Complainant

Respondent

Parties

Mr Damian Tuite

Dunnes Stores

Representatives

Self-Represented

Mr Owen Keany BL instructed by Ms Elaine Kelly Byrne Wallace Shields LLP

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-00073928-001

30/07/2025

These matters came before the Workplace Relations Commission dated 30/07/2025 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977 (Constructive Dismissal).   

The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 15/04/2026. 

The Complainant at all material times was employed as Manager Goods Inwards.  The Complainant commenced employment with the Respondent on 04/10/2024 with such employment terminating by way of resignation on 29/04/2025.  

The Complainant was in receipt of a monthly salary of €4566.25 gross for which he worked 39 hours per week. 

The Respondent is Ireland’s largest retailer.

The Complainant claims constructive dismissal. 

This claim is vigorously denied and contested in full by the Respondent. 

It was explained to the unrepresented Complainant at the commencement of hearing that in a claim alleging constructive dismissal there are two sets of circumstances in which a resignation may be considered a constructive dismissal namely the “contract” test and the “reasonableness” test.  The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign. 

It was explained that it is now generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee.  All other options including grievance procedures must be explored. 

It was explained that the reasonableness test requires that the employee must satisfactorily demonstrate that the employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  The employee must show that his behaviour/action in resigning was reasonable in all the circumstances. 

As the Complainant terminated the contract of employment, he bears the consequent burden of proof imposed by the legislation.  Having regard to same, the Complainant presented his evidence prior to the Respondent opening their case.    

The Respondent provided written submissions and supporting documentation in advance of hearing.    The Complainant relied on that which he had set out in the narrative of his WRC complaint form.   

CA-00073928-001

As per WRC complaint form

10-3-2025 I went into work for 5:45 while at work I got a call to say my mother fell I was the only manager in so I waited till 8 o'clock until the store manager came in and I could leave.

He said if anything like that happened again I was just to leave but I knew I had to wait. I arrived into work the next day Tuesday the 11-3-2025 worked the full day even though a letter they sent to me stated I was last at work on the 10-3-2025.  I still have said letter.  On the 11-3-2025 my mother fell again and I brought her to A&E late that night.  I tried to phone the store but texted the assistant manager to say I couldn't make it to work on the Wednesday.

My mother was in A&E two days before she got a bed I stayed by her side for those days and the remaining time she spent in hospital.  My mother fell again in hospital and ended up with a bad bleed on the brain and was given six days to live.  I never returned to work since the 11-3-2025 but kept in contact with phone calls and texts even bringing in a requested letter from my doctor to say I cared for my mother.

I received calls from my manager wanting to know about my return as he had managers doing two or three late nights to cover me which I had done previously to cover other manager out sick or on holidays in fact I did two to three closes every two weeks when

I had to work Sundays which was about every two week.

I received five letter from work within a month calling me in for a meeting.  One letter sent by express post and the same letter sent by registered post.  I can find three of these letters but not the last two as I didn't think I would have to keep them at the time.  I felt harassed and bullied by these letters and eventually told them that I would not be returning to work.

I felt they went out of their way to make me make that decision at no time did they show compassion or empathy quite the opposite in fact.  My mother died two and a half months later at which point I would have returned to work I wasn't given this time however other managers can get time off work and even career breaks but I couldn't.

I was paid until the end of march which included a weeks holiday but never paid after that only got paid for two days I was owed so this time was taken at my own expensive. I was told that if you had a sick child or an elderly parent that the company would work with you but not in my case. I was singled out harassed and bullied into my decision. 

Summary of direct evidence of Complainant on oath

On 10 March 2025 went to work at 5.45. His mother had fallen and he waited for a manager to relieve him.  He left at 8pm and came in the next day and worked a full day.  On the Tuesday night his mother fell again and he phoned the store and kept in contact.  The Complainant’s mother fell again in the hospital; she had a bleed on the brain which was inoperable and even though there was a DNR she received treatment.

