Complainant

Respondent

Parties

Rodrigo  MacHado Soares

Dylan

Representatives

Self-represented

 ARAG Legal Protection

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-00072799-001

25/06/2025

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2024

CA-00072799-002

25/06/2025

The complaint submits that he was constructively dismissed on 21/06/2025. The complaint further contends that he was penalized for making a complaint under the Employment Permits Act, 2024.

The complaint commenced employment as a style assistant on 04/05/2024

His hourly pay was 12.70.

He submitted his complaint to the WRC on 25/6/2025.

Respondent’s Title.

The complaint requested that the name of the respondent be amended to Dylan to reflect its correct legal title. This was agreed.

This is reflected in the decision.

CA-00072799-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complaint maintains that the ongoing treatment of him by the respondent was such that he was left with no choice but to resign his employment on 21/6/25.

Evidence of the complainant given under affirmation.

The complainant set out the matters giving rise to his resignation.

On 21/3/2025, the Accommodation Supervisor, told him that his hours were to be reduced on the next day, Saturday, which would result in a loss of 6 hours’ pay. This occurred after a conflict with her concerning a task which he stated that he completed, and she disagreed. She had shouted at him.

He sent an email to the manager and the 6 hours due to be withdrawn were reinstated on his roster for the following day.

The following day, Sunday, he spoke to the Accommodation Manager in an effort to resolve difficulties between himself and the Accommodation Supervisor. She told him she was not getting involved.

The HR manager asked him to meet her on 27/3/2026, but by this stage he required communications to be in writing. She advised him of the grievance procedure as a route to address his concerns about what had happened. He didn’t know how to deal with the case

A quick meeting occurred on 7/4/2025 with the Accommodation Supervisor, the Accommodation Manager and himself at which all undertook to treat each other with respect. Notwithstanding that, more disagreements followed between the complainant and the Accommodation Supervisor. The Accommodation Supervisor was responsible for the roster, as the Accommodation Manager was on leave. On 8/5/2025 all staff were given 5 days’ work bar the complainant who was only given one day. He made a complaint to HR, and he was given another day on the roster.

The complainant outlined other events which led him to resign. In May 2025, one week after the roster issue, the HR manager called him to a meeting and showed him all the complaints from the Accommodation Supervisor against him.

The complainant met the General Manager on 9/5/2024. He found the meeting intimidatory. The General Manager showed him a complaint from the Accommodation Supervisor to whom he had sent a w app message saying, “Don’t tell me what to do”.

After this meeting he sent an email to HR about the way the General Manager had spoken to him, plus the delay of HR in responding to what had occurred on 21/3/2025, and specifically the delay in responding to his complaints as he was unsure if the relevant personnel were away, as claimed, at that time

Concerning the photos put into evidence by the Accommodation Supervisor, her criticism of his work was baseless. She should have asked him politely about these photos

 Redress.

The complaint is seeking compensation.

Mitigation

He got a job mid -July 2025, part time, at €12.70 an hour

He stated that he had applied for other jobs but has no evidence of applications to put before me.

He has returned to Brazil. He was a student in Ireland from 2022- November 2025.

Cross examination of the complaint.

The complainant confirmed that he had signed a contract on commencement of his employment.

He confirmed that he had received the Grievance Procedure.

Concerning the issue that triggered these events, the complainant agrees that he was asked by the Accommodation Supervisor to re-hoover the room but denies that he refused to do this. He stated that the Accommodation Supervisor shouted at him. Concerning the photos submitted in evidence showing dirt in the room which he had been asked to re -hoover, he stated that these photos are not evidence that these rooms were not cleaned by him. To the question if the photographs were fraudulent, the complainant states that they do not prove that this was a room to which he had been assigned.

He was unare that the Accommodation Supervisor had lodged a complaint against him with the respondent.

He confirmed that upon receiving a copy of the grievance procedure and an invitation on 4/4/25 to meet HR, he requested that all communication would be in writing.

