Complainant

Respondent

Parties

Fabiana  Santos Da Silva

VIEC Limited                                                 t/a The Four Ferns  

Complainant

Respondent

Anonymised Parties

Representatives

Peter Dunlea                                       Peninsula Business Services Ireland

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-00068920-001

29/01/2025

This hearing was conducted over two days and in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in anticipation of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statement or evidence is an offence.

The specific details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 29th of January 2025. In general terms, it is to be expected that the Unfair Dismissal being complained of will have occurred within the six-month period immediately preceding this date.

In the interests of fairness, the WRC acquiesced to an application made for the provision of an interpreter. It is noted that the interpreter is provided to assist the Adjudicator to conduct an orderly and fair hearing of the complaints being made by the Complainant in her preferred language. The interpreter did not guide or assist the person for whom the interpreter was sought i.e. the Complainant. The Interpreter simply interpreted what was being said by the Complainant. I perceived there to be no difficulty in communication between the Interpreter and he Complainant.

The Complainant was not represented and made her own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant was assisted by the Interpreter provided. The Complainant set up a narrative along the lines of the complaints contained in the complaint form which was received on the 29th of January 2025. These read:

I have been employed in this role for 2 years and 10 months, regrettably, feel that the conduct of my employer and management team has created a toxic and hostile work environment, which has left me no choice but to resign for the sake of my health and well-being.

1. Background of the Situation:

Since February 2024, I have been subjected to continuous and escalating incidents of unfair treatment, bullying, and harassment by my direct supervisor, A, which I believe constitute a serious breach of trust and confidence in the workplace. In particular, the following incidents have contributed to an intolerable working environment:

Unjustified Removal of My Leadership Role (February 2024): As a senior Healthcare I took over the role of team leader from T on her holidays, I was publicly undermined when A disregarded my position and appointed another colleague to the leadership role without prior notice or explanation, despite my expressed commitment to the position. This created a highly uncomfortable situation, especially as the appointed colleague did not want the role at that time.

Public Humiliation and Harassment (March 7th, 2024): During a team meeting, A made baseless accusations against me, claiming I had spoken behind his back. He attempted to force me to discuss personal matters in front of my colleagues. This incident was distressing and left me feeling humiliated. Despite my efforts to remain composed and not engage in public confrontation, the situation worsened, and I was left feeling harassed and unsupported.

Unilateral Changes to Approved Vacation (June/July 2024): In June 2024, I requested and was granted time off from July 24th to July 30th, approved by N. However, without prior notice, A withdrew the approval for the first period of my vacation and only reversed his decision after I explained that I had already purchased tickets. Furthermore, upon my return, I was informed that part of my vacation was considered unpaid, and I was also told that I owed the company 61 hours of work. This was communicated to me after my return, leaving me with little opportunity to address the matter properly.

2. The Incident on 06/09/2024:

On 06/09/2024, I was summoned to a meeting with A, N, G, and K regarding a staffing issue. During this meeting, N accused me of calling G on his day off to discuss staff shortages, which I had not done. Despite my clear explanation, the situation was escalated further, and I was once again unfairly blamed. This meeting, along with others I had experienced, left me feeling harassed and unsupported.

3. Impact on My Health:

The ongoing stress and harassment I experienced over the past months severely impacted my mental health. After experiencing increasing anxiety, I sought medical attention and was advised by my GP to take a sick leave due to the excessive stress caused by the work environment. I am currently on medication to manage my condition. The environment created by N and A has directly contributed to my physical and emotional distress, leading to my inability to continue in my role.

4. My Efforts to Resolve the Issues:

I have made repeated efforts to raise my concerns, both informally and through official channels. I addressed these issues during meetings with HR and raised specific grievances on 02/09/2024. However, despite my attempts to resolve the matter internally, the behaviour continued unchecked, and I was left with no option but to resign for the sake of my health.

5. Request for Constructive Dismissal Recognition:

Given the severity of the harassment, unfair treatment, and the failure by my employer to address these issues despite my efforts to resolve them, I believe I have been constructively dismissed. The actions of the director T K, N and A, alongside the lack of proper support from HR, have made my position untenable, and I had no other choice but to resign to protect my health and well-being.

The Complainant sent in further documentary information on the 12th of February 2025, and a further comprehensive submission was delivered on the 10th of October 2025. No objection was raised to any of the materials relied upon by the Complainant in making her case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was Unfairly dismissed by way of constructive dismissal which occurred on the 19th of November 2024.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. The Complainant must establish that it was reasonable to tender her resignation.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had full representation at this hearing. The HR group known as Peninsula attended on the Respondents behalf. The only witness available to give evidence on behalf of the Respondent was ED the HR Manager. The Respondent provided me with a comprehensive written submission dated 24th of October 2025. All evidence was heard following an Affirmation. The Respondent witness was questioned by the Complainant.

