Complainant

Respondent

Parties

Suzzanne  Dowling

Peter Mark Hair Salons Unlimited Company Peter Mark

Representatives

Seán Ormonde Ormonde Solicitors

Sarah Dowling IBEC

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-00067222-001

07/11/2024

The Complainant was employed with the Respondent from 25 March 1999 until 20 June 2024 when she resigned her employment.  The Complainant contended that she was constructively dismissed by the Respondent, having been treated in such a manner that she was left with no other choice but to resign from her position.

The Respondent refuted the claim in its entirety, proposed instead that its treatment of the Complainant was at all times fair and appropriate and contended that the cessation of employment did not meet the burden of proof to substantiate a claim for constructive dismissal. 

In her complaint form, the Complainant submitted that a decision was made that an aspect of her role, which she carried out one day per week was to be made redundant and the organisation was planning to hire unpaid stylists and student photographers to undertake the work. She outlined that this decision was made entirely without consultation with her and that unbeknownst to her, decisions were being made about her role and her work, superseding decisions made by her in her role at management meetings.

She outlined that the decision to make this part of her role redundant would leave her at least €500+ down in wages each month and she stated that she was told that her only alternative was to resume the Educator role on a full-time basis and work 5 days each week in the salon.  The Complainant stated that her childcare arrangements did not allow this (she had previously worked from home one day per week in the Creative role which was now being made redundant). She stated that there had always been a level of doubt from her manager who she stated had all sorts of concerns about who was managing her and who might manage her if that creative role was ever to go full time while working from home. She outlined that the combined effect of the above issues forced her to resign from her role.

Complainant submission

By way of background the Complainant submitted that

·       She was employed by the Respondent in various roles but most recently as an Educator and Creative Lead from 25 March 1999 until 20 June 2024

·       At the time of resignation, her gross salary was €1,020 gross per week

·       Following her resignation the Complainant was eventually re-employed on or about 28 June 2024 as a Stylist.

She outlined that she filed her complaints with the WRC on 7 November 2024 and accordingly, the cognisable period is 7 May 2024 until 7 November 2024. The Complainant confirmed that she was seeking redress for constructive dismissal contrary to the Unfair Dismissals Act 1977.

The Complainant submitted that at the time of her resignation, she had been working for the Respondent for some 25 years in various roles, beginning her career as an Apprentice and working her way up to become an Educator and a Creative Lead within the Respondent company. Part of the Complainant’s role involved styling and documenting new and innovative hairstyles and she had undertaken this work for some 15 years. The Complainant submitted that owing to her longevity within the company, and her commitment to both the brand and to the wider creative process at the Respondent, she approached her Manager, Ms Holly O’Keefe and sought to negotiate additional annual leave and a title which reflected the creative element of her role. Up until this point, she had been referred to as an educator and a stylist. She submitted that Ms O’Keefe was not receptive to this conversation, but agreed to discuss it with Senior Management however, she never reverted to the Complainant. In the interim, owing to the close professional relationship the Complainant had with Mr Peter O’Rourke (CEO of the Respondent), she approached him directly with her request and the pair arranged to meet shortly thereafter. She submitted that Mr O’Rourke was amenable to the Complainant’s requests and recognised the hard work she had put into building the Respondent’s brand.

The Complainant submitted that in or about the same period of time, she became aware that decisions she had made at management meetings were being superseded by Ms O’Keefe without consultation or explanation. She submitted that Ms O’Keefe also began to micromanage the Complainant, checking in on her location, being short in tone with her and no longer allowing the Complainant the flexibility which had previously been permitted.

During this period of time, the Complainant experienced the breakdown of a long-term relationship with a partner with whom she shared a small child, and she had communicated these difficulties to Ms O’Keefe. Ms O’Keefe offered her access to the EAP program and advised her to take a day off if she needed however outlined she “can’t give you anymore”. When the Complainant took the offered day off, her wages were reduced.  The Complainant felt Ms O’Keefe’s treatment of her resulted solely from the Complainant seeking of a new title which more accurately reflected her role and for requesting two weeks of annual leave per year given her length of service with the Respondent. Exasperated by being repeatedly blocked in her progression and targeted by Ms O’Keefe, the Complainant resigned her employment on the 10th of August 2023.

Some days later, following receipt of an explanation email addressed to him from the Complainant, Mr O’Rourke (CEO of the Respondent) advised her that neither he nor anybody else in the company wanted to see her leave and arranged a meeting to resolve matters. Mr Mark Keaveney (the Owner of the Respondent) advised the Complainant that whilst he did not “make the rules” he felt that what she was requesting “was not a big ask”. Mr O’Rourke did however advise that “no one in the company gets two weeks annual leave”. The Complainant knew this not to be the case. In any event, Mr O’Rourke agreed to increase the Complainant pay rate to allow her to take the leave at her own expense. The pair left the meeting amicably. However, the following day Mr O’Rourke telephoned the Complainant and advised her that Ms O’Keefe was “saying no, she can’t do it for you” referencing the increase in pay. By now, the Complainant just wanted to return to her work, given the considerable pressures in her personal life and was assured by Mr O’Rourke that she would return to work with a new contract shortly with a pay rise. The Complainant was out of work for a total of five weeks. When the Complainant received her new contract, she noticed that it stipulated she work five days per week in the training college as opposed to the four days she had been working since the birth of her daughter. Previously the Complainant had been paid €920 for four days of work and under the new proposed contract, she was to work five days and be paid €1,020. Without her agreement or consultation, Ms O’Keefe had also unilaterally decided to make a number of changes to the Complainant’s role. The Respondent now intended to hire unpaid stylists and student photographers, which would now encompass the creative aspect of the Complainant’s role, making the creative aspect of her role redundant.

However, this decision would leave the Complainant in financial distress as a now single parent. The Complainant had childcare difficulties also and this was the reason she had worked from home one day per week. The alternative arrangement which was put to the Complainant required her to work 5 days per week from the salon, which her childcare arrangements did not permit, confirming that the Creative aspect of her role was gone. The Complainant felt she was ultimately forced to again hand in her resignation to the Respondent on the 13th of June 2024, having been put in the impossible position of having to choose between accepting less remuneration or find, what is known to be an impossible task in the current environment, childcare for an additional one day per week, which would have come at a cost to the Complainant and actually have reduced her take home pay each week. It was evident that the creative role as it existed was being made redundant by the Respondent. The Complainant, trying to make the best of a bad situation in the said email outlined that she was excited to commence a final week of working in the Respondent.

Reflective of the general attitude of the Respondent, the Complainant was met with a reply that it would be in “everyone’s best interests” if she did not return. As a result, the Complainant was not even afforded the opportunity of saying goodbye to her colleagues after 25 years.  It was the Complainant’s position that when she raised concerns about her workload and her pay she was initially in receipt of a level of perceived consideration from the Respondent. However in hindsight she submitted this was entirely a means to an end for the Respondent, and a way for them to force the Complainant to resign (and attempt to break her service of 25 years). She submitted that it was evident the Respondent did not value the creative role she fulfilled, despite the benefit it brought to the Respondent and had no interest in continuing to support the Complainant, a now single mother of a 2 year old child.

The Complainant noted that Section 6(1) of the Unfair Dismissals Act, 1977 reads as follows: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Further, she noted that an onus is placed on the Respondent by Section 6(6) of the Unfair Dismissals Act 1977 which provides; “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the Respondent to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal”

Constructive Dismissal.