The Complainant submits he kept in contact with the store and gave HR letter from the hospital.  He needed time; he didn’t know how long; he wasn’t given time and he was put under a lot of pressure.  He got a phone call on 15 April from the landline in the store and he wasn’t pleased with the way it was put to him that the store would stop if he didn’t come back.  He wasn’t asking for year or for money he just wanted time to look after his Mum.  The letters made it seem like he was being put under pressure.  He thought after being there for 20 years they could have given him time.  The phone calls at the end weren’t nice after everything he did for the company.  It wasn’t fair he was under pressure after 20 years of employment they should have been able to cope without him. 

Summary of cross-examination of Complainant

The Complainant confirms he was a manager in groceries goods inwards and he joined the company in 2004.  The Complainant accepts he would have been at management meetings and is aware of the employee handbook.  The Complainant submits he might have seen it once and it’s probably sitting at home and he would never have had any reason go to it.

Accepts that policies are all set out.  The Respondent representative reads into evidence extracts from the handbook that set out rules of engagement and the modes of communication relating absence from work all of which is accepted by the Complainant.  It is put to the Complainant that as he is a manager he would understand his manager would need some sense of when he might be returning which he accepts. 

The Complainant accepts that there are policies there if he had any issue of concern.  The Complainant is directed to the Policy on Dignity and Respect in the Workplace which shows the company won’t in any way entertain bullying and harassment and a significant declaration to that effect and 4 pages of detail about the process to be applied.  It is put to the Complainant that he was of the view he was being bullied and harassed but yet the policy was not invoked.  The Complainant is directed to the internal complaints procedure which the Representative submits is akin to a grievance procedure which the Complainant also failed to utilise. 

It is put to the Complainant that these were challenging personal circumstances and nobody is denying that but it is simply untrue that he was bullied and harassed. 

It is put to the Complainant that he was out for a period of 6 weeks and then he decided to tender his resignation.  Mr Campbell will give evidence that there was no bullying or harassment and there was a striking level of sensitivity shown to him which the Complainant does not accept.  The Respondent representative takes the Complainant through the text traffic between the parties and asks the Complainant if there is bullying or harassment in any of the texts from the Respondent to which he responds that he was expecting a bit of sympathy. 

The Complainant submits he was expecting more, to be honest.  The Complainant submits the text messages were fine but he had filled in for people at a moment’s notice and all he needed was time.  It is put to the Complainant that he is absent from work and he is in a kind of a no man’s land that the Respondent is seeking to regularise by way of different leave options to which the Complainant responds there were numerous phone calls.

Upon enquiry the Complainant does accept that, as a manager, if one of his staff were absent it wouldn’t be a ‘see you when we see you’ scenario and accepts that for rostering you need to know when someone will be back. 

The Complainant accepts there was nothing unreasonable about carer’s leave being discussed on 4 April.  The Complainant accepts there is nothing unreasonable about being asked to have a phone call a month into his absence on 11 April.  The Complainant accepts there was no pushback or no issue when he texted the Respondent on the Friday to say it would be the Monday before he would know more. 

It is put to the Complainant that on 15 April Mr Campbell called him for an update and he was not in a position to tell him when he might be back.  It is put to the Complainant that his position needed to be formalised by way of some type of leave hence the letter post phone call on 15 April inviting the Complainant to attend a meeting on 2 May to discuss same.  It is put to the Complainant that he is now on leave for a month in no man’s land and there is a requirement for an appropriate type of leave application or medical certs. 

It is put to the Complainant there is no question of the letter being punitive or disciplinary; it related to a discussion to formalise which he accepts but he submits could this not have happened over the phone because he was with his Mam all day every day.   

It is put to the Complainant that it is understood he had stuff going on and nobody is questioning his commitment to the job and they were not trying to drag him back in and the meeting was the opportunity for him to ask for whatever type of leave he wanted.  The Complainant confirms it was the letter that prompted his resignation by text on 22 April. 