As per the grievance procedure, and on the request of HR, he did speak with the Accommodation supervisor and Accommodation manager. He accepted that the record of the meeting of the 7/4/2025 with the accommodation supervisor and the accommodation manager, noting that matters had been resolved, is a correct summation of the situation up until that date. He accepted that he did not go back to the HR manager as required to tell her that all was not resolved which was his subsequent position.

He confirmed that he did not lose hours but only after  he had made a formal complaint.

He confirmed that no issue arose between himself and the respondent between the 4/4/2025- 8/5/2025. He accepted that there was only 50% occupancy of the hotel on Monday 12 May. He was only rostered for one day the week commencing the 12/5/2025. He confirmed that he had booked holidays from Wednesday 14 for the remainder of the week, but felt that he should have been rostered for 2 days , Monday and Tuesday and other staff, allocated to those days but given more days than him for that week, could have been withdrawn from Monday and Tuesday, to facilitate him, and be rostered, instead, for the end of the week when he would be on leave. He confirmed that he only works 20 hours a week on Monday, Tuesday and Wednesday, and that he had booked holidays for Wednesday.

He accepted that the tone of the message which he had sent to the Accommodation Supervisor in which he stated “don’t tell me what to do” was unacceptable but he felt under pressure and persecuted. He confirmed this to the HR manager.

He met the General Manager on 9/5/2024 who focussed on his statement to the accommodation supervisor and not on his complaints. He does not know if his meeting with the General Manager on 9/5/2024 was a formal/ informal meeting. He confirmed that no disciplinary sanction emanated from the meeting

He confirmed that both matters, the March hoovering incident and the intended withdrawal of hours on 22/3/2025 had been resolved.

He agreed that he had never advised the respondent about his concerns with the scope of the proposed mediation process, concerns which he included in his written submission to the WRC. He confirmed that he had never advised the respondent why he would not proceed with mediation.

He accepted that he did not respond to the respondent’s query on 6/6/2025 as to his willingness to proceed with mediation but opted to submit his resignation on 13/6/2025.

He was unwilling to return to the workplace as he had been pulled up for leaving 5 minutes early.

He confirmed that he received an offer to retract his letter of resignation and to engage in mediation, but he rejected that. His decision to forgo mediation and the grievance procedure was because the workplace was a hostile environment.

CA-00072799-002. Complaint under Schedule 2 of the Employment Permits Act, 2024.

This was set out as a complaint of penalisation. The complainant also stated in his complaint form that he was penalised following the making of protected disclosures about his employer’s treatment of him.

The complainant confirmed that he does not possess an employment permit, but a stamp 2 visa as a student.

When asked, he confirmed that he had made no complaint under section 60(3) of the Act of 2004 to the Garda Siochana or Minister.

He was unable to identify any protected disclosures which he had made within the meaning of the Protected disclosures Act, 2014-2022.

CA-00072799-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The respondent denies that the complaint was dismissed. He resigned prematurely and failed to give the respondent’s processes a chance to resolve the matter.

At the conclusion of the complainant’s evidence in chief and cross examination on that evidence, the respondent requested that the adjudicator issue a preliminary decision affirming that the complainant’s own evidence together with his disengagement from the processes established to address his complaints demonstrate the unsustainability of his complaint. The respondent requests that I accept that it is, therefore, unnecessary to hear the respondent’s evidence as his evidence, alone, fails to meet the threshold required to uphold this complaint.

In support of this preliminary application, the respondent cites the Supreme Court decision of Robert Ewing v Ireland and the Attorney General 2103, IESC 44, and Georgina O’Driscoll v Daffodil Care Services Unlimited Company, ADJ-00040760. Both of these decisions upheld the request to make a decision without hearing the evidence of the defendant and respondent.

The respondent makes this request on the basis of the existing authorities which set out the thresholds required to successfully sustain a complaint of constructive dismissal.

The respondent relies on the Labour Court determination of Paris Bakery & Pastry Limited -v- Mrzljak DWT1468. In interpreting the meaning of section 1 of the Act, the Court summarised the two tests either or both of which a complainant must meet to succeed in a complaint of constructive dismissal.