The Complainant noted that Section 1 of the Unfair Dismissal Act defines constructive dismissal as: “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 Respondent in the circumstances in which, because of the conduct of the Respondent 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 Respondent”

The Complainant submitted that this statutory definition of (constructive) dismissal provides for two tests, the contract test and the reasonableness test. The contract test is where the employee argues that he or she was “entitled” to terminate the contract because of the conduct of the Respondent which constitutes a fundamental breach of the employee’s contract of employment. The second test, which is the reasonableness test, has two elements. First, an employee may allege that while an employer may have acted within the terms laid down in the contract of employment its conduct may be none the less unreasonable. Second, the employee has to show that he or she acted reasonably in terminating the contract of employment in the circumstances. This latter element is a key factor as it requires the employee to have considered all other possibilities prior to taking the step of terminating his or her employment.

The Complainant submitted that the contract test has been summarised in Western Excavating (ECC) Ltd. v Sharp by Lord Denning MR as: “If the Respondent is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the Respondent 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.” In unilaterally changing her contract, alleging part of her role was redundant and forcing her to return to the training college full time the Respondent behaved so unreasonably that the Complainant was entitled to treat herself as discharged from any further performance.

The Complainant noted that the reasonableness test was outlined in the case of Cedarglade Limited v Tina Hliban, wherein the Labour Court noted that "the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment".

In Murphy v CLI Insurance Services Limited, the EAT noted that "in a constructive dismissal case theemployee must show that because of the Respondent's conduct he was entitled to resign". The Complainant submitted that the circumstances of this case, traversed in detail above are more than sufficient to shift the burden back to the Respondent.

In the case of A General Operative v. A Religious Society (ADJ-00002814) it was held by the Workplace Relations Commission that in claims of constructive dismissal: “The critical issue is the behaviour of the Respondent… Generally, the criterion regarding the behaviour of the Respondent is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment…In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the Respondent’s behaviour.”

The Complainant submitted that not only was the respondent’s behaviour in this matter so unreasonable but that her resignation was a reasonable response.

Redress

The Complainant submitted that she made sustained and considerable efforts to seek further employment in order to mitigate her losses. She submitted that her total losses up to the date of the complaints having been lodged with the WRC (including the difference in earnings over an 18 week period) amounted to €12,225. The Complainant noted that the Unfair Dismissals Act 1977 provides for compensation not exceeding 104 weeks’ remuneration, but if no such financial loss was incurred an order not exceeding four weeks’ remuneration may be made.

Representation on behalf of the Complainant at hearing:

In addition to an outline of the written submission provided, Ms Walsh confirmed that the Complainant’s initial start date with the Respondent was 25 March 1999, that her service was not broken, that while she was out of work for a short period of time, conversations were being had in relation to the extension of her role, in those circumstances Ms Walsh stated that continuity of service was applicable in this instance, and opened the case of Ennis V Toyota, UD597/1983.  She referred to the decision in that case which noted that the recommencement of employment was “immediate” and within a four week and she drew attention to the fact that the break of service in this case was nearly five weeks.  She stated that throughout that period of time there had been continuous conversations with the Complainant about her coming back to work and in those circumstances her service was not broken, and she was entitled to take her case.

Ms Walsh outlined that the Complainant had 25 years of experience and that despite this she was forced to terminate her employment due to the unreasonable behaviour of her employer.  She stated that the Complainant had very much felt part of the Peter Mark Family and that she was massively valued for her work, that she had ended up carrying out a dual role, that of Educator and Creative Lead.  She outlined that the Complainant had wanted to advance the role of Creative Lead, but that she was pushed out the door.  She stated that the Complainant needed time for stability after the break-up of her relationship and the personal issues resulting therefrom but that at that time there was an attitude change in relation to her and that she was micromanaged by her line manager.

Witness evidence – the Complainant:

The Complainant confirmed that she started work with the Respondent in March 1999 when she was aged 14, that she commenced as an apprentice with the Respondent at age 15 and that she had 25 years of service with the Respondent.  She confirmed that she was employed predominantly as an Educator but that she also did creative work.  She confirmed that she took on singlehandedly all of the shots, dealing with all the models, photographers, stylists and the displays that went into windows and that she managed all shows on behalf of the Respondent.  She stated that she would have liked to have developed the role to become a Creative Director and that this had been done before, and it was her ambition to build a team around the country.  She stated that she had commenced discussions with the Respondent advising that she was looking for a more creative role, that she was being asked to take on more and more duties in that area, and that she was hoping to grow a creative team.  She confirmed that she used to do 39 hours a week, 8 hours research and development and 31 hours education, but she confirmed that the research/creative role workload was getting heavier all of the time.  She stated that she tried to explore options but that she got nothing additional for expanding the role and that following discussion, she sought two weeks additional leave.  She felt that Ms O’Keeffe was not particularly open to the suggestion but that she agreed to go and check.  She stated that there had been some discussion about additional remuneration but that she had explained to Ms O’Keeffe, that as a mother, the time and additional leave would be most important to her.  She confirmed that she didn’t approach anybody else at the time, that she spoke directly to her manager and assumed that the answers were coming from on high.  She did confirm that after talking to Peter there had been some discussion about money but that she had clarified that she did not want additional money and that the time off was most important to her.  She noted that other staff got additional time and so she considered it fair to look for that.  She stated that she was hoping that the matter could be resolved and that they would agree, and that she was heartbroken when matters were not resolved and that it was like “a gut punch”.  She confirmed that when she handed in her notice, she met with Richard, who was the Area Manager, and that she was offered to go back as a stylist but that as she had fibromyalgia, this was not suitable.  She confirmed that she then spoke to Cathal, who said it wasn’t up to him and that she should speak to Peter.  She confirmed that she sent an email to Peter looking to meet.  She stated that working in Peter Mark was her whole life.  She noted that she had difficulties in her home life and that she was late in life having a child and that the company were aware of the difficulties in that regard as she had advised her Line Manager of the circumstances. 

She confirmed that she was due to finish on 15 October and that she arranged to meet Mr O’Rourke who provided a warm email response to her request.  She stated that they had a brief meeting at which she asked about the annual leave, and he confirmed to her that nobody got that amount of extra leave.  Instead, he had suggested to her an increase inpay,y and which would enable her to take the additional two weeks leave as unpaid leave if she so required.  She confirmed that following that initial discussion she had a further meeting with Mr. O Rourke and her Line Manager and that she felt she was ambushed, that she was put back in her box, and that it was made to look like she was trying to get things out of them.  She stated that it was not a nice meeting and that they were very aggressive, that it was completely unnecessary and that she became very upset in the meeting.  She stated that afterwards her Line Manager had said it was one of the worst meetings she had ever taken part in.  She confirmed that she needed to get her job back and that she didn’t care about the holidays and that she was hoping that a new package would be put together because she needed her job. 

The Complainant confirmed that when she when she had returned to work  from maternity leave, she was due to work five days but that she sought four days a week.  She confirmed that the agreement reached was that she would work four days a week on site but that she would work an additional day from home in a new creative role.  She confirmed however that when she did return to work, meetings were scheduled for a Friday, and it felt like she was being monitored to check if she was actually working on a Friday.  She said that her Line Manager was less than approachable, that she had been friendly before but that she had very much taken a managerial approach and that “the wall went up”.  She said she didn’t feel she could approach her. 

The Complainant stated that her Line Manager asked for a chat in relation to a shoot that was due to take place in August and a show due in September and that she was also working in the background on an extra shoot.  She said that the Line Manager said that they were looking to go in a different direction and she had two options.  She could either reduce to a four-day week or work five days as an educator on site.  The Complainant stated that neither of these arrangements were suitable to her because of her childcare arrangements.  She also confirmed that the shoot that was planned for August was cancelled without her even being told.  She said it was very clear that the continuous message coming from the Respondent was that they wanted to go in a different direction and that there was no place for her role.  She confirmed that she was already at a loss of money as part of her new contract and a four-day week was simply not affordable and that she was left so upset and pushed aside and that she felt that she had no choice but to leave. 