It is put to the Complainant that he stated in his complaint form that he had received 5 pieces of correspondence prior to resigning and the Respondent will say he received one letter prior to resigning which was the letter inviting him to a meeting and the second letter was the one post-resignation requiring his resignation in writing and that both letters would have been sent using two modes of post – regular and registered which means 4 letters. 

It is put to the Complainant he indicated his resignation by text on 22 April and the letter gave him the opportunity to come back and formalise it if that’s what he wanted to do.  The Complainant accepts there was no mention by him of bullying or harassment and accepts there were no issues raised by him about how Mr Campbell handled his situation and he confirms he received discretionary payment up to the end of March. 

The Complainant confirms he has not been in employment since but he is not one to sit around and he has details of job seeking at home. 

CA-00073928-001

Overview of written submissions 

These outline written submissions are delivered on behalf of the Respondent in advance of a hearing before an Adjudication Officer appointed by the Workplace Relations Commission (“WRC”) in the absence of a written submission on the part of the Complainant. The Respondent reserves the right to make such further submissions as may be necessary at the conclusion of the hearing.

During the hearing the Respondent will refer to a booklet of supporting documents and caselaw where relevant and necessary.

The Complainant has brought a claim of constructive dismissal under the Unfair Dismissals Act 1977, as amended. This claim is vigorously denied and contested in full. Based upon the factual narrative of events appended to the Complainant’s WRC claim form (the contents of which are not accepted) the Respondent anticipates that there will be a significant conflict of evidence at the hearing of this claim and the Respondent reserves the right to cross examine the Complainant on oath.

The Complainant was employed by Dunnes Stores since 01 November 2004 and at the time of his resignation was employed as a manager. The Complainant was absent from work from the 12 March 2025 until he resigned by WhatsApp message on the 22 April 2025.

The Complainant’s mother was admitted to hospital on the 11 March 2025, and the Complainant attributed his ongoing absence to this. 

Throughout the period of the Complainant’s absence, the Store Manager, Mr Campbell maintained regular and supportive contact with the Complainant by telephone. During those interactions, Mr Campbell engaged sensitively with the Complainant and attempted to engage with the Complainant’s absence through the appropriate policies including by urging him to apply for Carer’s leave assuring him that he would support such application and stating that he could apply for either reduced hours or full leave. All of the Respondent’s employees may apply to take Carer’s leave pursuant to the Respondent’s Handbook. The Complainant never pursued this.

At the hearing of this claim, Mr Campbell will give evidence of the following interactions:

On Monday, 10 March 2025 while at work the Complainant advised Mr Campbell that his mother had fallen and had been admitted to hospital. Mr Campbell was very sympathetic and told the Complainant that he could leave work to go and be with his mother and he carried out the Complainant’s duties until the other Manger arrived to relieve him. Later that day the Complainant called Mr Campbell and told him that he would not be returning to work that day and would return on Wednesday (he was rostered for a day off on Tuesday).

On Wednesday the 12 March 2025, the Complainant contacted the Assistant Store Manager to say that he would not be at work as his mother had had another fall and the Assistant Store Manager covered for him that day.

The Complainant telephoned Mr Campbell on the 13 March 2025 and advised him that he would not be attending work.

On the following day, 14 March 2025, the Complainant telephoned Mr Campbell and advised that he would not be at work on the following day, 15 March 2025.

On the 15 March 2025, the Complainant sent a text message to Mr Campbell to say that he would not be in work the following week. The Complainant was requested to provide a letter from his mother’s doctor setting out the position.

On the 26 March 2025, the Complainant sent a screenshot of a letter from his mother’s doctor to Mr Campbell, who replied asking him to drop a hard copy into the store.

On the 27 March 2025, the Complainant called Mr Campbell and advised he hoped to be back the following week and would call on Friday. He later sent a text to say that he would not be back.

On the 4 April 2025, the Complainant called Mr Campbell with an update on his mother. The Complainant advised that he was unable to say when he would be able to return to work and it was during this call or thereabouts that the possibility of applying for carer’s leave was discussed.

On the 11 April 2025, the Complainant texted Mr Campbell to say he would call later with an update after the doctors had attended with his mother; he subsequently called to say he was still waiting for the doctor.

