Complainant

Respondent

Parties

Ms Louise Keely

Rockabill Seafood Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Mr Aengus Ó Maoláin BL instructed by Mr Barry Crushell Crushell & Co Solicitors

Mr Pat Collier Collier Borderick Management Consultants

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-00068256-001

20/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00068582-001

13/01/2025

These matters came before the Workplace Relations Commission dated 20/12/2024 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977 (Constructive Dismissal); followed by a complaint submitted on 13/01/2025 under section 7 of the Terms of Employment (information) Act, 1994.  

The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place initially on 18/09/2025 followed by a second hearing on 13/03/2026.

The Complainant at all material times was employed as a Finance Manager.  The Complainant commenced employment with the Respondent on 08/08/2023 with such employment terminating by way of resignation on 15/11/2024.  The Complainant was in receipt of €60,000.00 per annum for which she worked 40 hours per week. 

The Respondent is a family run company operating in the fishing industry since 1984. 

The Complainant claims constructive dismissal and claims that she did not receive a statement of her core terms in writing. 

The Complainant’s claims are denied by the Respondent. 

Both parties provided written submissions and supporting documentation in advance of hearing for which I am grateful.  The Complainant also set out her complaint in detail on the WRC complaint form.   

CA-00068256-001

Overview of Complainant written submission

The Complainant commenced employment with the Respondent on 08 August 2023. The employment of the Complainant ended on 05 December 2024.  The Complainant was employed as Finance Manager. The Complainant primarily worked with Mr. Paul McCusker, Mr. Bill Price, [redacted] and reported to Mr. Ian Price.

The Complainant enjoyed a salary of €60,000.00 per year, with the Respondent.  The Complainant has raised complaints seeking adjudication by the Workplace Relations Commission (“WRC”) under Section 8 of the Unfair Dismissals Act 1977 and Section 7 of the Terms of Employment (Information) Act 1994. 

Overview of legal submission

It is the position of the Complainant that they had no option but to resign from their employment, due to the conduct of the Respondent

Section 1 of the Unfair Dismissals Act (the “Act”) defines ‘dismissal’ for the purposes of the Act as follows: “(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;” 

The Act places a high burden on a Complainant in a constructive dismissal case. In order to succeed in such a complaint, a Complainant must establish that because of the conduct of the employer she was entitled to terminate her employment, or it was reasonable for her to do so.

A long line of decisions of the WRC, Labour Court, and the Employment Appeals Tribunal before 2015, have established that conduct of an employer which would justify an employee terminating the contract of employment includes a breach of the contract of employment by the employer which goes to the root of that contract or circumstances where the employer’s unreasonable behaviour was such that the employee could not reasonably be expected to remain in the employment.

It has also been established in the decisions of the WRC that a Complainant who contends that they have been constructively dismissed must demonstrate that that they have acted reasonably in the circumstances by, for example, availing of the employer’s grievance procedure in order to allow the employer an opportunity to rectify the problem before they feel compelled to resign.

Each complaint of constructive dismissal is of course considered on its own merits and on the basis of the circumstances existing in that case but, as a general principle, the WRC and Labour Court have clarified that these are the matters most relevant to consideration of complaints of the nature before this forum.  The Complaint contends that her own set of facts fulfil the requirements to satisfy a claim of unfair dismissal by way of constructive dismissal.

The first test 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.

It is the position of the Complainant that the Respondent failed to provide her with a safe place of work.

The Safety, Health and Welfare at Work Act sets out the health and safety requirements of the workplace.  Section 8 provides the general duty to ensure ‘so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.’

We refer to Catherine Hurley v An Post [2017] IEHC 568, a decision issued by the High Court, concerning a complaint taken under the Safety, Health and Welfare at Work, 2005. In that case there was workplace bullying which was not addressed.  The decision stated: “The Court is satisfied that there is a common law duty on an employer to take all reasonable precautions for the safety of its employees and not to expose them to a reasonably foreseeable risk of injury.”

The Complainant contends that the principles of Hurley are applicable.

The second test 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, if so he/she is justified in leaving.

The question for the WRC to decide is whether, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for them to terminate their contract of employment. In circumstances where the contract test has not been significantly advanced or satisfied, the WRC may look at the ‘reasonableness’ test and examine whether the employer conducted himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving.The 'Bond of Trust' issue is best set out in the leading UK case of Malik and Mahmud v Bank of Credit and Commerce International.  The House of Lords unanimously held that the term of mutual trust and confidence would be implied into the contract as a necessary incident of the employment relation. This was a term implied by law. 

In this respect the Complainant contends that the Respondent was aware of the mental health struggles she encountered but did nothing to alleviate the pressure exerted upon her.

The Complainant did repeatedly bring her issues to the attention of the Respondent but was completely ignored. Considering her stress and anxiety, we hold that the Respondent had a duty of care to the Complainant to at least listen to, and consider, those concerns, but failed to do so.

The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal.

There is, however, authority for the proposition that the requirement to exhaust the internal formal procedures is not a fixed or universally applicable rule and that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal.

Law relied upon by the Complainant:

Safety Health and Welfare at Work Act 2005

Catherine Hurley –v- An Post [2017] IEHC 568

Berber v Dunnes Stores [no citation provided]

Murray v Rockabill Shellfish Ltd [no citation provided]

Beatty v Bayside Supermarkets UD142/1987

Ranchin -v- Allianz Worldwide Care S.A. [UDD1636]

Conway v Ulster Bank Limited UDA474/1981

Travers v MBNA Ireland Ltd [UD720/2006]

Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132

Allen v Independent Newspapers [2002] E.L.R. 84;

May v Moog Ltd [2002] E.L.R. 261

Monaghan v Sherry Bros [2003] E.L.R. 293

New Era Packaging v A Worker [2001] E.L.R. 122

Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23

UDD 1910 (Ryan, Cannon and Kirk Account Services Limited and Kneite)

Office Administrator v A Manufacturer ADJ-00026208,

Beglan v. Scanomat Ireland Limited UD688/2012

Schonfield v. West Wood Club Clontarf Ltd UD1013/2013

Overview of factual submission

The Complainant commenced employment with the Respondent on 08 August 2023. During her employment, a number of concerns arose in relation to unclear contractual arrangements, problematic workplace relations, and unprofessional conduct by a colleague, Mr. Paul McCusker.