The Complainant gave evidence that the role she had wanted and worked to develop was being given to others and that it was only going to be given to somebody who was newly appointed.  She stated that she was never told that this role was going to be a temporary role.  She stated that her previous colleague, (MC), was now the creative lead.  In addition, she stated that in the past if she had been abroad, she could work remotely on the creative side and confirmed that under the new contract this would not have been possible.  She also confirmed that while on holidays she had always carried the salon phone, seven days a week, and was always contactable while on holidays, but that on a particular occasion when it was her sister’s birthday, she was not allowed to do so.  She confirmed that having resigned, she wanted to go back to work in order to work out her last week and to say her goodbyes to people after all of the years, but that she was told she was not to go back to work and that she was paid in lieu of notice. 

In relation to mitigating her loss, the Complainant confirmed that during her first week of unemployment she had not sought additional work, that she was so upset and she had instead sought advice in relation to her employment.  She confirmed that she had a friend who owned a salon and that she had spoken to him about matters.  She stated that she spent time checking on her entitlements and that as a result of the stress caused by the events prior to her termination of employment, her fibromyalgia flared up again.  She confirmed that she did get work with her friend who owned the salon and that she commenced working with him on the 17 July 2025.  She stated that this resulted in her being back styling after fifteen years and working 19 hours per week and drawing the single parent supplement.  She stated that this was still having a massive impact on her in relation to how she left the organisation after such a prolonged period and to have no relationship at this point with the Respondent was very upsetting and she felt she could not go back into the salon. 

Under cross examination the Complainant gave evidence that she worked as an educator four days a week and in a creative role one day a week.  She confirmed that the educator role was worked Monday to Thursday, between the hours of 9 and 5, and that she had different students each day.  She confirmed that sometimes she did stay late if students were working late as she could not leave and that this often resulted in a 15-30 minute extension of her finish time.  She advised that every day and week was different.  She confirmed that she did the creative role remotely and that it was rare that she would have to come on site.  She confirmed that she spent a full eight hours or more each week working on the creative side and that she worked additional hours of her own volition when needed.  The Complainant gave evidence that she spread those hours across the week and that she did not work specifically on a Friday as it was not feasible for her to do so and that throughout her time she continued to work the additional hours across the week. 

In relation to the Respondent hybrid policy, she restated her position that she worked sporadically across the week, working the eight hours as additional hours Monday to Thursday.

In relation to booking of annual, the Complainant gave evidence that she advised her Line Manager of annual leave being taken and that the salon were also aware.  She also stated that the company was aware because she always had the salon phone.  She confirmed that she was never paid anything additional for that support to the salon. 

The Complainant gave evidence that there were other people working additional time to get time off and that in fact the Line Manager was herself a four dfour-dayer.  She confirmed that she had many conversations with her Line Manager and that they had a very close friendship and that there was no interference in relation to her working arrangements up to the time of her maternity leave, but that after that, everything changed.  She confirmed that she advised her Line Manager of the childcare arrangements and issues that she had and explained that she needed time on Friday.  She said she also advised of other personal struggles and that she had advised her of her partner’s addiction issues and her need to collect her child.  She confirmed that when the issues arose initially, she had been given a week of time off at her own expense to resolve her issues.  She confirmed that she had always wanted to do a good job and that she considered work to be an escape from the situation at home and that she had help from members of her family.

The Complainant confirmed that when she had the first conversation with her Line Manager in relation to her personal circumstances, she found her not to be very accommodating and noted that she said to her “I’ll accommodate this time, but you’ll have to sort something out”. 

In response to questions from the Respondent representative in relation to being asked to reconsider her resignation, the Complainant confirmed that when she came back, she felt like she was having a breakdown, that she told the Respondent about her personal life and the issues with the response to her request.  She stated that she had reached out to Mr O’Rourke regarding a possible return date and that this resulted in a very bad experience.  The Respondent representative asked her if things were so bad why she had returned to work and she confirmed that it was only after her return the first time that the relationship with the Line Manager changed. 

The complainant confirmed that she received a new contract at that time and signed that contract and she confirmed that she was in receipt of a pay increase.  She confirmed also that she met with Mr O’Keeffe prior to her return and that they had discussed flexibility.  She confirmed that they had discussed Friday’s and how she would work them, and they had also discussed how she wanted to see the creative side grow and to progress her career.  She stated that afterwards she felt that they didn’t want her, and they wanted her back in the role of full-time educator and that she felt she was being pushed out of the creative role.  She said she was not in a position to grow the role and that the role was no longer available and that the only option she was left with was to take on either a four-day week as an educator or a five-day week as a stylist.  She stated that when she asked if she was being made redundant, the Line Manager had said to her that only the role of educator was being made redundant, and she confirmed that it was her understanding that Mr Corcoran does the creative role in the same way that she did it outside of the four-day educator role. 

The Complainant representative redirected some queries to the Complainant, and she gave evidence that Peter Mark was aware that she was working her creative hours across the week.  She confirmed that two named managers had confirmed to her that she could do those creative hours as required and that they would pay her for five days.  She confirmed that  she always came into the salon in December because it was such a busy period and that there were some other busy periods when it was not unusual for her to attend the salon on Fridays.  She confirmed that as far as she was aware, the job was structured as before and there was no significant change. 

Closing Statement on behalf of the Complainant

Ms Walshe confirmed that the Complainant had outlined her case in the submission provided and in the oral evidence given at hearing and that in doing so she had surmounted the threshold for a constructive dismissal.  She stated that there were contradictions in the evidence given by the Respondent and that the letter of resignation bore out what the Complainant had said.  She stated that the Complainants evidence was clear, that it was in time based on the case law outlined in the submission and on the basis that the discussion in relation to the terms and conditions took a mere five weeks and in those circumstances, there was no break in service. 

In its submission the Respondent noted that in her complaint form to the WRC, dated 07 November 2024, the Complainant alleged that she “had to leave her job due to the conduct of her employer or others at work”.  The Respondents outlined its position that at all times, it’s treatment of the Complainant was fair and appropriate, having regard to all of the circumstances and as provided for under statute. The Respondent refuted the allegation in its entirety. In particular, the Respondent contended that the cessation of employment did not meet the burden of proof to substantiate a claim for constructive dismissal.

Preliminary Issues:     Length of service for a claim under the Unfair Dismissal Act

The Respondent noted that “Section 2 (1) A of the Act states; “This Act shall not apply in relation to any of the following persons: (a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the Respondent who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,”

In this context the Respondent outlined its view that the Complainant did not have the requite service to continue with a claim under the above referenced act and submitted that speaking to continuous service, the legislation governing the Minimum Notice and Terms of Employment Act 1973 as revised in October 2020, addresses the continuity of service as follows:

 First Schedule – Section 4 (1) “The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by (a) the dismissal of the employee by his employer, or (b) the employee voluntarily leaving his employment.”

The Respondent contended that the Complainants employment and length of service diminished upon her first resignation on 15 October 2023 and subsequently began from day one when she came back to employment on a new contract with a new rate of pay on 20 November 2023. It was the Respondents view that the Complainants service was broken upon her first resignation and therefore did not align with the scope for a claim under The Unfair Dismissal Act 1977 – 2015.

The Substantive Issue

The Respondent submitted that the Complainant recommenced employment with the Respondent on 22 November 2023 as an Educator/Creative Lead on a full-time basis, with a new contract of employment and role profile and that she continued in that role until her employment ended by reason of voluntary resignation on 20 of June 2024. The Complainant earned an annual gross salary of €53,040 and was contracted to work 39 hours over a five-day working period of Monday to Friday. The Respondent provided a copy of the Complainant’s contract.

The Respondent submitted that prior to this, the Complainant was employed by the Respondent on a full-time basis – five days a week, from 24 March 2001 to 15 October 2023. During this course of employment, the Complainant was employed as an Apprentice and further promoted to Stylist/Educator in 2009 with a full-time permanent contract and that this was until she voluntary resigned from her position on 15 October 2023. The Respondent provided a copy of the relevant contract of employment.