One is the contract test summarised by the court as

“an employer behaves in a way that amounts to a repudiation of the contract of employment”

And the reasonableness test which arises when the employer

“Who conducts himself or his affairs so unreasonably that the employee cannot be fairly expected to put up with it any longer”.

The respondent states that the complainant has failed to point to any breach of his contract of employment. No such breach occurred.

In terms of any allegation of unreasonable behaviour on the part of th employer, the respondent points to Berber v Dunnes Stores, 2009 E.L.R, which held that

“the conduct of the employer and employee must be both considered”.

 The Court went on to state that

(c)“ the conduct of the parties must be looked at as a whole and the cumulative effect t must be looked at:

 And

(d) 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 is such that the employee cannot be expected to put up with it.”

The respondent maintains that they acted reasonably in making every avenue open to the complaint to resolve his issues. None of his complaints of the respondent’s behaviour come near to constituting a reason to resign.

Concerning the obligation on the complaint to also act reasonably and to invoke the relevant procedures, the respondent relies on Harrold v St Michael’s House 2008,19 E.L.R.I, where the complainant’s failure to engage in processes was fatal to his complaint.  The respondent also relies on Conway v Ulster Bank Ltd UD 474/4/1981 in this regard.

The respondent submits that the complainant is unable in his evidence to identify a breach of contract or behaviour so unreasonable as to compel him to resign.

The respondent submits that the complainant, on his own evidence has not and cannot establish a case of constructive dismissal and cannot seek to rely on the respondent’s witnesses and evidence to establish same.

His complaint should be dismissed.

CA-00072799-002. Complaint under Schedule 2 of the Employment Permits Act, 2024.

The respondent submits that this complaint is misconceived.

The complaint is not a permit holder but the holder of a stamp 2 visa due to his status as a student.

He has not claimed to have carried out any of the acts set out in section 60(3) of the Act of 2004.

He is unable therefore to establish a causal link between the conduct complained of and the protective acts.

The complaint has made no complaint under the Protected Disclosures Act 2014-2022. The complaints made were solely related to his employment and don’t attract the protection of the Protected Disclosures act 2014-2022.

The adjudicator is asked to dismiss this complaint.

CA-00072799-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I am obliged to establish if section 1 (b) of the Act of 1977 operates to validate this complaint of constructive dismissal. Section 1 (b) of the Act states

 “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.”

The respondent denies that they constructively dismissed the complaint. He resigned prematurely.

The dismissal is in dispute and therefore it is for the complainant to establish that in the circumstances of this case, the dismissal was unfair.

But in the first instance I must consider the respondent’s application that the complainant’s own evidence in chief combined with his non- use of the respondent’s procedures fail to demonstrate a stateable case. His evidence falls short of the threshold required to sustain a complaint. The respondent continued that it was therefore unnecessary to hear the respondent’s witness evidence as the respondent accepts that the incidents complained of occurred. The significance attaching to them is another matter. Mr. O’Mahony, B.L.  asked the adjudicator to make a preliminary decision on this matter.

The complainant in response to this application stated that he would be guided by the adjudicator’s decision.

I gave the complainant an opportunity to make a written response to the authorities submitted by the respondent as to how his circumstances differed from the authorities cited in support of the respondent’s contention that it was unnecessary to proceed any further, and also to the authorities submitted  concerning the heavy burden resting with a complainant in such claims to invoke procedures.

I advised that I would make a decision on the respondent’s preliminary application and re- convene the hearing to hear the respondent witnesses’ evidence if necessary.

The complaint did make a submission post- hearing which I will consider further as did the respondent in reply on 4/6/2026.

Authorities cited in support of the preliminary application.

The respondent signposted the decision of the Supreme Court in Robert Ewing v Ireland and the Attorney General 2103, IESC 44.

This was an appeal against the High Court’s decision to strike out the case which dealt with the repeated attempts of Mr Ewing to undo a sale of land between his father and a third party.