The Complainant was repeatedly informed that no formal written contract existed in respect of her role. On one occasion, this was expressly stated to her in the words: “Sure, you don’t even have a contract.”

At the outset of her employment, the Complainant was informally cautioned by colleagues about a work colleague, Mr. Paul McCusker.

On 29 September 2023, the Complainant received a telephone call from Mr. McCusker in which he shouted at her in relation to a payment concerning a vessel.

He aggressively repeated the phrase “Do I make myself clear?” when the Complainant hesitated. The interaction caused her significant distress and left her physically shaken. When she raised the matter with Mr. Ian Price, Director, identifying the behaviour as inappropriate, no formal action was taken.

The Complainant regularly encountered errors and incomplete work attributable to Mr. McCusker, requiring her to assume additional tasks such as printing invoices and manually calculating handling fees.

On one occasion, the Complainant was questioned regarding a €300,000 discrepancy in the accounts, of which she had no prior knowledge. This highlighted an ongoing issue whereby Mr. McCusker acted beyond his remit and created confusion.

Despite repeated requests, the Complainant was denied access to the Northern Ireland bank accounts.

In December 2023, the Complainant raised concerns with Mr. Ian Price that Mr. McCusker was being secretive and withholding critical financial information.  During a later meeting in December 2023, while reconciling accounts for Fishing Trawlers, the Complainant requested supporting documentation for paid invoices. Mr. McCusker initially delivered two boxes containing only posted invoices and asserted that this was all that was available. When pressed about missing bank statements, he first claimed they were left in Dublin but later produced them from his vehicle following repeated questioning.

The Complainant considered this obstructive and dishonest conduct, which significantly hindered her work. Mr. McCusker openly questioned the Complainant’s qualifications and contradicted her in front of the auditor. In a further incident, he refused to provide her with an invoice until she explained the difference between an operating lease and a finance lease, which she considered unnecessary and intimidating.

In August 2024, Mr. Ian Price informed the Complainant that Mr. McCusker intended to resign and held her responsible. She was advised to handle him “delicately.” In early September 2024, she was told: “We need him more than we need you.”

The Complainant avoided interactions with Mr. McCusker where possible, as he frequently shouted at her when challenged. In September 2024, she sought medical treatment for high blood pressure but continued working to meet year-end deadlines. On 21 October 2024, the Complainant felt unwell and sought permission to leave work. Mr. Bill Price informed her that Mr. McCusker had complained she had spoken to him disrespectfully. When questioned about her work on certain accounts, she explained that the documentation in question had been taken to the Northern office.

The Complainant’s general practitioner certified her unfit for work from 21 to 28 October 2024 due to high blood pressure. She also emailed Mr. Ian Price at this time to reiterate her concerns about workplace issues. 

On 30 October, she submitted a formal written complaint against the behaviour of Mr. McCusker.  Although she requested leave for 31 October 2024, Mr. Ian Price required her to provide a fitness-to-work certificate, despite her not having exceeded the statutory absence threshold.

At the time, her doctor was unavailable.  On 03 November 2024, the Complainant returned to work, but the Respondent insisted upon a fitness-to-work certificate, in order to pursue her complaint.

The following day, the Complainant was called to an informal meeting. During this meeting, she was asked whether the matter could be resolved amicably.  The Complainant queried why her employment should be jeopardised due to Mr. McCusker’s behaviour.  She was also asked again about her professional qualifications, which she had already submitted.

At this meeting, the Respondent stated that responsibility for the Northern Ireland accounts had been reassigned to reduce her workload. This contradicted previousexplanations that Mr. McCusker had requested the accounts in order to demonstrate his competence. She was also informed of a complaint allegedly made by other staff members, which she believed to be unfounded.  On 15 November 2024, the Complainant tendered her resignation. 

During her notice period, she was denied access to essential information from the Northern office, including daily bank balances. No action was taken in response to her complaint, and no measures were introduced to address or improve her working conditions. The Complainant was subjected to persistent hostility and obstruction by Mr. McCusker. The Respondent’s directors, Mr. Ian Price and Mr. Bill Price, consistently failed to intervene or provide appropriate support.

The Complainant ultimately concluded that she had no reasonable alternative but to resign due to the continuing undermining of her role, the stress caused by the workplace environment, and the Respondent’s failure to take corrective action.

On 17 December 2024, the Complainant attended an investigation meeting following their complaint against Mr. McCusker’s behaviour.   Following the outcome of the investigation process, the Complainant submitted an appeal, chaired by Mr. Paul Connaghy.

The Complainant questioned the independence of Mr. Connaghy as an appeals manager, given his friendly status with the directors of the Respondent. The appeal issued on 29 January 2025, though no formal action was taken.

Narrative WRC complaint form

“I have over 30 years of experience working in Finance/Accounts. I commenced my employment with the respondent on 08 August 2023. I first encountered Paul on 29 September 2023 after he rang me and shouted down the phone at me to instruct me not to pay a certain boat. He repeatedly shouted, “Do I make myself clear?”, after I took a moment to reply out of shock. After this encounter, I made enquiries as to who this man was. The answers varied. One person labelled him as bad tempered, and one person thought he was the owner of the Northern operation due to the way he presented himself as all knowing.

