out in the company handbook which provides for a three-stage appeals process. The policy states that at the end of the internal process “Should the employee be dissatisfied with the final decision and wish to pursue the matter further, he/she may refer the matter to an appropriate external forum.” By availing of such a route, the Complainant would have had an opportunity to ventilate any concerns to an impartial and independent party. That did not happen in this case.

The Complainant failed to fully use and exhaust the grievance procedure in circumstances where, by his own evidence, he was aware of the procedure and had used that process. While he took issue with many aspects of the management’s approach to addressing matters that arose after he was found to be a close contact of Covid-19 in December 2020, his decision to resign when he did was premature and cannot be considered to be reasonable. 

When 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. To succeed in a claim of constructive dismissal an employee must demonstrate that they have pursued their grievance through any relevant procedures before taking the step to resign. A Complainant must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.

The Court has carefully evaluated the evidence adduced during the hearing and has taken full account of the written submissions and legal arguments made by the parties. Having regard to the facts of this case and the high bar set by the authorities in constructive dismissal cases, the Court finds that the Complainant was not entitled to consider himself constructively dismissed. The Court finds that the Respondent did not repudiate the Complainant contract of employment or behave in such an unreasonable manner such as to warrant the Complainant’s resignation on 9 April 2021.

Accordingly, the Court finds that the complaint is not well founded.

6. Decision

For the reasons set out above, the Court finds that the appeal fails, and that the complaint of unfair dismissal is not well founded.

The Adjudication Officer’s decision is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
6 October 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Fiona Corcoran, Court Secretary.