The Supreme Court upheld the power of the courts to strike out proceedings holding:

” There is no duty to allow unstateable cases progress to a full hearing. Time is an issue for both parties”.

The Court quoted Rule 28 of the Rules of the Superior Courts which allows for the striking out of  a claim  on “the ground that it discloses no reasonable cause of action”

The respondent also relied upon Georgina O’Driscoll v Daffodil Care Services Unlimited Company, ADJ-00040760

 In this case the adjudicator accepted the respondent’s request to make a decision on the evidence of the complainant. This was a case taken under the Employment Equality Act, 1998 concerning the onus resting on the complainant to raise a prima facie case of discrimination and if successful in that exercise, enabling him, thereafter, to shift the burden to the respondent to rebut the presumption.

She concluded that on the basis of the complainant’s evidence:

“it is not necessary for the respondent to present evidence, because it is my view that I find no evidence to suggest that suspension without pay was in retaliation for Mr Kennedy’s suggestion on February 10th, 2022, or that the respondent may have a complaint of discrimination to answer.”  

While these two cases deal with different claims to those of the complainant, they acknowledge the significance and weight of evidence in determining if a stateable case compatible with the relevant Act and authorities exists and has been made out.

Application of the authorities to the evidence submitted by the complainant.

For purposes of establishing a stateable case, there is a long line of authorities concerning the evidence required to stand up a complaint of constructive dismissal which any complaint must meet.

In justifying his decision to terminate his employment the complainant will have to demonstrate that the circumstances of his dismissal met the tests as set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) ICR 221 and described thus:

 “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 discharged from any further performance”.

and the reasonable test which was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving” This requires a complainant seeking to have their complaint of constructive dismissal upheld to demonstrate that the employer has committed a fundamental breach of  the contract of employment and/or has engaged in conduct so unreasonable as to leave the employee with no other choice but resignation”.

Applying the tests here to the three incidents which ground this complaint, no case was made out that a breach of contract occurred.

The facts and incidents giving rise to the complainant’s decision to resign were:

the incident on the 21 /3/2025 when the Accommodation Manager shouted at him for not having re – hoovered a room;

the respondent’s intended withdrawal of six hours from his roster on 22/3/2025;

the fact that he had to make a formal complaint about the Accommodation Supervisor’s   behaviour towards him to the respondent;

the withdrawal of hours on 12/5/2025;

The Managing Director’s attitude towards him;

The slowness of the management’s response to his complaints.

In  the complainant’s  post-hearing submission, while not addressing Ewing and ADJ-00040760 directly, he  made the point that he had a stateable case by way of stating  he distinguished the respondent’s treatment of him from the treatment meted out to complainants  in the cases cited and delivered to him, by describing his treatment  as a repeated pattern of adverse treatment which occurred following formal complaints  which he had  made regarding his  treatment in the workplace. He reiterated the complaints. He omitted, likewise, to address the burden resting on a complainant to invoke and exhaust procedures.

The conduct of the respondent

The Accommodation Manager is not the employer and even if the evidence is correct, and her treatment was retaliatory in March 2025, the employer undid the action and any proposed loss to him by reinstating his hours on the 22/3/2025, and by adding to his hours for the week commencing 12/5/2025. The respondent offered him opportunities to identify how matters could be rectified.

His own evidence was that the issues of re-hoovering on 21/2/2025, the accommodation manager’s shouting at him on the same day and the proposed withdrawal of his shift on 22/3/25- a shift returned to him on the same day without any loss of hours or pay- had been resolved at a meeting in April. So, by resurrecting these issues again, he is contradicting his own evidence.

By the time of his resignation on 21/6/2025, the unresolved outstanding matters from his point of view included the roster for the week commencing 12 May when instead of 2 days, he was only rostered for one day. The uncontested evidence was that Occupancy on Monday 12 May would be at 50%. The complainant was on leave from the Wednesday 14 onwards so there was only 1 additional day on which he could be rostered.  The complainant on a student visa could only work 20 hours a week and these days were Monday, Tuesday and Wednesday. Again, the respondent added a day to his roster, so he was at no loss for that week.