The Respondent submitted that in January of 2022, prior to returning to work after a period of Maternity Leave, the Complainant sent an email with a proposed structure of working arrangements to her Line Manager, Ms. O Keeffe and that following this, Ms. O’Keeffe had a meeting with Mr. Cathal Keaveney, Director, and handed over the proposal, as Mr. Keaveney was the only person who could sign off on this. The Complainant had requested a reduction in her working week to four days; while maintaining the same rate of pay and parking she would have received for a five-day working week. The Respondent submitted that the Complainant and Mr. Keaveney, agreed that this could not be facilitated and again agreed that the Complainant would continue a 5-day working week and focus more on the creative aspect of her role, such as the preparation for photoshoots, creative shows and delivery of same, thus providing some form of flexibility for the Complainant. On the Complainant’s return to work in June 2022, she did not request Parents or Parental Leave and did not inform her direct line manager, Ms. O’Keeffe, of her intention to take same. In respect of the Complainants return to work, she did maintain a pattern of varied working arrangements, as she had before her period of maternity leave and this arrangement saw her work from home on Fridays where possible and on site on Fridays where she was needed to support the style shoots and shows.

The Respondent submitted that shortly after this meeting, the Complainant met again with her line manager on the 16 of March 2023. During this meeting, the Complainant requested a new title to support the creative elements of her Educator role. This arose due to the Complainant being uncertain as to what she was identified as, in a professional capacity. Following this meeting, Ms. O’Keeffe spoke with Ms. Claire Cotterell, HR Manager and Mr. Peter O’Rourke and it was agreed that a title of Educator/Creative Lead would be given to the Complainant. Following this, the Complainant was on a long period of Parents Leave and Annual leave, further resulting a delayed response to the Complainant with this agreed title.

The Respondent submitted that on the Complainants return from the above leave, she met with Ms. O’Keeffe where she further requested an additional two weeks of annual leave to coincide with her new title. Ms. O’Keeffe did look into this request and shortly after, notified the Complainant that this was not something the Respondent could facilitate as it would potentially impact her colleagues in the view of workload and the taking of their annual leave, while also setting a precedent amongst the team. The Respondent submitted that at a further meeting with Ms. O’Keeffe on 2 August 2023, the Complainant discussed her request of the additional two weeks annual leave being denied. This meeting lasted a total of two hours with Ms. O’Keeffe highlighting the following points to the Complainant:

·       Employees of the Respondent receive four weeks annual leave; an additional two weeks leave would entitle the Complainant to have a period of 6 weeks annual leave.

·       Ms. O’Keeffe explained the Complainants remaining entitlements to both Parental Leave and Parents Leave and explained on how to apply for same.

At this meeting the Complainant further requested a period of two weeks unpaid leave, to which she was told this that could not be facilitated either due the high demand it would put on the team. This would have seen the Complainant receive a total of four weeks paid annual leave and two weeks unpaid leave per year. The Respondent submitted that the Complainant expressed to her line manager that she knew it was an unreasonable request.

The Respondent submitted that on the 10 August 2023, the Complainant approached Ms. O’Keeffe, informing her of her intention to resign and stated that her reason was due to the denial of the additional annual leave requests. Ms. O’Keeffe regrettably accepted that resignation on behalf of the Respondent and stated that the Complainants role was still available as per her request if she changed her mind. The Complainant’s final day of work with the Respondent was 15 October 2023. The Complainant then sent a voice note to Ms. O’Keeffe, via WhatsApp on the 16 August 2023, requesting to attend and lead The Colour Trophy Show that was scheduled for the 15 October 2023, the Complainants last day of work. This was agreed and the Complainant attended. This was an opportunity for the Complainant to see her work showcased and celebrate with her colleagues.

The Respondent outlined that there were multiple conversations between the Complainant and Ms. O’Keeffe, where the Complainant openly discussed her emotions surrounding her departure and choice of resignation. Ms. O’Keeffe openly expressed that she did not want to lose the Complainant from the team and gave her many opportunities to reconsider. However, the Complainant chose to resign from her position, alleging that this was as a result of the denial of her additional annual leave request and further highlighted that she felt the role that she was in was not evolving. During these conversations, Ms. O’Keeffe made the Complainant aware of other roles, should the Complainant wish to consider those. However, the Complainant did not explore any internal vacancies with her.

The Respondent submitted that on 10 October 2023 the Complainant sent a lengthy email to the Respondents CEO, Mr. Peter O’Rourke, five days prior to her cessation date. She outlined her reason for resignation, specifically outlining how extensive the Creative Lead role was and how her request for additional annual leave corresponded with same, and that in that context, it should not “seem so unreasonable” for Mr. O’Rourke to consider. The Complainant addressed how she understood that the Respondent wanted to ensure continuity when considering employee entitlements, but she felt as though her role was bespoke to her, therefore meaning no one else in the company could carry out the duties which she felt further supported her request. In response, Mr. O’Rourke sent a brief reply highlighting his position and made it clear that he did not want to see the Complainant resign. He further extended an opportunity to meet with the Complainant. The Respondent submitted that on 6 November 2023, Mr. Peter O’Rourke and Ms. O’Keeffe met with the Complainant. At that meeting the Complainant expressed to both, how she wanted to reapply and return to employment with the Respondent. The Complainant additionally requested that she obtain the two additional annual leave weeks, a pay rise and her previous title as Educator/Creative Lead. As before, the additional annual leave request was denied, however, the increase in pay was to be considered. It was also agreed that the Respondent would contact the Complainant with prospective terms and conditions for the Educator/Creative Lead Role.

The Respondent submitted that the Complainant contacted Ms. O’Keeffe on 15 November 2023 to discuss her return to work. Ms. O’Keeffe furnished the Complainant with a suitable return date of 20 November 2023, and a new contract of employment with a pay rise agreed. Additionally, the Complainant also received a full role profile for the role she was returning to. On her return the Complainant issued Ms. O’Keeffe with a series of annual leave requests for the year following. Specifically, the Complainant requested Thursday 30 May 2023, as she had expressed that she was going away for the weekend. Ms. O’Keeffe asked the Complainant if she needed Friday 31 May 2023 off, to which the Complainant expressed that she did not need this day off as she was going to work from Portugal. Ms. O’Keeffe clarified that the Complainant could not work from Portugal and referenced the Hybrid Working Policy where it “Remote working – this is where an employee regularly carries out all or some of their duties from a remote location. This can be from the home, a co-working space or ahybrid model where work is carried out partly in the office and partly remote working.” Prior to discussing the Friday annual leave request, the Complainant was happy to fly to Portugal and work without informing Ms. O’Keeffe.

The Respondent submitted that in December 2023, the Complainant worked in the Grafton Street store fulfilling her contracted 39 hours per week, to cover the Christmas shifts and returned to her Educator/Creative Lead role in January 2024. The college reopened on 02 January 2024.  On 10 of June 2024, Ms. O’Keeffe had a conversation with the Complainant and expressed how the Creative side of the business was growing, and the Complainants presence would be needed more on site on Fridays in order to facilitate this and the growing demand. Ms. O’Keeffe expressed that the company was going to enter into a transitional period involving the creative side of the business to allow growth and development. As the Creative lead, the Complainant’s involvement was very much needed in this and speaking to the hybrid working policy, Ms O’Keeffe stated that while this side of the business was growing, it would be necessary for the Complainant to be on site on a more frequent basis for a period of time, to which the Complainant did not raise as an issue, however, she did state that she was not available to be on site on Fridays due to childcare issues.