This man was Paul McCusker, an Admin/Accounts Clerk who had been employed by the respondent for 8 years, as a junior accounts clerk. There was a situation where accounts had a €300,000 discrepancy. I was queried about this first and I stated that I knew nothing about it. This was a common occurrence, where Paul would think he was the accountant and do things incorrectly. Paul had been repeatedly asked to provide me with same.

Ian, the Managing Director, has also asked him to provide me with same. On one occasion he came down to my office, with an incomplete “digipass” which could not be used, it was not ordered from the bank it was found later when I received his digi-pass there was no application for digipass and this was the only means that he could have ordered it. There was a boat called [redacted] owned by [redacted] that we were dealing with. I discovered that there were nil returns, and I had to go back almost 2 years to claim the vat that was due to the respondent. I was met with a lot of interference from Paul on this issue. Paul told me it was my predecessor, [redacted’s] fault.

However, on further enquiry it turned out that Paul had taken all relating documents up to the North and was taking responsibility for the task up until then. There was another account, [redacted] Paul was asked for the details of the “Tie-Up Scheme” numerous times by Bill.  Eventually, Paul gave me the requisite details for the account.

In April 2024, Paul called a meeting to discuss accounts. During this meeting, Bill was stroking Paul’s ego, putting his arms towards Paul and telling him he was a great man. Bill told me to listen to Paul as he was a great man. Paul began to talk about cheques that had been written years ago and never cashed. I was sent to look for these cheques. The next morning, I presented my findings to Paul, that the cheques were not material. I asked him to never do that to me again. Paul showed signs of embarrassment and contempt.

At one point, Ian, the Managing Director stated he could not believe that I, the Finance Manager, had no access to the bank accounts in the North.  Paul stated he had made an application for a ”digipass”, which later turned out not to be true. The week of 02 June 2024, there was a meeting. There were funds relating to the [redacted] boat in the Northern Irish bank accounts that needed to be transferred out.  Paul jumped to action, giving various suggestions.  I knew at this stage not to challenge Paul as I would be shouted at.  On 03 July 2024, Paul practically threw the “digipass” at me. Paul rang me saying that a transaction that was negotiated with Bill was illegal and he was not doing it, so he was sending the “digipass” down so I could do it.  When I received the “digipass” I saw there was no application for a new one, so Paul had lied.

For a boat called [redacted] a vat return had to be carried out.  Paul instructed me that it was a nil return. However, when I checked, this was not the case.  The [redacted] had been decommissioned in October 2023. When I reviewed the accounts, I found a number of journals put in, to make up for 21 missing invoices. I asked Paul about them, and he said he did not do them and did not know. I found out the auditor entered these in an effort to get the accounts finished, he could not enter them as invoices as he did not have the invoices, this meant the VAT was not reclaimed on the invoices which were paid from the Northern Office as Paul had taken complete control of these accounts.

When I asked him about it he kept referring me back to the Auditor and said he had to have the invoices as the things were paid for. I suspect that [redacted] had not seen the accounts and they were half done by Paul and just dumped in on the auditor. Around Christmas time I had a serious discussion with Ian and told him that I felt that Paul was very secretive and would not handover the information needed.

After, [redacted] a coworker from the Dublin office finished a reconciliation, Paul remarked that it was all wrong and deleted all of [redacted’s] work. I think Paul did not like the fact that [redacted’s]  name was beside the reconciliation, as this had been Paul’s responsibility previously, which he never fulfilled! While doing the accounts for Fishing Trawlers (NI) in December 2023, I asked for the information so I could post the invoices that were missing, that were paid. Paul brought down two boxes from Northern Ireland and said rather aggressively “that’s all I have.” When I looked in the box this was all the invoices that were posted (posted on the system already) not the invoices that were paid not posted, he had to have them to pay them or else he was just paying what people asked for, which is dangerous behaviour.

Then I was looking for the bank statements and he said he left them in Dublin. I said no you did not. I was searching everywhere. Eventually I gave him a way out of his fibs and told him to check the van. Low and behold, they were in the van. Paul would block me from making progress at all costs. He would lie, he would shout, roar, and contradict me at every turn. “What would you know”, was a repeated remark from him.

Around Christmas, I had to do some work relating to Atlantic Seagold. It emerged there was no bank account linked with them. I queried this with Paul, and he said he could not set up a bank account. I asked Paul to put transactions through for Atlantic Sea Gold and Rockabill Northern Ireland, but he completely refused. I sent around a policy document the first week of January 2024, stating that the Dublin staff would be scanned the invoices, and they would be posted in Dublin after full authorisations were done. It worked for about two weeks and then Paul tossed it aside, as some payments were urgent, he said.

I think the fact that things had to be authorised fully upset him, as he did not have the freedom to pay for things without supervision. This is an accounting procedure that needs to be followed in every organisation. This was part of my job to put in and monitor internal control. In January 2024, I was in Ian’s office with Bill, Ian and Paul. Bill told me that the auditor had been praising me for completing accounts and for carrying out a successful grant application. Paul began to laugh and remarked that I should not get credit for this. I felt belittled and embarrassed.

In March, Paul asked me a question and I answered him. Paul felt the need to further clarify by ringing and asking the auditor. While he was on the phone to the auditor, he remarked that himself and myself were both wondering about the question which was untrue. I remarked that I did not need to ask this question because I was qualified, and he replied saying that I was not qualified. I felt as though he was constantly trying to embarrass me. On one occasion, Paul would not give me an invoice I needed. He was like a child holding it away from me, until I explained the difference between an operational lease and finance lease. I found it distressing. I was under enough stress. I really did not find it amusing, his behaviour was appalling.