On the 15 April 2025, Mr Campbell called the Complainant for an update.

There was a discussion about his mother’s condition and when Mr Campbell asked about a return to work date, the Complainant could not provide this.  Mr Campbell informed the Complainant that, going forward, he would need to submit either medical certificates for himself or the appropriate leave application forms that had previously been discussed.

The Respondent’s employees may apply to take force majeure leave. The Complainant was clearly aware of this as he took force majeure leave on 4 February 2014 and was paid in respect of this leave. The Complainant did not apply to take force majeure leave.

It was also open to the Complainant to apply for Carers leave.

Again, he did not do so. Notwithstanding the fact that the Complainant had no contractual entitlement to be paid during this period of absence, the Respondent continued to pay the Complainant for the month of March on a discretionary basis.

The Complainant asserts that he received five letters from the Respondent in respect of his ongoing absence and that he felt “harassed and bullied by these letters”.  The Respondent did not send five letters as asserted. The Respondent sent two letters to the Complainant.  The first letter was sent on the 15 April 2025, at which point the Complainant had been absent for over one month.  This letter invited the Complainant to attend a meeting two weeks later on 2 May to discuss his ongoing absence from work.  This letter is courteous and professional and could not reasonably be construed as ‘bullying and harassment’.  In this letter the Respondent made it clear that if the proposed time or date did not suit the Complainant he would be facilitated with a different date and time.  In response to the letter of 15 April, the Complainant sent a WhatsApp message to Mr Campbell on 22 April which stated “got your letter this morning. I will not be returning to work. I have finished my employment with Dunnes Stores”.

While the Complainant now asserts that he felt he was being bullied and harassed into making a decision to resign, at the time he took no issue with the substance or tone of the letter, or indeed any of the other contact by the Respondent.

Mr Campbell proceeded on the basis of this message that the Complainant had decided not to return to work and consequently would not be attending the proposed meeting on02 May 2025.

The second letter was sent to the Complainant after his resignation- being the letter dated 28 April 2025 which issued from Mr Campbell to acknowledge receipt of the Complainant’s resignation and to ask him to provide this to him by letter which the Complainant did the next day.

This letter stated, ‘I Damian Tuite hand in my resignation’.

Again, this letter of the 28 April is courteous and professional and could not reasonably be construed as ‘bullying and harassment’.  It was in any event sent after the date of his resignation and consequently cannot be relied on by the Complainant to ground in the within claim.  Both letters from the Respondent (15 and 28 April) were sent in duplicate as the Respondent’s policy is to send letters of this nature by regular post and by swift post to ensure letters are delivered where no one is present to acknowledge receipt by swift post.

The Complainant was paid for all days in respect of which he was rostered for the period 11 March to 31 March 2025 and his final payment was processed in May 2025 (he was also paid for the May Bank Holiday and a half day in respect of accrued but untaken annual leave).

Legal submissions

The Complainant asserts that he was constructively dismissed and therefore, bears the burden of proof. Constructive dismissal is defined in section 1 of the Unfair Dismissals Acts 1977 to 2015 as follows: - “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.”

As such, it is incumbent on the Adjudication Officer to determine whether or not the Complainant has established that because of the conduct of the Respondent (as alleged at the time of his resignation), he was either entitled or it was reasonable for him to terminate his employment without notice to the Respondent. It is well-established that a claim of constructive dismissal imposes an onerous burden of proof on an employee. In Cedarglade Ltd (Formerly Pineglade Ltd) v Tina Hliban [2018] 7 JIEC 1302, the Labour Court stated the law applicable to constructive dismissal claims in the following terms:

“Section 1 of the Act envisages two circumstances in which a resignation may be considered a 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 [1978] IRL 332. 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 and, if so, she is justified in leaving. In 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 UDA474/1981.”