The Respondent submitted that following on, the Complainant asked Ms. O’Keeffe were there any other alternatives available to her as she expressed that she could now not work on a Friday to which Ms. O’Keeffe, outlined how an arrangement could be made to facilitate this transition and gave an example of how the Complainant could reduce her working hours from a five-day working week to a four-day working week. The Complainant requested that she maintain a salary that covered a five-day working week whilst only working four days. Ms. O’Keeffe stated that she would revert back to the Complainant on this request once she discussed this with higher management. The Complainant expressed that she didn’t care about the Creative Lead role, but she did not want to drop a day’s wage if she went to a four-day working week. The Respondent further submitted that during the same conversation, Ms. O’Keeffe explained that no definite details were signed off for this growth and it was in the early stages. Ms. O’Keeffe felt that this was a complete turnaround given the fact that the Complainant had previously worked on site when needed on Fridays and further to this, was always contracted to work a five-day week and that prior to this the Complainant, at no time during her employment with the Respondent expressed that she could not work on Fridays in the college due to an issue with Childcare. The Respondent also noted that the Hybrid working policy states that working from home should not be used for the minding of children and further noted that this was a fact that the Complainant failed to make the Respondent aware of.

The Respondent outlined that following on from the conversation above, Ms. O’Keeffe met with the Complainant on 12 June 2024 and explained that the request to work four days and be paid for five was unfortunately denied. Ms. O’Keeffe expressed that the 4-day week would be paid on a pro rata basis. During this conversation, Ms. O’Keeffe reiterated to the Complainant that this transitional period was still in its early days and no definite plan had been made. She further outlined to the Complainant that her presence on site for the Friday of the working week would only be for a sporadic period, and she would still maintain flexibility within her role.

The Respondent submitted that the Complainant contacted Ms. O’Keeffe by WhatsApp on 13 June 2024, to notify her of her absence and that following on from her previous contact with Ms. O’Keeffe on 13 June 2024, the Complainant emailed a letter of resignation.  Ms. O’Keeffe then sent an email to the Complainant accepting her second and final resignation.

The Respondent noted Section 1(b) of the Unfair Dismissals Acts, 1977 – 2015 (as amended) which defines dismissal in relation to an employee as, inter alia: “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 Respondent, in circumstances in which, because of the conduct of the Respondent, 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 Respondent” and submitted, in light of this definition, and established principles adopted by the WRC and the Courts, that there exists a burden on the employee to demonstrate that:

(a)    The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the Respondent, or

(b)   The Respondent had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

The Respondent submitted that it is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. The Respondent submitted that neither criterion had been met.

Contractual test

The Respondent submitted that at all times it operated within the terms of the contract of employment between the parties and no contractual violation occurred. The Respondent noted the explanation of the contractual test for constructive dismissal as set out in Conway v Ulster Bank (UD474/1981) to confirm this position, in that the Respondent did not violate any term of the contract or organisation policies, expressed or otherwise. The Respondent submitted that it’s actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the Respondent no longer intended to be bound by the contract”. No change occurred in the contract to make it “so radically different from what was before”. The Respondent outlined its position that it fulfilled its contractual obligations, implied and otherwise, at all times. In light of this, it was the Respondent’s position that the termination of employment fails on a contractual test to be a constructive dismissal.

The Respondent noted that in justifying her decision to terminate her employment, the Complainant would have to demonstrate that the circumstances of her dismissal met the tests as set out by Lord Denning, MR in Western Excavating [ECC] v Sharp (1978) IRL 332, and described thus: “conduct which is a significant breach going to the root of the contract of employment, or which shows that the Respondent 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”.

The Respondent also noted that in VAT Operations Manager v Manufacturer of building and construction products (ADJ-00022491,), the Claimant argued that the functions assigned to him were beyond his contractual obligations, as well as beyond the level of expertise he had brought to the organisation. He stated that he had to take on responsibility outside of his competency level and his team were severely understaffed, which led him to resign citing constructive dismissal. The Adjudication Officer found that while it was undoubtedly a very difficult situation for the Claimant, short on the latitude expected by him, this was not the bar which the Claimant had to surmount to demonstrate that the Respondent’s conduct was so unreasonable as to leave him with no choice other than resignation.

The Respondent further noted that the Claimant failed to meet the tests set out in Western Excavating (EEC) Ltd v Sharp [1978] IRL 332. His claim failed and he was not found to have been unfairly dismissed.

Reasonableness Test

In respect to reasonableness, it was the Respondent’s position that there exist two interwoven factors to be considered:

(a)    did the Respondent act unreasonably so as to render the relationship intolerable, and

(b)   did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures.

The Respondent noted that this accorded with established approaches as expressed by the Tribunal, for example in McCormack v Dunnes Stores (UD 1421/2008) where the Tribunal stated: “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the Respondent's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

Reasonableness: the conduct of the Respondent

It was the Respondent’s position that it acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct.  It was also the Respondents position that all of the Complainants requests through her employment were considered and thorough business explanations as to why they could not be facilitated were delivered in response. Further to this, the Respondent went above and beyond what any reasonable employer would do in this instant case. The Respondent sought to retain the Complainants employment by holding in depth discussions and working through new ways of working that may benefit the Complainant.

The Respondent noted that the Complainant, should she have thoroughly taken a disregard to the discussions or potential carer options that were offered by the Respondent, did not raise an informal formal grievance and therefore did not allow the Respondent to address any new concerns she may have.

Reasonableness: Exhausting Procedures

The Respondent submitted that it had a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). The Respondent noted that the Complainant was fully aware of the Respondents Grievance Procedure, that this was provided to the Complainant upon her start date on both periods of employment and was a core element of employment with the Respondent. Further to this, noting the Complainants significant length of service with both contracts combined, the Respondent submitted that she was more than fully aware of how to utilise this formal procedure should she wish.

Notwithstanding this, the Respondent noted that the Complainant was alleging that she had no other option but to terminate her contract of employment with the Respondent. The Respondent submitted that the Complainant had not established the basic fundamental requirements to show that constructive dismissal occurred. The Respondent noted that it may be a necessary case for the Complainant to rely on childcare availability to substantiate her claim but submitted that at no time did the Complainant make the Respondent aware of the ongoing of such challenges. It was the view of the Respondent that while the Complainant did make her manager aware of potential childcare issues for the period of one week, the Respondent fully dedicated themselves to aiding the Complainant during this time. The Complainant did not raise any further childcare issues with the Respondent following this instance.

Notwithstanding this, the Respondent submitted that should the Complainant have made the Respondent aware of these alleged ongoing childcare issues, the Respondent would have wholly dedicated their efforts to supporting the Complainant, howeverthese issues were not raised.

The Respondent set out the detail of a 4 month period to support the its defence highlighting the Complainants on site presence on a Friday.  That information covered 18 Fridays and can be summarised as follows:

Working from Home: 12 days

On site Grafton St:       2 days

On site College:             1 day

Shoot on Location:      1 day

Personal Matter:          1 day

On flight abroad:          1 day (not requested)

The Respondent submitted that it was clearly evident that the Complainant had in fact worked on site on multiple occasions. And the Respondent submitted that while the above was a short synopsis, this pattern of working was consistent through both of the Complainants periods of employment

The Respondent contended that at no time did they make a unilateral change to the Complainants terms and conditions or working hours as is outlined in the Complainants submission. Notwithstanding this, the Complainant was asked to work on site on Fridays to facilitate the growing team. This paired with the growth conversations that were held with the Complainant are a sheer sign that her role was not facing a redundancy, as cited in the Complainants WRC Complaint form. Further to this, it was submitted that the Complainant was never placed at risk of redundancy and therefore, the Respondent contended that the Complainants role was not at risk of redundancy and submitted that the Complainants WRC complaint form cites an opinion rather than a fact for this matter.