After all the work I put into the Atlantic Seagold account, I was told it was being given to Paul, as he wanted to prove he could do it. I believe this was Ian and Bill’s effort to separate Paul and I, as I had been complaining about his behaviour. I felt as though Paul would always give me the minimum amount of information possible to work from, so that it was almost as if I became his assistant. Paul had embedded himself in such a way I could do nothing without him giving me what I needed. . The stress I was under trying to get a set of accounts together was overwhelming. In August 2024, I was told by Ian that Paul was on his way down to hand in his notice and that it was my fault. Ian said he would have to talk him into staying. I was then told by Bill to treat Paul with “kid gloves” and be over-nice to him, as he was sensitive. In the beginning of September 2024, I was told “We need him more than we need you.”

When I heard Paul would be around, I would stay in my office, so that he had to seek me out if he wanted to speak to me. If he did not get his way, he would start shouting at me. In September 2024, I attended the doctor because I had high blood pressure. But I did not take time off as I had do year end accounts. There was an unfinished court case in the U.K. relating to someone withdrawing £30,000 from one of the boat accounts. I was told to report to Paul relating to this as he was going to be a witness in the court case. When I was working on this, Paul would consistently interrupt me and shout at me in the presence of Bill and Ian. Neither Bill nor Ian said anything to Paul or reprimanded him.

On 26 September 2024, Paul rang me and asked for access to my email. I then rang the IT company and found out that he had already requested access. I felt as though this was an invasion. I always felt as though I was not the only one with access to my computer. No one had been taking 24 responsibility for pricing stock – usually this was a task done by sales – but they did not do it for various reasons, so I decided to take the lead. I started an excel sheet and gave it to Bill in its early stages of development for him to review the prices of the items. It was not a completed sheet. Bill started shouting at me saying it was all wrong. Bill went into the sales office and got the person who should have done it in the first place to go through it line by line. Bill stated that I knew nothing about stock and that it was all wrong.

On 18 October 2024, Ian informed me that Paul was up to date on all his work (Accounts). I informed him that this was not true. Ian said “I am doing my best with him”, and made a call. Up to the 18th November he still had not got any further. On 21 October 2024, I did not feel well so I asked if I could go home sick. I was told by Bill that Paul said I spoke to him like a schoolboy. Bill proceeded to ask me did I have a problem with doing certain accounts. I replied that I could not do them because Paul had taken all the paperwork up to the North. The doctor wrote me a sick certificate from 21 -28 October 2024 as my blood pressure was seriously high. I sent an email to Ian repeating the accusations and insinuations made 21 Oct 2024.  (email 22 October)  I could not face going back, as I needed to review the situation so I asked for 29 and 30, off as holidays.

On 30th October 2024, I sent in a formal complaint and requested another holiday 31st October 2024. He requested a fitness to work certificate as I was not out for over 7 days and on annual leave the entitlement was not legitimate, as it happens my doctor was on sick leave. When I returned to work, Ian told me that nothing would be done about my complaint. I responded and said, sarcastically, “looks like I am warming up the seat in the WRC for him.” On 03 November (Sunday) 2024, I returned to work. There was a fitness to work certificate demanded even though I was not on sick leave over 7 days.

Then this informal “chat” happened the minute I was being insulted and abused they lost the right to informal was asked if we could settle this amicably. I responded, “Why should I lose my job because he is a prick?”. They asked me for my qualifications. I replied that they already had them. I was told that the “NI” had been taken from me to relieve pressure on me. This was not true as I had been previously told that Paul wanted to prove he could do it, as he is seemingly an accounts clerk. I was told there was a complaint in against me from the girls downstairs (redacted x 2) no such thing. Bill told me “I do not trust you; I have a Financial Accountant that I do not trust!” Because I dared to complain, and mention WRC. They asked me was I going to continue coming in. I said yes. This was the only time my complaint was mentioned. On 15 November 2024, I handed in my notice.

The final two weeks were just unbearable, as Bill was walking over me most of the time. Paul and his accounts person up in the North would not provide me with bank balances even though I was emailing [redacted] for them every day. As there was no further mention of my complaint or any changes made, I felt that I had to leave. They were all backing each other up, I was abused on numerous occasions by all three of them, getting it from all sides – I was told to shut up complaining about Paul, by Ian in September, how could I be expected to work without the information I required and relate to a Paul who had not accountancy training and did not understand the mechanisms”  

CA-00068582-001 complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994

The Complainant on the narrative of the WRC complaint form submits she did not receive a statement of her core terms in writing. 

Summary of direct evidence of Complainant on oath

Educational qualifications include a Diploma in Business, ACCA, Tax Technician and a post-grad in Data Analytics. 

Contacted by E from the recruitment agency who said she would be a good fit for the job and she had an interview, got the job and started on 08 August 2023 title was Financial Manager.  Responsibilities including Group accounts on a monthly basis, bank reconciliations, and VAT returns.  Financial manager for 6 companies and the majority of them were based in the North and all the information was kept NI. 

Started on 8 August and she received a bog standard contract left sitting in reception for an hour.  Contract hadn’t been signed by anybody and it was the usual bog standard – holidays maternity sickness and it didn’t contain any details on her job.  No onboarding or training and she didn’t know where the toilets were. 

She was given the company handbook.  Had expected there would be a meeting where she would be told what she would be doing.  Ian Price was her line manager and the NI staff were meant to be reporting to her on the financial aspects.  Atmosphere was ok it was all right.

First time she met PMC was on 29/09; she mustn’t have been paying enough attention to him because he roared down the phone at her.  She means really roaring and she submits he was driving at the time.  The issue was that he (PMC) had registered a boat wrong and any time he made a mistake he would blame others.  She was scared and she went home and told her husband.