The evidence shows that the employer gave him an opportunity to lay out his concerns. Yes, it is the case that an employee has an implied contractual right to be treated with dignity and fairness, but the WRC, is not a first instance enforcer. The respondent’s own procedures must be used in the first instance.

The evidence fails to show that the respondent refused to be bound by any of the terms in the complaint’s contract

The complainant’s case rests on what he maintains is the unreasonableness of the respondent’s conduct manifested in the incidents set out in his evidence and extending from  March to May 2025.

Obligation to use grievance Procedures.

The respondent complied with their own grievance procedure. The complaint did not. The respondent went beyond what their procedure required and agreed to the complainant’s request for an impartial determination of his complaints and appointed an external mediator to hear the complainant’s complaints. The complainant’s engagement with the mediator was erratic, inconsistent and ambivalent. He ultimately withdrew from the process, though encouraged by the respondent to stay with it. The respondent asked him to confirm his commitment to it. After submitting his resignation on 13/6/2025, the respondent wrote to him and asked him to consider withdrawing his resignation and engaging with the mediation process to establish if a solution amenable to all parties could be developed. The complainant declined this offer seemingly influenced by the General Manager pulling him up for leaving the premises 5 minutes early. While that may have been over zealous, the employer was nonetheless doing nothing improper. This was hardly a reason to walk away from a mediation process. The complainant appeared to want to know the outcome of a stage of the procedure before he entered in to it.

In the case of Murray V Rockabill Shellfish Ltd.UD1832/2010, it was affirmed that 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 pursue his grievance through the procedures laid down before taking the drastic step of resigning.

This complainant did not do that.

I am guided by Ruffley v the Board of Management of St Annes School (2017), IESC 33, where Charleton J held that an employee must be capable of ordinary robustness, must be able to accept correction and instruction and to accept that an employer is entitled to point out faults to an employee.

I find that the complainant had difficulty in accommodating  the standard expectations of an employer as set out in Ruffley. I find the complainant understandably concerned about the loss of hours and being shouted at, also exaggerated the significance and seriousness of every difference and altercation which he experienced.

On the basis of the authorities cited and the facts pleaded, I am unable to conclude that a stateable case has been made out to uphold a complaint of constructive dismissal.

I do not find that the respondent’s conduct has enabled the complainant to meet either of the two tests set out in Western Excavating (ECC) v Sharp (1978) ICR 221. 

I do not find that the complainant was constructively dismissed.

I do not find this complaint to be well founded.

CA-00072799-002. Complaint under Schedule 2 of the Employment Permits Act, 2024.

The complainant was not employed on a work permit but was employed on a Stamp 2 visa which is granted by the Department of Justice to non-EEA nationals studying in Ireland. 

Statutory Framework.

Penalisation in this Act ius set out as follows:

Section 60. (1) In this section, “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), “penalisation” in this section includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) making a complaint to a member of the Garda Síochána or the Minister that a provision of this Act is not being complied with,

(b) giving evidence in any proceedings under this Act, or

(c) giving notice of his or her intention to do any of the things referred to in paragraphs (a) or (b).”

The complainant confirmed that he invoked no protective act as set above in section 60(3).

In order to sustain a complaint of penalisation, the first step is having to demonstrate that the complainant has invoked a protected act. Not having done so, as per his own evidence,  the complainant cannot state that he was penalised.

This complaint is misconceived. I find that he was not penalised.

The complainant refers to protected disclosures in his complaint form.

He has failed to identify having made any protected disclosures under the Protected Disclosures Act 2014-2022. His complaint was lodged under the Employment Permits Act, 2004.  In any event, personal grievances travelling through a grievance process are not considered to be protected closures.

I do not find this complaint to ne well- founded.

CA-00072799-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I decide that this complaint is not  well- founded.

CA-00072799-002. Complaint under Schedule 2 of the Employment Permits Act, 2024.

I  decide that this complaint is not  well- founded.

Premature resignation. Misconceived complaint.