The Court continued: “In advancing her claim of constructive unfair dismissal under the Acts the Complainant must demonstrate that the Respondent has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for her to remain in her employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective. Therefore, the Court must examine whether or not, by the application of a normal standard of reasonableness, an employee in the same circumstances as the Complainant would be justified in resigning in response to the employer's conduct, whether or not that result was intended. In the Supreme Court case Berber v Dunnes Stores [2009] ELR. 61 Finnegan J. held:- “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 first question for the Court to decide, therefore, is whether or not, because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for her, to terminate the contract of employment. This is a stringent test, which is often difficult to invoke successfully.”

There was evidently no breach by the Respondent going to the root of the Complainant’s contract of employment, or which showed that the Respondent no longer intended to be bound by one or more of the essential terms of the Complainant’s contract. Nor does the Complainant allege that there was any such breach. Instead, the Complainant appears to assert that the behaviour of the Respondent in sending a letter to him to request a meeting two weeks later to discuss his ongoing absence was unreasonable and constituted his being bullied and harassed into making a decision to resign.

In this regard, the Respondent relies on the decision of the Supreme Court in Adam Berber v Dunnes Stores Limited.

In considering the ‘reasonableness test’ the Supreme Court held that the relevant legal test is, as follows: -

"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 cumulative 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".

It is clear from Berber that the test to be applied is an objective one. The Complainant has failed to satisfy this test. On no occasion did the Respondent behave unreasonably towards the Complainant. On the contrary, the evidence demonstrates that from 10 March to 15 April 2025, Mr Campbell maintained regular telephone contact with the Complainant, was consistently supportive and understanding of his personal circumstances, proactively suggested that the Complainant avail of carer’s leave, and requested that the Complainant formalise his absence by submitting medical certificates or carer’s leave application forms after more than five weeks had elapsed without any indication of a return to work date. By reference to the objective, reasonable and sensible standard set out by the Supreme Court in Berber, it is manifestly clear that the Respondent's behaviour was not such that the Complainant was entitled to resign.

Further, the Respondent’s Handbook in operation as at the date of his resignation contains a grievance procedure. The Complainant never made any complaint or sought to invoke this procedure before his resignation. He never wrote to any member of management or to HR during his absence raising the issue that he now raises; nor did he reach out to any member of management or HR during his absence other than by WhatsApp, copies of which are contained in the Respondent’s Book of Documents. Given that the Complainant failed to invoke the grievance procedure prior to resigning, he failed to afford the Respondent any opportunity to address and remedy the issues which he now seeks to rely on to justify his decision to resign. In this respect, the Respondent relies on the decision in Conway v Ulster Bank Ltd in which the Employment Appeals Tribunal held as follows: - “The Tribunal considers 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 further relies on the following statement of the Employment Appeals Tribunal in the case of Jabczuga v Ryanair Limited T/A Ryanair. “The claimant in this case failed to fully engage with and exhaust the grievance procedure available to her. In resigning in circumstances that a claimant asserts amount to constructive dismissal, such claimant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address and remedy any grievance. By resigning before the grievance procedure had run its course the claimant did not afford this opportunity to the respondent and the Tribunal is satisfied that she did not reasonably in so doing. Accordingly this claim pursuant to the Unfair Dismissals Acts, 1977 to 2007 fails.”

Like the employee in the Conway case, if the Complainant’s resignation was actually in response to the Respondent’s behaviour and that is in issue, the Complainant’s resignation was hasty and unreasonable and resulted in the Respondent having no opportunity to discuss and seek to resolve any concern the Complainant may have had which issue was entirely unknown to the Respondent before receipt of the within claim.

It is manifestly clear that there was no behaviour on the part of the Respondent capable of justifying the extreme step of resignation. The Respondent did not commit any identified breach of contract, much less any fundamental breach of contract evidencing a repudiation of the employment agreement and capable of justifying resignation. The behaviour of the Respondent was not objectively speaking unreasonable. The reasonableness test demands that an employee demonstrate that he had no reasonable option but to resign. That is patently not so in this case. The Respondent’s behaviour was entirely reasonable.

The Respondent submits that the Complainant has failed to discharge the onus of proof required to justify resignation on the basis of constructive dismissal.