She went to Ian Price and said she wasn’t putting up with this and he said he would have a word with him (PMC) but this went on and on.  He shouted at her how dare she tell him the company was near strike off.  He (Paul McCusker) doesn’t understand VAT at all.  He did the accounts up the North and he was supposed to provide her with all the information.  She didn’t get digipass for the North.  She had to teach them (PMC) and [redacted] how to do a bank statement. 

How can you trust these people when they are withholding information from you and that it was her responsibility to review the figures etc on the system.  She raised a complaint after her first interaction with PMC and that he was holding back information from her and that he was secretive.  Ian Price said to her would you shut up about PMC. 

PMC tried to break into her email and when she reported this to Ian he said to her that she was lucky he didn’t get in there as he would see all the bitching she was doing about him.  Paul McCusker was very abusive and he was shouting at her that he wanted access to her email after he tried to break in but the girl in the IT company stopped him.

He (PMC) had no qualifications and she does not know what his position is now but she has heard loads of titles since she left.

All the companies had different dates for the filing of accounts.  PMC sent down invoices in October and that he was trying to bring costs into a new year.  The auditor in NI is his best friend from school which is a conflict of interest which she pointed out. 

Accounts were filed under her signature and the process of trying to file them was horrific.  There were never any accounts in process and he (PMC) would tell her they weren’t reconciled and he always enjoyed being the hero.   Fishing Trawlers should have been filed in December and he (Paul McCusker) got an extension to March.  He wouldn’t email an invoice to her and he would not have treated her half as bad if she was a man.

When she went to Ian Price about this he said to her can you ever shut up about him (PMC). 

In early Autumn 2024 she had heard that he (PMC) had handed in his notice and it was her fault.  She was told they needed him more than they needed her and to stay away from him.    

He (PMC) filed a VAT return on 18 October and it was incorrect after she had been told it was all up to date when nothing was up to date.  She was always doing her best, always busy and she never received any feedback on her work. 

She submits she was looking for the lobster figures for 6 months and cites examples of the incompetence she has to put up with on a daily basis.  She never got feedback as they are not that type.

The scope of her role was never ending and she managed payroll also and all of the work was assigned to her by Ian Price.  She had a good handle of what was required on the IT side. 

There are untrue facts in the Respondent submission and she was never told there was a problem with her work.  She always got the stock priced by sales and [redacted] didn’t leave under pleasant circumstances and [redacted] came in as salesperson and he spent two days roaring and shouting at her the week before she went sick. 

She started to feel unwell; she said to her doctor I am being bullied and her doctor said what//.  The Complainant submits that as you can see she is not a pushover. 

The doctor told her she needs to take her tablets and that she had critical hypertension.  She was hoping the blood pressure would go down itself.  She was told that they needed PMC more than they needed her and that he (PMC) was very sensitive and he says she speaks to him like a school boy. 

She emailed Ian Price because it was very upsetting and if she died she wanted them to know she was thinking of them.

She sent in a complaint and they wanted a back to work cert and all these tactics started and the formal complaint was parked because of her health.   She got a what’s app looking for a back to work cert and she was told her complaint was going nowhere and it won’t be entertained to which she submits she said it looks like she would be warming up a seat for the WRC.  She was told she needed a back to work cert for the investigation.

Ian Price and Bill Price asked for qualifications and said can we sort this out amicably.  Her friends and her husband advised her to get a solicitor.  The Complainant submits on 04/11 they looked for an informal conversation but for her it became very formal.  Her solicitor told her it was harassment.

She was sorting out a visa that had been messed up and that she didn’t even do the wages when she went back and it was silent – a silent sacking.  She was doing the salesperson’s job and that pricing is a sales job not her job and there was no sign of the stock figures and one of her colleagues was heard to say better get those figures down or “she’ll have a formal complaint against you.”

She handed in her notice and asked if it was ok to take annual leave as she had 17 days left and she didn’t want to have to work and she hadn’t had the time to take the holidays because they were always putting work on her.

When she resigned there was nothing happening with her complaint and that her doctor said to her that she was not going back to that hostile environment with PMC and Bill Price roaring at her.  PMC killed half a shipment of lobster but there was nothing said about that.

When she came back there was a 2 days’ notice of an investigation meeting in her inbox.  The Complainant submits she told them she would do it online when they said they would need a back to work cert but she told them she was happy to do it online from home. 

Ian Price was involved in the informal stage and he was involved every step of the way.  The Complainant submits they were withholding her post and that letters went up North with her name on them and they were being kept from her and held up North.

The only thing they found that PMC did wrong was breaking into her email and they couldn’t deny that

The investigation report was laughable.   She appealed the outcome and she objected to the appeal officer as he was the auditor and he has an interest in the company and he wouldn’t be impartial.  The appeal officer said she had no right to the accounts in NI and somebody asked her if he was drinking wine at the time.

She lost her health her confidence and her livelihood and in May she was penniless. Management was atrocious and she had PMC and Bill Price roaring at her. 

She was told her complaint was going nowhere; they asked to see her qualifications and they told her there were complaints in about her.   She exhausted all the internal procedures.  She was abused while they all had their bromances. 

She has applied for 203 jobs and that when you say you don’t have a reference that’s the last you will hear from them. 

Withholding information was like a choke hold on her and PMC had a choke hold on her and he had coercive control over her and her job was threatened so many times. This has affected every part of her life and that they have shamed her. 

She allowed herself to be treated like that thinking they were nice people.   She now sees her doctor every 6 months and if she is emotional it brings her blood pressure up. 

PMC is the only person she had a problem with. 

Summary of cross-examination of Complainant

The Complainant confirms she was available to take up employment quickly when she interviewed for the job and confirms she got the ACCAs in 2016.  