The Respondent expressed the view that the Complainant acted hastily when resigning from her position and further to this, did not act by any way reasonable. The Respondent noted that the reasonableness of a resignation has been tested and cited in (Conway v Ulster Bank) whereby it was clear that the Complainant did not “substantially utilise the grievance procedure to attempt to remedy her complaints”

Exhaust internal procedures

The Respondent submitted that the obligation to exhaust internal grievance procedures extends even in situations whereby there exists a purported breach of contract and noted that in Travers v MBNA Ireland Limited, UD720/2006 the Claimant’s role was changed by the Respondent in a manner which was “not in keeping with the contract of employment”. In that instance the Claimant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Tribunal found; “the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case” and stated: “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. The Tribunal thus found in that case that the Claimant was not constructively dismissed.

The Respondent submitted that just as it is unacceptable in the case of a non-constructive dismissal instance for an employer to dismiss without recourse to fair and comprehensive procedures, so too it is insufficient for an employee to claim herself to have been constructively dismissed without utilising and exhausting grievance procedures. In the circumstances the Respondent submitted that the Complainant had failed to establish the burden of proof that her actions were reasonable. And that as in Travers v MBNA, it was the Respondent’s position that the Complainant’s failure to exhaust internal grievance procedures was detrimental to her claim.

The Respondent submitted that by virtue of the Complainant’s behaviour and her resignation, this did not fulfil the test of reasonableness and thus could not  be determined to be a constructive dismissal.

The Respondent drew attention to the Complainants contract of employment from her previous time spent with the Respondent to highlight that the Complaint, in fact never worked a four-day week during any of her employment despite the association of such in the Complainants submission. It was not the Respondents view to see the Complainant earn a lesser income; however, it was more so the Respondent providing the Complainant with a variety of options to support her further employment and the Respondent submitted that the two should not be misconstrued. (

The Respondent highlighted, that at no time during the Complainants course of employment from November 2023 to her resignation date of 20 June 2024, was an internal grievance raised in relation to this alleged redundancy, change in the Creative Role or performance issues as cited. Further to this, the Complainant failed to raise an internal grievance, where the alleged conduct of a manager could be appropriately addressed. The Respondent also submitted that the Hybrid Working Agreement, which was signed by the Complainant contained the following Flexibility Clause:

“Flexibility: the company expects employees to be flexible to meet business needs.

For example, an employee with an active Hybrid Working Agreement is still expected to attend meetings, training and other important events or to travel on business to meet business needs if required, even on a normal Working From Home (WFH) day.

WFH may be withdrawn during traditionally busy trading periods so all employees are present in their normal working environments and where there in a requirement to be present in the normal working environment -office/salon due to staff shortages or other unforeseen circumstances.”

The Respondent submitted that it was clear from the signed agreement that the Complainant was aware of the flexibility clause and the need for such within the Creative Lead role. At no time did the Respondent give the Complainant an ultimatum by way of role change. The Complainant explained to Ms. O’Keeffe that she was unable to now work from site due to childcare reasons and this was essentially news to the Respondent as the Complainant had always worked from home or on site on Fridays. The Respondent submitted that from this conversation, the Respondent could only assume that the Complainant was in breach of the Hybrid Working Policy and was in fact not working from home

The Respondent noted that notwithstanding this, the Complainant in her WRC complaint form, had alluded to the fact that Ms. O’Keeffe and the Respondent had concerns regarding her performance. The Respondent submitted that this again, was news to the Respondent and submitted that it can be clearly seen that in fact there were no performance concerns surrounding the Complainant. The Respondent submitted that it evidentially wished to see the Complainant take the Creative Lead role to the next stage and further manage a larger team of employees.   In addition, the Respondent highlighted the section of the Hybrid Working Policy entitled  “Duration of the Agreement” where it states:

“Duration of the Agreement: each Hybrid Working Agreement will be valid for and reviewed after 6 months and may be renewed by mutual consent.  The arrangement set out in the Hybrid Working Agreement does not constitute a change to the employee’s terms and conditions of employment as set out in the contract of employment.  If, in the company’s sole opinion, the arrangement is not proving effective, the employee’s role or activities change or the employee’s performance becomes sub-optimal the employee will return to permanent office/salon working with two weeks’ notice.  If an employee fails to comply with the requirements of the Hybrid Working Arrangement, (or otherwise becomes ineligible), the company will be entitled to end the arrangement at any stage with 2 weeks’ notice.”

The Respondent drew attention to the Creative Team plans for 2024and highlighted the need for the Complainant’s on-site presence for a period of sporadic time and the ability for the Complainant to take the role to the next stage.

The Respondent acknowledged that upon the Complainants initial resignation and subsequently her second resignation, she fully complied with the contractual notice period. Further to this, upon the Complainants first resignation, her pension scheme was closed, and revenue was notified of her cessation of employment. Based on the foregoing the Respondent submitted that this clearly demonstrated a clear and complete break in service between the two periods of employment, and reflected the Complainants understanding of the distinct and separate contracts 1

The Respondent highlighted that the Complainant attended numerous performance meetings with her line manager in line with general company policy surrounding performance reviews. In this regard, the Respondent did not have any performance concerns pertaining to the Complainants employment whether in the office or when she was working from home.

The Respondent submitted that  the Complainant commenced new employment, in a separate salon, six days after she resigned from her employment with the Respondent

The Respondent requested that the Adjudicator, based on the Respondent’s submission and the evidence adduced, to find that the breach claim did not occur and to find in the Respondent’s favour.

Representations at hearing

Preliminary issue:

Ms Sarah Dowling outlined at hearing that the Complainant did not have the requisite length of service to take a case under the Unfair Dismissals Act.  She confirmed that the Complainant had originally been employed from 1999 up until her first resignation on 15 October 2023.  She outlined that when the Complainant was re-employed by the Respondent, it was not until 20 November 2023, at which time she signed a new employment contract with a new rate of pay.   In those circumstances she confirmed that the Complainant’s service was broken upon her first resignation and therefore she did not have requisite service to take a complaint under the Unfair Dismissals Act.

Witness evidence – Ms H O’Keeffe:

Ms O’Keeffe confirmed that she used the name Holly to differentiate between her and another other colleague.  She confirmed that she was a Line Manager and that she had known Ms Suzanne Dowling (the Complainant) since she started working.  She confirmed that she understood Ms Dowling was working as an educator from Monday to Thursday initially and as a stylist on Friday and that she had taken on additional work to include the creative work.  She confirmed that the Complainant was the creative lead and that she had agreed to work eight hours on a Friday in that role and that in fact it was always understood that this work was done on a Friday.  She confirmed that she was an educator when the Complainant began as an apprentice and that they were colleagues and friends over all that period of time and had a really good working relationship.  She confirmed that she didn’t believe anything had changed after the Complainant returned to work.

In relation to flexibility, Ms O’Keeffe confirmed that if the Complainant needed to start later and go early because of her childminding arrangements, that this was always supported to try and make it work.  She confirmed that she was a parent herself and so she understood the need for support.  She stated that wherever she could make it happen, she did this under both contracts.  She confirmed that on most days staff have to be out at 5pm.  She stated that she was aware that the Complainant had a number of issues, that she had been advised of the EAP services, but that she had never asked for any additional support or accommodation.  She confirmed that there was a meeting with Mr. O’Rourke on a Monday morning, that it was a short meeting and that the Complainant left soon after, and that she was off on the Thursday and working from home on the Friday.  She confirmed that there were sporadic days when the Complainant came in on a Friday based on a text but that there was nothing ongoing.

In relation to the creative lead role, she said that the Complainant had raised the matter two or three times for review, that she had raised the workload, the title, and that they had agreed the current title was not appropriate, that she had met with senior management in relation to the title and the role profile and that Mr. O’Rourke understood  her position and that a final draft of a role profile was completed.  She stated that she met with the Complainant around May and in addition to the title, the Complainant was looking for an additional two weeks’ pay and that she had confirmed to her that she didn’t think that would be approved.  She confirmed to her that she would need to involve others in that discussion.  She confirmed that she spoke to Mr. Keavney about the matter but that nobody was getting six weeks leave.  She stated that “we all love her” but that two weeks unpaid leave in addition to her existing annual leave, would have put her way out of kilter with other staff.  Ms O’Keeffe confirmed that the Complainant was in demand with Designers and that this had been allowed and supported by the Respondent but that this demand was growing and yet there was no benefit to the Respondent.  Ms O’Keeffe confirmed that she had advised the Complainant that if it was too much for her, she didn’t need to do that work for them. 