The matters relied upon fall very far short of sustaining the claim advanced and the Respondent respectfully submits that the Adjudication Officer should have little hesitation in dismissing the claim.

Adjudicator Note

The Respondent representative made an application to dismiss the case after the Complainant’s cross-examination was complete.  Having carefully considered the application, it was not granted.  Accordingly, I proceeded to hear the evidence of the Respondent witness.  The application to dismiss is summarised by way of a closing submission on behalf of the Respondent.    

Summary of direct evidence of Respondent witness Mr Adrian Campbell (hereafter AC) on oath

AC is currently the store manager in Balbriggan and in Drogheda previously for between two and two and a half years.  AC completes the rosters four weeks in advance.  On Monday 10 March he arrived and met the Complainant at the staff entrance and he (the Complainant) said he needed to go and his response to him was off you go – go straight away and he picked up the reins as they cover for each other. 

AC submits there had been no inference that they needed the Complainant back at any time in any of the interactions between the two of them.  AC submits that today the Complainant has characterised his mother as dying but that was not his understanding at that time; his understanding was that his mother had taken a fall and that there was talk on 15 April phone call of Occupational Therapy, talk of step-down care and talk of a convalescent home.

AC submits today is the first he heard the Complainant’s mother was dying.  AC strongly disputes bullying or harassment or putting pressure on the Complainant.   The Complainant was out for a rolling period and they needed to tie down the situation and carer’s leave was suggested to him but nothing came of that.  The Respondent’s attitude would be to accommodate the Complainant as best they could and there was no directive to do otherwise.  AC confirms there were two letters sent via two modes of post. 

The purpose of the meeting was to do their best for the Complainant and to help too with respect to rostering as the leave he was on was open-ended at that time.  The phone call on the 15 April was to try and see where they were and he made enquiries about the Complainant’s mother and a mention of carer’s leave but it was more of a general call; nothing was sorted from the phone call. 

AC submits he handled everything with sensitivity; made him aware of his options.  He was on leave when the resignation text came in and he didn’t see it until the Saturday and he followed up on the Monday and he (the Complainant) would have had time to reconsider. 

The Complainant had no questions in cross examination for the witness. 

Respondent closing submission 

It is submitted the threshold for constructive dismissal has not been met by any measure.  There has been no breach of the first limb; no reference to any contractual breach.  There is nothing in the evidence to suggest conduct so unreasonable to consider employment to be at an end.  There has been a significant degree of latitude and sympathy shown.  There was empathy and sensitivity shown by Mr Campbell.

The Complainant remained on pay on a discretionary basis and he did not avail himself of the suite of policies available to him.  He was accommodated outside of any policy for month and there was a straightforward request to discuss his absence; not a relationship destroying request. 

The Complainant got an opportunity to reconsider, and he came back in terse terms.  There is a reciprocal requirement of reasonableness. 

CA-00073928-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented.   I have carefully considered the oral evidence adduced at hearing.  I have carefully considered the caselaw to which I have been directed.   I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters.

While much of the relevant factual matrix is agreed between the parties there is a gap in the mutual understanding and in the perception of the parties as to the manner in which events unfolded.    

I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing. 

Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

CA-00073928-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1977 (“the 1997 Act”)

The Relevant Law

Constructive dismissal is included in the definition of “dismissal” at section 1(b) of the 1997 Act as follows:

“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,”

There are therefore two situations envisaged in which a resignation may be considered a constructive dismissal; where the employer’s conduct amounts to breach of contract or repudiation of the contract (the “contract test”) or is such in relation to the employee that it was reasonable for the employee to resign (the “reasonableness test”).  

In short, a constructive dismissal case may arise where the employee felt their employer’s conduct was so untenable that they have no option but to resign or, again as a result of employer conduct, the employee has suffered a repudiatory breach of their terms and conditions of employment. As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute and therefore the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify him terminating his employment.