Complainant is asked about the 10 different jobs she had between 2016 and 2023 - outlines she was financial manager in Christchurch Cathedral for one year; very happy there people didn’t roar and shout.   Worked in the hospice for two years and she worked in Temple Street and Ulster Bank for one year and in Great American where she was offered full-time employment but she wasn’t in a position to take it up.

Complainant doesn’t accept that most of her experience would have been in service industries and she has been a financial controller in other companies at a time when experience was all you needed where now qualifications are needed and it wasn’t easy to get her qualifications. 

The Complainant submits she had been in between six to eight jobs during that time because of Brexit.  Does not accept that she would have worked more in services than in manufacturing; she has worked in lots of factories and she never saw behaviour like that.  A balance sheet is a balance sheet no matter where you work.  She set up wages in Great American and is familiar with HRMC but she was ridiculed by PMC. 

They wouldn’t give her accessibility and that is coercive control. 

The Complainant accepts she received a contract but it shouldn’t be just handed to you when you arrive; contacts are always previously signed. 

The Complainant submits Ian Price said to her you haven’t even got a contract.  The Complainant submits you usually get a contract after you have passed your probation. 

With regard to her role the Complainant said she was going by the vacancy notice but she expected to receive a signed statement of tasks.  She never had a full set of accounts where she could compare anything – it was chaos.

With regard to training she was put in touch with [redacted] her predecessor.  He had left in May but he was paid a fee to keep up with the accounts and he explained the whole thing to her.  The Complainant submits she never said she wasn’t given training and these untrue facts keep coming through and need to be corrected. 

She accepts she had said the atmosphere was ok but submits she had an office of her own and she didn’t go to lunch with them because she was too busy.

Lobster figures were missing for 6 months; PMC’s information wouldn’t be correct and he was sending medical certs down to be printed and that he should have got his printer sorted out.  PMC  was very high handed, and he was getting her staff to sign things and they could have been signing anything and information was withheld and it was coercive control.

The Complainant does not accept that her communication style was to “tell” and she submits it was to “request”. 

She spent more time doing PMC’S accounts than her own.  PMC humiliates her he makes her cross and she has every right to be cross.  The Complaint is asked if she referred to him PMC as a prick to which she responds her livelihood was threatened and that man has caused so much trouble and that he was an accounts clerk up to 2021 and she would expect he would at least know the VAT rules. 

The Complainant does not accept she overstepped her professional boundaries; nor does she accept that some of the terminology she used was wrong and she would take the blame if something was wrong. 

She couldn’t take leave Christmas 2023 because of PMC.   He didn’t know anything; never sat in a classroom and yet he knew it all.  She is used to people actually doing their jobs. 

They diminished her authorisation by telling PMC he could submit VAT incorrectly after the extension was got that she had advised against.  She does not accept that the buck stops with a director and said it would be all down to her.  She does not accept it’s a director responsibility and submits it would still be down to her.

In communications over the Christmas period she strongly advised him not to send in incorrect returns.   She doesn’t call people shouting at her in her own home normal and her husband doesn’t like people shouting at her. 

It is put to the Complainant that they were disagreeing on this to which she replies no it wasn’t a disagreement PMC was putting it in anyway knowing it was incorrect.

In July 2024 she was brought into the boardroom and told PMC would be taking over Atlantic Seafood.   No bank reconciliation had been done for 5 months and how can she function without proper accounts. 

She was called into the boardroom by Bill Price and Ian Price was there too and they said they were going to separate the two of them because they could see there was a problem and PMC was after handing in his notice.  Sensitive is not an adjective she would attach to a man and where do her sensitivities come into it.  They said to her they needed him more than they needed her and they said they thought she would be stronger.  She complained often to Ian and after July she had little or no interaction with PMC as she was told not to up until the court case. 

Bill Price is semi-retired and he turns up when he wants to and he is still an authoritative figure.   She had enough interaction with him when he would be in and out of the office once or twice a week and then you mightn’t see him for a week. 

Bill Price and PMC were both shouting at her and accounts were seven months behind and she submits she doesn’t know how as a finance manager she can do her job or be supposed to do her job and she can do nothing without the lobster figures and they were on the wrong drive. 

It is put to the Complainant that she had indicated that the valuation of stock was a trigger for roaring to which the Complainant responds that she had asked [redacted] to look at the prices and she had to do his job for two months in one day.  She had to make sure the prices were right and that [redacted] was the sales guy and she didn’t know what he was doing – messing around with screens - no idea what he was doing. 

It is put to the Complainant that she has a list of people who were acting out to which she responds listing out people acting out doesn’t mean she has to be doing everyone else’s job. 

The Complainant accepts her health became an issue she has critical hypertension and she takes medication once a day and all this emotional stress is hitting critical hypertension.  The Complainant confirms Ian Price was made aware of this. 

Her doctor gave her a week off and her blood pressure went down and that they got the complaint on 30 October and called her in on 04 November for an informal chat and asked did she want a solicitor and she submits did they think she had one in her pocket. 

She was told by her doctor she could do the investigation and that they were playing tactics.  The Complainant submits she has done some HR and that’s a delaying tactic after being told your complaint won’t be dealt with.

It was a hostile environment and these people have brought humiliation and shame to her life.   The investigation was a farce; its all smoke and mirrors.   Ian Price was her line manager and how can he be impartial; some of the stuff was off the wall and the appeal had no meaning it was a regurgitation. 

The Complainant confirms the witness present at the grievance hearing was not a colleague; she had been told she had to take a colleague to the investigation and she would not open a colleague up to ridicule as these people hunt in packs. 

The Complainant is asked if she has seen the right to be accompanied at an investigation and by whom as set out in the policy in the employee handbook to which she replies she had seen it but you should be able to bring anybody you want and her witness had to remind Ian Price when he objected that it was her legal right to have somebody to take notes.  Every step of the process was unfair and they cherry picked all the information. 