The Respondent rejects that there has been a Constructive Dismissal.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced over the course of two days of hearing. The Complainant was engaged as a senior Healthcare Assistant with the Respondent company. The Complainant commenced her employment in January of 2022. For over two years the employment herein was uneventful. The Complainant was earning about €600.00 gross pr week. However, from in and around February of 2024 the Complainant felt that that things had changed for her and in particular as regards her communication and relationship  with her line Manager A. The initial row seems to have been around the Complainant’s unavailability to do an extra shift. The Complainant says A reacted so badly to her refusal that she had to have the issue addressed through HR. In a subsequent three-way meeting, the Complainant confirmed that A apologised for his behaviour.

The outcome of this meeting was documented in a management letter dated the 9th of February 2024.

The Complainant was seemingly not particularly happy with the outcome that was presented in the HR drafted letter of Feb 9th 2024. In her submissions the Complainant has repeatedly said that there was a  lack of meaningful support provided to her and she felt that her request to be moved to another floor should have been acceded to.

There was another incident in March of 2024 when the Complainant says that A once again humiliated and belittled her in front of other members of staff. It is not clear to me whether this issue was raised immediately.

The Complainant formally wrote to the HR team on or about the 13th of August 2024.  This is six months after the first issue in February. The Complainant letter pointed to three separate matters:

In February, after replacing the team leader T and completing the handover, I was taken aback by A's actions, who, without any justification or prior notice, disregarded my position and appointed someone else to the role. This appointment was made publicly, even though the colleague assigned to the role expressed that they did not wish to assume leadership at that time. This decision placed me in an awkward and uncomfortable situation in front of my colleagues.

The situation worsened on March 7th, during a team meeting, when I was publicly humiliated by A. He made baseless accusations that I was speaking behind his back and attempted to force me to discuss personal matters in front of everyone. His final statement, as the meeting ended, was for me to "report him again." Despite maintaining my composure and refusing to engage in such a discussion publicly, the incident was extremely distressing and unacceptable.

Moreover, I faced significant issues with the approval of my vacation.

In this letter the Complainant did also state that she would seek the support of the WRC if she needed to.

I note that the Complainant did not refer to the previous incident in February 2024 (concerning the availability to work an extra shift) which had been addressed through a mediated type meeting. The issues raised in the 13th of August letter, were therefore all new issues.

The Director of nursing TK and the HR Manager B set up a meeting to discuss the issues raised by the Complainant. This meeting happened on the 2nd of September 2025, and the Complainant seemed happy enough with the outcome which included a promise to commence an investigation into the issues raised:

During our conversation, I raised my concerns about the incidents that happened with A in February and the 7th of March of this year and how I felt humiliated and frustrated by those experiences. I’m relieved that you both agreed to open an investigation into this matter and to provide me the follow-up within a month.

Regarding the issue of my holidays, I was advised to speak with the finance department to understand why I owe hours to the company.

At the end of the meeting, you asked if I had any suggestions for resolving the situation, and I mentioned the possibility of being transferred to the new Stepaside unit. Bolanle, I appreciate that you offered to consult DETE about this possibility, considering my sponsorship is tied to The Four Ferns. I also appreciate the offer of counselling support, which I accepted, and I’ll look forward to receiving the guidance that B will send me by email.

I note that the HR Manager in her reply very sensibly stressed that there were a good few witnesses to be spoken to:

I appreciate you bringing your concerns to our attention. As mentioned, these concerns are currently under investigation. Given the number of individuals you indicated were witnesses to the event, it is important that each of them is spoken with.

I also note that the Complainant was advised to consider the counselling service provided in the workplace:

Below is the information for the counselling service. Please give them a ring or send an email to book an appointment.

To my mind therefore it seems that the Complainant’s complaints were being taken seriously, and supports were being put in place. I note that there was a conversation around moving the Complainant’s place of work to another Respondent -run facility (at her request) but that issues concerning her visa (which was attached to Four Ferns) meant she could not move as freely as might have been hoped. The Complainant was also at this time looking to be interviewed for a more senior position within the Respondent company which highlights, the Respondent has suggested to me, her more general satisfaction with the workplace together with a long-term vision for staying in the company.

Unfortunately, and very soon after the positive outcome of the meeting held with the Director of nursing TK and the HR Manager B, another issue arose. From what I could understand, the Complainant was aggrieved that a colleague N had accused her of contacting another colleague G about issues that had arisen the previous day at work when there was a shortage of staff. I have read the letter that the Complainant sent to HR concerning this incident and whilst I do not profess to understand exactly what happened, it is clear that the Complainant was upset at how she was being addressed and the seemingly accusatory tone being used against her. I note that the individual A had also been present in this situation but had not triggered the incident. In her letter to HR (dated 9th of September 2024) the Complainant finished up by stating:

I want to document how sad and unfair I found this situation to be. Additionally, I feel that this situation, along with the past incidents I reported during the meeting on 02/09/2024 with you both, constitutes a pattern of bullying towards me. It seems that no matter the issue, I am always being blamed, which I find deeply unfair and concerning.