The Contract Test

The accepted statement of this test is by Lord Denning MR in Western Excavating v. Sharp [1978] ICR 221 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 discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  … [T]he conduct must … be sufficiently serious to entitle him to leave at once …”

The Reasonableness Test

Constructive dismissal may arise where the employer’s conduct was such that it was reasonable for the employee to terminate his or her employment.  Lord Denning MR addresses this concept in the

same case as follows:

“It is that the employer must act reasonably in his treatment of his employees. If he 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.”

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.  This is clearly set out in Reid v. Oracle EMEA Ltd [UD1350/2014] where the EAT stated: 

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”  [emphasis added]

In this regard, the Employment Appeals Tribunal in Conway v. Ulster Bank Ltd (UD474/1981) held that a complainant had not acted reasonably in resigning “without first having substantially utilised the grievance procedure to attempt to remedy her complaints.

The Labour Court in Ranchin v. Allianz Care S.A.[UDD 1636] held as follows:

“In constructive dismissal cases, the Court must examine the conduct of both 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.” 

InMary Kirrane v. Barncarroll Area Development Co Ltd [UDD1635] the Labour Court held that the person complaining of constructive dismissal must access available grievance procedures to deal with the circumstances which led him/her to resign.

In Berber v. Dunnes Stores [2009] 20 ELR the Supreme Court held as follows:

“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 Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee as a whole when assessing if constructive dismissal has in fact occurred; and the following four principles are noteworthy: 

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.

In Berber the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

“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.  An objective test means the issues detailed must be viewed not in relation to this particular employee and her personal circumstances; rather did the conduct of the employer objectively judged repudiate the contract. If not a contract breach, was the conduct of the employer so unreasonable to justify leaving?”

In considering whether there has been a constructive dismissal I have to determine whether there has been a repudiatory breach of contract by the Respondent, or, if there has been no repudiatory breach, whether the Respondent engaged in conduct which made it reasonable for the Complainant to terminate his contract. 

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v. Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The Complainant bears the burden of proving on the balance of probability that, due to a fundamental or repudiatory breach of contract and/or unreasonable behaviour on the part of the Respondent, he had no choice but to resign

The proofs which the Complainant must advance to prove his case are that the behaviour of the respondent and of which he complains corresponds with the requirements laid out in one or both of the two tests and was behaviour which left him with no option other than resignation. 

The Relevant Facts

The Complainant resigned from his employment and, therefore, is claiming that he was constructively dismissed.  In a constructive dismissal case, the fact of dismissal is in dispute, and it is up to the Complainant to prove on the balance of probabilities that he was constructively dismissed. 

The Contract Test

I must consider whether there has been a repudiatory breach of the contract of employment. 

The Complainant at hearing did little to advance or to engage with his constructive dismissal claim in terms of leading evidence in relation to which of the tests he seeks to rely on in grounding his claim. 

I note the Complaint in direct evidence submits it was the letter he received that prompted his resignation by text. 

I note the aforesaid letter issued further to a telephone conversation between the Complainant and the Respondent witness AC at which time the Complainant was not in a position to say when he might be back.

I note the letter set out as follows:

“With reference to your absence from Dunnes Stores since 10th March 2025.

I am requesting you to make contact with myself on receipt of this letter, to confirm your availability to attend a meeting to be held on Friday, 2nd May at 12.45am within the store.  If this date and time does not suit we can arrange an alternative date.” 

I have considered this letter in the context of the Complainant having been absent from work for what would almost have been two months by the time the meeting would have taken place on 2nd May.  I note the matter of carer’s leave or unpaid leave appeared to have been put to the Complainant during this time but he had made no indication as to what his intentions were apart from not being in a position to say when he might be returning.  I note at hearing the Complainant submits on more than one occasion that all he wanted was time and he believes it was the least he was entitled to after 20 years.

Notwithstanding, I accept there was a requirement that the Respondent regularise the Complainant’s position by way of the various leave option available to him.   I note the Complainant at hearing, upon enquiry, does accept that as a manager if one of his staff were absent that it wouldn’t be a ‘see you when we see you’ scenario and accepts that for rostering you need to know when someone will be available so provisions can be made for contingency in the meantime.   