It is put to the Complainant that she views an awful lot of people / colleagues not performing with which she agrees and that she was told by Ian Price on the very first week – no fighting and that he would deal with it. 

Complainant closing submission

This is a complaint of constructive dismissal and the Complainant relies on both tests.  Under the contract test the Complainant was undermined, threatened and shouted at.  She made a complaint and she was not supported.   She has a statutory right to be in a safe workplace.  There are aspects of bullying and harassment.  The Respondent did not adhere to the policy as set out in her contract.  The contract test is made out.

For the reasonableness test the Complainant is relying on much the same.  Nothing happened with her complaint for two weeks.  IP has denied he told her the complaint was going nowhere.  The Complainant was suffering from high blood pressure and nothing happened for two weeks which was conduct so unreasonable as to justify resignation.  Respondent did not adhere to its own policy.    Evidence has been given to denigrate her performance but this was never put in issue during her employment.  Raising these matters now is a retributive form of defence. 

Contract issue – never signed and the contract did not include a role description.  This entire dispute could have been avoided if a role description had been made available. 

CA-00068256-001

Overview Respondent written submission

The Complainant was employed as Finance Manager from 8/08/2023 until her resignation on 15/11/2024, with her employment ending on 13/12/2024.

The issues began with a conflict between the Complainant and a colleague in NI Mr. Paul McCusker (PMC)).  Arising from issues between the Complainant and PMC the Respondent met with the Complainant in July 2024.  The Respondent indicated to the Complainant that she was not to engage directly with PMC.   The Complainant was to get information that she may require through a colleague of PMC.  Relations between the Complainant and the colleague of PMC in Northern Ireland deteriorated shortly afterwards and then the Respondent decided that a colleague of the Complainant (in ROI) would get the information from Northern Ireland and the Complainant should no longer be seek to get information directly.

On 30/10/2024, the Complainant filed a formal complaint against PMC an employee of Rockabill NI. PMC is Manager of Rockabill NI, Atlantic Sea Gold, and Administration Manager for Fishing Trawlers NI.

Respondent’s Investigation of Complaint

Time line of Events Date Sequence of Events

·       21/10/2024 - certified sick on work related stress from the 21/10/2024

·       21/10/2024 submitted a sick certificate from 21/10 to 28/10 and reason cited on certificate was Work Related Stress

·       30/10/2024 Formal complaint made

·       31/10/2024 Receipt of formal complaint acknowledged and Respondent waiting for the Complainant to be certified fit to participate in a HR process

·       31/10/2024 Complainant expressing the view she didn’t want the complaint processing to await her certified fitness to participate

·       31/10/2024 Respondent restates need to be certified fit to participate

·       31/10/2024 Complainant restates that she is not certified sick

·       4/11/2024 Informal conversation

·       15/11/2024 Complainant tendered her resignation

·       19/11/2024 Respondent invited the Complainant to a meeting on 21/11 to review her complaint

·       19/11/2024 Complainant responded that she felt unwell and submitted a doctor’s certificate from 19/11 to 26/11

·       20/11/2024 Complainant advised the Respondent she felt well and still wanted to proceed with the meeting

·       20/11/2024 Complainant emails Respondent advising of the procedures under Protective Disclosure

·       20/11/2024 Respondent confirmed that a Dignity at Work investigation will be postponed until the Complainant was fit to participate

·       21/11/2024 Complainant acknowledges the postponement, that it is a DAW investigation and she is very sick

·       13/12/2025 Complainant’s employment with the Respondent ended

·       17/12/2024 Investigation Meeting with Complainant

·       17/01/2025 Investigation Meeting with PMC

·       29/01/2025 Investigation report issued to the Complainant and to PMC

·       31/01/2025 Complainant appealed the investigation report

·       6/03/2025 Appeal report was sent to the Complainant

The Complainant was on leave for all but one day of the 2 week period commencing 21/10/2024 through to 4/11/2024. This comprised of certified sick leave followed by 3 days of annual leave on 29/10, 30/10 and 31/10. The Complainant’s certified sick leave as follows:

·       21/10/2024 - 28/10/2024 Stress Work Related/ as blood pressure was seriously high)

·       19/11/2024 - 26/11/2024 Stress Work Related

·       26/11/2024 - 5/12/2024 Stress Work Related (5/12/24 employment ended)

·       6/12/2024 16/12/2024 Stress Work Related The Complainant was certified sick for 5 weeks due to work related stress between 21/10/2024 and 16/12/2024.

The Complainant indicated to the Respondent that she was having difficulty getting an appointment with her doctor but that she was likely to be seeing her doctor the week commencing 4/11/2024. The Complainant submitted her complaint on 30/10/2024.

The Complainant took exception to being asked to submit a fitness to work certificate on her return to work notwithstanding the fact that she had been certified sick on work related stress for a period of 6 working days during that time and that she indicated to the Respondent that she was seeking a further appointment with her doctor on the week commencing 4/11/2024.

The Complainant’s own evidence acknowledges that on her return from leave she threatened the Respondent by commenting “looks like I am warming up the seat in the WRC for him”.

In line with company dignity at work policy the Respondent had an informal meeting with the Complainant on 4/11/2024 with a view to seeking to resolve matters informally.

At this point the Respondent did not have a return to work fitness certificate. The Complainant’s own evidence shows that the tone and content of her engagement with the Respondent during this informal process was unprofessional. The Complainant acknowledges that she stated, “why should I lose my job because he is a prick?”

The investigation into the Complainant’s complaint found further evidence of unprofessional behaviours by the Complainant where she referred to the Complained of as “only an accounts clerk” is unlikely to contribute to productive working relations”.