The Complainant had, it seems, conflated her ongoing and documented issues with A into a more rounded bullying campaign by a wider selection of colleagues.

I note that the Director of Nursing does try and diffuse the Complainant’s sense of outrage stating in her replying email:

I will need to follow up with Nithish, Kate and Gabriel tomorrow as they are not working today, It does not constitute as bullying if all that Alex has stated was that the correct procedure is being followed. It was not Alex who had called the meeting it was Nithish. I will look into the rest of the incident

Again, there is a promise to look into the incident which would presumably have to be run alongside the investigation (into A) already promised on the 2nd of September.

Some two to three week later the Complainant goes out sick. The medical certificate provided states that the Complainant is suffering with an acute disease. Quite rightly the Complainant is left to recover and recuperate. For the avoidance of doubt, I do not accept that the Employer should have  equated a diagnosis of acute disease with a diagnosis of work related stress and the Complainant cannot be allowed to push this assumption. The Complainant returns to the workplace at the end of October and starts making enquiries about what had happened with the two investigations she had assumed would be ongoing in her absence. It is regrettable to note that in fact nothing had happened in the absence of the Complainant. The Director of nursing had herself been out sick in a pregnancy relate matter and the HR Manager had moved to another job. I accept that this was very disappointing for the Complainant who was, however, placed on another floor and under a new Manager on her return to the workplace. This was something which she had previously requested. 

I note that on the 9th of November 2024 the Director of Nursing wrote an email to the Complainant:

I have unfortunately been off sick for an extended period of time due to unforeseen circumstances with my unborn baby. I am back now and I can review both incidents. As you may be aware- Bolanle our HR support has since left the company. We have recruited a new HR support which will take time before she is compliant to work on the floor,

So, whilst the double investigations may have lost some time, it was not the Employer’s intention to not implement them though why in the circumstances they did not look for outside support is not known or understood.

Ten days later the Complainant resigned. In her evidence she says that she felt unsupported. She says she was having panic attacks at the prospect of bumping into A in the workplace. She says the ongoing situation was impacting her mental health though I have to note that there is no evidence to corroborate this assertion.

A more Senior HR Manager reached out to the Complainant, but the Complainant was not for turning. She said in evidence that it was too late after everything she had been through. In her reply to the senior HR person she says:

Thank you for your email. I want to express my frustration regarding the lack of communication and follow-ups on the issues I've been reporting for over a year now. It has become increasingly difficult to wait for answers or to even secure a meeting without having to persistently reach out. After we met last time, I was assured by Tara that an investigation would be opened within a month. However, it has been over two months, and upon my inquiry, I was informed that Tara was unwell and could not complete it.

Unfortunately, it seems that without my requests, there is little movement on these matters. I also want to highlight that the retaliation I've experienced is unacceptable, and I am still waiting for answers regarding the meetings we’ve discussed. I have kept all reports and correspondence from Tara and Bee if you would like to review them. I appreciate your attention to this matter and look forward to your prompt response.

Happily, for the Complainant she left her job and went straight to another one which paid slightly more than that which she was earning with the Respondent. She confirmed in evidence that she looked for alternative employment while out sick. Her losses were, for the purposes of the Unfair Dismissals legislation, de minimis. The legislation allows for four weeks compensation where no financial loss attributable to the dismissal can be proven

I do not think it is unfair to point out that the Complainant’s resignation might have been as much to do with the fact that she had secured other work as it had to do with the fact that she was dissatisfied with the handling of her Grievances. However, I do have to accept that it was the Complainant’s general unhappiness in the workplace that led to her looking for other employment at all.

I not that the Respondent did not require that the Complainant would complete her notice period of four weeks. In fact, the Employer paid the Complainant in lieu of working out notice. The Respondent suggested to me that this was a windfall payment intended to be seen as a gesture of goodwill.

The Complainant’s two witnesses did not materially add to the Complainant’s case and the Respondent’s only witness was a witness after the fact.

On balance I am inclined to accept that the Complainant has, just about, established that the Respondent handling of the Grievances raised by her were less than optimum. There was a clear delay which the Respondent sought to partially explain by the loss of an actively involved HR Manager. I do not think that the delay had entered into the realm of unacceptable by the time the Complainant resigned. So, whilst the Complainant succeeds in her claim for Constructive Dismissal it is not emphatic and accordingly the compensation will reflect that fact.

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

CA-00068920-001  - The Complainant was unfairly dismissed by way of constructive dismissal and I award €1,500.00 compensation.