I am unable to find that the impugned letter as set out above constitutes an action on behalf of the Respondent that could amount to a repudiatory breach of the contract of employment. 

On balance, I find that the Complainant has not pointed to any action on the part of the Respondent that demonstrates that there was a significant, or for that matter, a minor breach of his contract.

Having careful regard to the totality of the evidence 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. 

The Reasonableness Test

The proofs which the Complainant must advance in order to prove his case is that the behaviour of the Respondent and of which he complains corresponds with the requirements laid out in the reasonableness test and was behaviour which left him with no option other than resigning.  

It would appear the Complainant relies on the letter set out above to ground this element of his complaint also as there was no other evidence adduced.  I have carefully considered the letter and the context in which it was written.  I cannot find the conduct of the Respondent meets the standard of being “an arbitrary, capricious or abusive exercise of managerial power” as described in Gogay v. Hertfordshire County Council [2000]IRLR 7030, so that it made it reasonable for the Complainant to resign. 

While I have every sympathy for the Complainant with regard to difficulties he was experiencing in his personal life at this time I am bound to consider this complaint in light of the sworn evidence of the parties.  Moreover, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances. 

However, very little was proffered by way of facts or evidence that would support a claim for constructive dismissal on the grounds of unreasonable behaviour by the Respondent.  I accept the Complainant feels he has been treated badly but I am of the view he has failed to meet anything approaching the threshold with respect to constructive dismissal. 

Based on my careful consideration of the written and oral submissions, on balance, I find the Complainant has failed to discharge the burden of proof to support his claim that he was constructively dismissed for the following reasons.  There is no evidence to suggest that the Respondent no longer intended to be bound by any essential term of the contract of employment. 

Having carefully reviewed all the facts as presented to me I cannot accept the proposition that the Respondent’s conduct was such that the Complainant could no longer be reasonably expected to put up with it so as to leave the Complainant with no option but to resign.  In assessing if the conduct of this employer was so unreasonable that it led to this employee being constructively dismissed, I must apply an objective standard.  I must consider the behaviour of both the Respondent and the Complainant.    

The facts do not tend to support the test as referenced in Berber. 

It is regrettable the Complainant did not make use of the lengthy intervening period between when he resigned by text on 22 April and the date by which he was requested to provide his resignation in writing no later than 7 May by seeking advice from somebody or even chatting with a friend or family member who might have provided advice to him.  I am satisfied that if he had regretted his decision there was ample time for him to revisit it with the Respondent. 

There was a period of time of almost two weeks in which he could have reconsidered his resignation. 

It is an inescapable fact in this case that the Complainant resigned without engaging in any attempt at raising a grievance.   I am mindful of the Labour Court in the case of Mr O v. An Employer (no2)[2005] 16 ELR 132 where it was held as follows:

“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.” [emphasis added]

I am also mindful of the case of PeadarDuane v. Masonry Fixing Services Limited [UD35/2013] where the EAT determined as follows:

“It is incumbent on an employee in a constructive dismissal scenario to act fairly towards his employer, just as he is entitled to expect to be treated fairly by his employer. Part of this is that he will sufficiently notify his employer of any grievance and allow the employer a reasonable opportunity to resolve this. The claimant did not do so. He resigned before allowing the Respondent a reasonable opportunity to resolve his grievances.”

Having carefully considered the evidence and submissions, and applying the relevant law, I find that the Complainant was not dismissed, constructively or otherwise.  In the circumstances I find that the Complainant resigned from his employment of his own volition and he has not discharged the burden of establishing he was constructively dismissed within the meaning of section 1 of the Unfair Dismissals Act, 1977. 

For the reasons outlined above I am not persuaded by the Complainant that resignation was his only option.  Accordingly, I find that the Complainant has failed to establish he was constructively dismissed within the meaning of the Act and his complaint cannot succeed. 

CA-00073928-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1977

For the reasons set out above I decide this complaint is not well-founded.