Ms O’Keeffe gave evidence that the Complainant was seeking an additional two weeks paid leave per year and that combined with her statutory leave, this would bring her up to a total of six weeks leave per year.  She stated that nobody in the company was in receipt of such leave arrangements.  She confirmed that the Respondent was willing to pay the Complainant additional salary and that she was advised that she could apply for additional unpaid leave in the context of the additional pay.  She stated that there were 14 educators at that time working for the Respondent and that if all of them were to receive such additional leave, it would reduce the training available to students by 28 weeks per year and that it wouldn’t be possible as this would have a massive impact on the company. 

Ms O’Keeffe confirmed that the Complainant resigned on the 28 August and provided eight weeks’ notice.  She stated that there were conversations held with the Complainant on a weekly basis checking in if she had reconsidered.  She stated that everybody in the Respondent employment wanted her to stay but that the Complainant was highly emotional.  She stated that she sat with her and talked with her and that everybody wanted her to stay.  She stated that money was not what she was interested in, it was time that was important to her, and she saw this as a reward for her hard work.  She stated that despite talking to Mr Peter O’Rourke about the possibility of the Complainant’s resignation, it was not possible to meet her expectations in relation to annual leave, however, the Respondent was more than willing to engage in discussions in relation to a pay increase.

Ms O’Keeffe confirmed that after the Complainant had resigned she spoke to Mr O’Rourke and advised Holly about the discussion by text.  She stated that thereafter the Complainant, Mr O’Rourke and Holly met, and she said that the Complainant had said she felt she had been ambushed at that meeting.  Ms O’Keeffe confirmed that the Complainant got upset at the meeting but that so did Mr O’Rourke.  She said she was very surprised at how the meeting went and that both individuals were very blunt with each other during the meeting.  Ms O’Keeffe confirmed that the discussion centred around the option for unpaid leave and that it was agreed that the managers would follow up with the Complainant thereafter.  She confirmed that everybody was in agreement in relation to that plan as they left the office. 

In relation to her new contract, she stated that four days were assigned to education and one day to the creative role.  She stated that she had phone the Complainant in relation to her pay increase and the new role profile and advised her to make sure to read the new profile.  She confirmed that she understood that the Complainant had done so as she raised queries about parking and that she had also raised queries about the Friday working in the creative role and was advised that it was important to keep to the structure but that where flexibility was required Ms O’Keeffe would do her best.  She confirmed that the Complainant didn’t raise any further issues and that any flexibility required would always have been with notice. 

Ms O’Keeffe confirmed that following the Complainant’s return to work, that arrangements worked out well in relation to the contract, that there were further conversations between her and the Complainant in relation to shoots scheduled etc, but that no conversation took place in relation to the workload or the contract.  She confirmed that in relation to the role of a new Creative Director, it was becoming obvious that a change would be required and that the role would be needed on a more sporadic basis and that initially the conversations with the Complainant in that regard, centred around pay.  She stated that if the Complainant was reducing her hours, her pay was likely to be on a pro rata basis.  Ms O’Keeffe gave evidence that when she told the Complainant about the creation of the Creative Director role, she became very upset and she confirmed that she didn’t have all the answers at the time and she advised her that she would revert to her in due course with further information.  She confirmed that there was no conversation with the Complainant in relation to redundancy. 

Cross examination Ms O’Keeffe:

Under cross examination Ms O’Keeffe confirmed that she accepted that not all educators had 25 years’ experience and that the role carried out by the Complainant could be described as bespoke to her.  She accepted also that it was a busy role because of the external factors, other companies, photographers etc, requiring work of the Complainant.  She stated that there was very little benefit to the Respondent out of this and she acknowledged that one particular brand had offered to pay and she didn’t know whether that had been accepted or not, but she accepted that Peter Mark would be credited with the stylist associated with shoots for other brands.  She confirmed that before the change of contract, the Respondent was not checking up on the Complainant and her work and did not do so under the new contract.  They could see that the work was done but Ms O’Keeffe confirmed that she had no idea when that work was done.  She confirmed that she did not know the detail of the Complainant’s first contract but that following her return from maternity leave she was seeking flexibility in terms of working a four-day week and being paid for five days.  She confirmed that her understanding was that the Complainant had met with senior management and that the outcome was a four-day week in education and one day as the creative lead. 

In response to a query as to why the flexibility enjoyed by the Complainant was being removed, Ms O’Keeffe confirmed that there was a change due to the demand required of the creative role.  She stated that the specifications had changed for social media and that they needed to think about how to get more imagery suitable for the various platforms.  She stated that there had been a discussion of this within the Senior Strategy team and that she had taken that back to the Complainant.  She stated that there was a view that there was a need to include the broader team and she confirmed that the Complainant had resigned before that discussion could be opened up with the Complainant. 

In response to a query from the Complainant representative, Ms O’Keeffe confirmed that the education role could only be a four-day role, that it could never be a five day role. 

Ms O’Keeffe confirmed that she had never said to the Complainant that her role was being taken away, that was not true, but that she was required on site on Fridays on a sporadic basis during the transition, and she stated that things did not happen as they were described by the Complainant.  Ms O’Keeffe gave evidence that another named employee was the creative lead on recent projects but that he was not appointed as the creative lead for the organisation.  She stated that she was aware that the Complainant had been having difficulty but that she was not aware of the breakup in the relationship until around the time of the second contract. 

In response to a query from the Complainant representative in relation to the email of the 13th, she confirmed that she believed that the email set out the Complainants intent that she had heard from the team that she was leaving and that they had been through all of the issues in the week prior to that email.

Witness evidence – Ms Claire Cotterell:

Ms Cotterell gave evidence that she did have conversations with the Complainant in relation to her resignation.  She confirmed that she worked in the same building and at the time of the first resignation she asked her why and the Complainant had said she didn’t know what to do, that she had a friend working in a salon and that he had suggested to her that she could work with them styling.   She believed she had gone as far in education as she could.  She confirmed that the Complainant never came back to the same building, that there was an open door, and that she could have easily come back. 

She confirmed that at the time of the second resignation she had conversations with the Complainant regarding the title and the role profile to match her title as she had requested.  She confirmed that there was no new hybrid request and that she had worked as heretofore as far as she was aware. 

Ms Cotterell gave evidence that she was a member of the Strategy team and that she represented the Head of HR on that team and that the team was made up with Heads of Departments and the CEO.  She confirmed that the Respondent did not have a Marketing Manager and that the marketing team was growing and that the creative lead was going to be key to the success of leading the change required.  She stated that the details of how it would work were never discussed, that there was no issue in relation to hybrid working, but that it was clear that the creative lead would need to be on site more in the initial phase. 

Cross examination – Ms Claire Cotterell:

Ms Cotterell confirmed that she was not present at the meeting between the Complainant and management representatives.  She stated that she spoke to Ms O’Keeffe before that day and said that there was a need to have a chat with the Complainant and let her know that the service was growing.  She confirmed that she was on annual leave when the meeting occurred but that she was phoned in relation to it while in Spain when subsequent events took place.

Respondent closing remarks:

In her closing remarks Ms Sarah Dowling reaffirmed the Respondent position that it refuted that it had constructively dismissed the Complainant and that in fact the Complainant had dismissed herself, that there were necessary changes to the business due to a growth in business and that this necessitated a role change on an interim basis.  Ms Sarah Dowling confirmed that the terms and conditions were not changed and that the role was not made redundant and that there were no conversations about redundancy and no consultation meetings held in relation to redundancy.  She noted that the Complainant did have childcare issues and that at all times the Respondent had acted to support the Complainant.  She drew attention again to the Respondent preliminary issues in relation to the Complainant not having the requisite 12 months service to advance a case under the Unfair Dismissals Act. 

I have given careful consideration to the submissions provided by the parties, together with all supporting documentation, and to the case law relied upon by the parties.  I have also taken account of the witness evidence given under oath/affirmation and have made my own enquiries in order to fulfil my obligation to fully investigate the matters before me.

Preliminary Issue

The Respondent submitted that the Complainant did not have cover of the Unfair Dismissals Act as she commenced working under her final contract on 20 November 2023 and resigned her employment on 20 June 2024.  In these circumstances it was the Respondent position that the Complainant did not have the requisite 12 months continuous service to pursue a case under the Unfair Dismissals Act. The Respondent acknowledged that the Complainant had originally commenced in its employment on 24 March 2001 but contended that the Complainant had resigned her position on 15 October 2023.  It was the Respondent position that the Complainant had worked her full notice period prior to termination of her employment and that the Respondent had processed hertermination with Revenue and with the relevant pension provider.

The Complainant argued instead that she had cover of the Unfair Dismissals Act, that she had commenced employment with the Respondent on 24 March 2001 and that while she had acknowledged that she resigned in October 2023, she contended that she was in discussion with the Respondent immediately thereafter and ultimately returned to work on 20 November, approximately 5 weeks later.  In these circumstances and based on case law cited the Complainant argued that the 5-week period did not constitute a break in service.

It is common case that the Complainant commenced employment with the Respondent on 24 March 2001 and remained in employment until 15 October 2023 when she resigned her position.  It is also common case that soon after the termination of her employment the parties entered into discussion about the terms of her employment that gave rise to her resignation.  In that regard I note that the parties ultimately agreed to an increase in wages and a change of title to reflect the work that the Complainant had been engaged in prior to her resignation. 

It is common case that the Complainant returned to work on 20 November and was issued with a revised contract reflecting the increased salary and the new title.  She was also issued with a job description which, it seems to me, fully reflected the work that she had been undertaking prior to her resignation.

 The Respondent noted the provision of the First Schedule of the Minimum Notice and Terms of Employment Act 1973 which provides:

1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by —

(a) the dismissal of the employee by his employer, or

(b) the employee voluntarily leaving his employment.

I note, however, that the act also states:

“(1)(6). The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.”

I further note that in the Complainant’s submission she cited the case of Ennis v Toyota UD 597/1983 where it was determined that a break of 4 weeks fell within the definition of “immediate re-employment” and I consider that the 5-week break in the instant case falls within that definition also. 

In these circumstances I find that the Complainant has the requisite 12-month continuous service and therefore has standing to pursue her complaint under the Unfair Dismissals Act.

The Substantive Issue

It is settled law that there are two distinct tests for constructive dismissal, and they are known as the “contract test” and the “reasonableness test”. (Ref Western Excavating (ECC) Ltd v Sharp IRLR 27 and Conway v Ulster Bank UD474/1981).  Both require the employee to discharge the burden of proof; but they are separate tests.  In a claim of constructive dismissal, the Adjudication Officer must determine if the employee has met either test. While an employee may be able to satisfy both tests, they are not required to meet both tests and there is no combined test of repudiation and reasonableness.

Contract Test

Western Excavating (ECC) Ltd v Sharp summarised the contract test as: “If an employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the Respondent 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 other performance.”

Reasonableness Test

Western Excavating (ECC) Ltd v Sharp also stated that the reasonableness test provides that the conduct of the Respondent should be assessed and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”  The reasonableness test requires an assessment of the Respondent’s conduct and the extent to which the employee sought to utilise the internal procedures and raise their concerns.

Application of the legal tests to this case:

This case relates specifically to circumstances which occurred relating to a proposed change to the role undertaken by the Complainant.  She alleged she was advised that the role was about to change and that this would necessitate her being on site on Fridays instead of working from home.  She described personal relationship difficulties which resulted in childminding difficulties.  She alleged that the Respondent was aware of those issues yet were insistent that she commence working on site, making it impossible for her to manage her childcare arrangements.  In addition, she placed particular emphasis on the elimination of her Creative role and the limitations which this would place on her career, leaving her with only two options: to return to work as a full time Educator or to reduce her hours and associated pay. She attributed those issues to her ultimate resignation, in circumstances which she described as not sustainable nor tolerable.  The question that arises here is whether or not the Complainant was constructively dismissed either by repudiation of her contract or if it was reasonable for her to resign.

Contract test

I noted that the Complainant had a contract of employment that provided the following:

·       That her work location would be at Peter Mark Training Centres and various other locations for creative work

·       That she would be paid a per diem rate

·       That her duties would accord with the attached job profile

I further noted that the job profile devoted a specific section to the Creative role and confirmed that this was a one day per week role.  I am clear that the Line Manager opened a discussion with the Complainant in relation to potential changes to that role and I am also clear that the Complainant was left with the impression that her involvement in that role was going to be eliminated.

I do, however, accept the evidence given by Ms. O’ Keeffe that the business needed to make provision for this role supporting social media and other such campaigns and that as a result new ways for delivering and expanding the role were under consideration and I accept that matters had not been finalised by the Respondent.  Nonetheless, it was evident from the testimony given by both Ms. Keeffe and the Complainant that Ms. O’Keeffe had outlined to the Complainant her options for work once that role was taken from her.  In these circumstances I have formed the view that the Complainant had accurately assessed that there was an intention to eliminate her involvement in the creative role.  Notwithstanding the foregoing, it is also evident that the change was never introduced

While I consider the treatment of the Complainant to have been sub optimal, the question that arises here is whether or not it amounts to a repudiation of contract.  Repudiation of a contract occurs when a party indicates, through their words or their actions, either their unwillingness or their inability to fulfil their contractual obligations.  It is clear from all the evidence presented that, however unacceptable the new role was to the Complainant, she was to remain as an Educator and on the same pay.  Furthermore, it was clear that if the changes were given effect there were options available to the Complainant to maintain full time employment, although she might not have been enthusiastic about those options.  In all these circumstances I must find that there is no repudiation of contract in this instance.

Reasonableness Test

I have outlined under the contract test above my views in relation to the engagements with the Complainant in relation to the potential change to her role. It is clear to me that the Complainant was going through a very difficult period in her personal life and was reliant on the flexibility afforded by the creative role to assist her in managing such matters.

I am in no doubt that the Complainant had given long and loyal service to the Respondent and while she had been supported by the Respondent in terms of flexibility, she had also worked far beyond the scope of her role in representing the Respondent and its brand.  Based on a review of emails sent at the time of termination of employment and on her evidence at hearing I formed the view that the Complainant was deeply upset by the course of events and was left feeling undervalued and unsupported following her conversations with her line manager.

Nonetheless, the Complainant was aware that the Respondent had a Grievance Procedure in place, and she did not take any steps to utilise that procedure.  Additionally, the Complainant had a long-standing working relationship that gave her access to senior management, and she did not seek to make any informal contact either and instead submitted her resignation.  In these circumstances I must conclude that the Complainant did not act reasonably and provide the Respondent with an opportunity to resolve matters.

As the Complainant has not demonstrated repudiation of contract and did not act reasonably to provide the Respondent with an opportunity to resolve matters within the internal procedures, I find that her complaint of constructive dismissal is not well founded.

I found that the Complainant had not demonstrated repudiation of contract and had not acted reasonably to provide the Respondent with an opportunity to resolve matters within the internal procedures.  In these circumstances, I found that her complaint of constructive dismissal was not well founded, and I decide accordingly.

Constructive dismissal