In the 2 week period from 4/11/2024 to 15/11/2024 a number of issues that arose relating to the accuracy of the accounts produced by the Complainant. These issues related to the valuation of stocks which resulted accounts being inaccurate. At the end of the two week period (14/11/2024 and 15/11/2024) there was also an announced BRC audit.

The Complainant submitted her resignation on the same day of the unannounced audit and after a 2 week period when her work was subject of scrutiny for accuracy and reliability. Given the Complainant’s repeated demands the Respondent issued an invitation to the Complainant on the 19/11/2024 to a meeting to review her complaint on 21/11/2024.

On the 19/11/2024 the Complainant declined the invitation to meet to review her complaint because she was not feeling well. On the 20/11/2024 the Complainant advised that she was no longer feeling unwell and wanted to accept the invitation to meet on 21/11/2024.

At this point the Complainant was certified sick leave up to 26/11/2024 due to work related stress. The correspondence from the Complainant on 20/11 oscillating between being well / unwell, being certified, being reviewed by her doctor, taking advise from her solicitor, etc.

The Respondent’s position was there would be an investigation when the Complainant was fit enough to participate regardless of the fact the Complainant’s employment with the company was coming to an end. The Complainant advised the Respondent on 11/12/2024 “I feel it is inappropriate for you to ask me for a medical certificate as I will no longer an employee of the company. My health is none of your concern”. 

The Complainant position swings between submitting sick certificates related to work related stress, to self diagnosing that she is fit to participate in a HR process during at a time she is professionally certified unfit for work and then changing her self-diagnosis that she is feeling unwell a day later. The Complainant’s erratic behaviour was a concern for the Respondent. 

Investigation

The Complainant’s complaint was investigated under the company Dignity at Work Policy.

Investigation Format and Procedures.  

The investigation was conducted in accordance with fair procedures, natural justice, and good practice.  It included an informal meeting on 4/11/2024 and a formal investigation meeting on 17/12/2024.

The investigation report was issued on 29/01/2025. The investigation was conducted in accordance fair procedures, natural justice and good practice in relation to rights to be accompanied, note taking, issuing of draft notes, issuing of a report and advising of the right to appeal etc. The investigation meeting with the Complainant was conducted on 17/12/2024.

The investigation was completed and the report issued on 29/1/2025. The elapsed time for completion of the investigation from the initial invitation to meeting the Complainant on 21/11/2024 to issuing the investigation report was c. 2 months. This included a 2-week break during Christmas 2024 (23/12/2024 to 6/01/2025). The elapsed time from the submission of the complaint to the issuing of the investigation report was 3 months. During that 3 month period the Complainant was on certified sick leave due to work related stress for 4 weeks. The target time for completion of a workplace investigation under the OGP Framework Contract is 3-months. The elapsed time from the submission of the appeal of the investigation report to issuing the appeal report was 5 weeks.

Investigation Outcome

The investigation concluded that there was an affront to the Complainant's dignity at work, but the overall complaint was not upheld.  The investigation findings and conclusion stated “There were instances of LK being frustrated in accessing and understanding information she needed to make returns and produce accounts. • LK was frustrated with the lack of alleged IT, technical accounting skills and knowledge • LK was frustrated with the availability of data / information to compile accounts and PMC response times.  There was a lack of evidence in relation to many of the alleged matters complained of.

Strong exchange of views are not bullying.  LK’s own approach appears to have contributed in part to state of relations between the PMC and LK. Notwithstanding that there was more likely than not an affront to LK’s dignity at work.  Overall the complaint is not upheld.”

Appeal

Appeal Outcome

 The Complainant had 9 grounds of appeal. Of the 9 grounds of appeal, 2 were upheld, and 7 were not. The upheld grounds included difficulties in gathering information and unauthorised access to the Complainant's email. The overall appeal was not upheld.

CA-00068582-001 complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994

The Respondent disputes the Complainant's claim that she was not issued a contract of employment. The Complainant was issued a contract on her first day, which she did not sign but did not raise any objections to. The Complainant was issued with the contract of employment on 8/08/2023 as shown in the appendices. 

Notwithstanding repeated requests the Complainant did not sign her contract of employment. The Complainant did not communicate any concern issue or objection to part of all of her contract of employment.  Notwithstanding the fact that HR and Employment law were not within the Complainant role and responsibility, the Complainant was active in ensuring employee compliance with company polices and procedures as shown in the attached letter to an employee date 23/09/2024.

The aforementioned employee handbook has several references to employees contract of employment.  The Notice and Termination clause in the Complainant’s contract of employment stipulates the Complainant was required to give one month’s notice to the Respondent. The contract also stipulates that the Respondent was required to give notice in accordance with the Minimum Notice and Terms of Employment Act, 1973 to terminate the contract.  The Complainant resigned her position on 15/11/2024 and her complaint to the WRC indicates that he final date of employment was 13/12/2024. The Complainant gave the Respondent 4 weeks notice as per her contract of employment.

Minimum Notice and Terms of Employment Act, 1973 specifies that for an employer to terminate the contract of employment of their employee shall be one week if the employee has been in the continuous service of his employer for less than two years. The foregoing shows that the Complainant acted in accordance with the termination clause in her contract of employment

Summary

The Complainant was issued a contract on her first day, which she did not sign but did not raise any objections to.  The Complainant resigned her position as Finance Manager on 15/11/2024 and gave notice of her resignation 4 weeks notice in compliance with her contract.  Given the Complainant’s length of service ( c. 15 months ) the relevant notice period under Minimum Notice and Terms of Employment Acts 1973 – 2005 is one week.  If there was no contract of employment there would be no obligation on the Complainant to give 4 weeks notice.  The Respondent disputes that the Complainant was told nothing would be done with her complaint.  The Respondent did inform the Complainant that the processing of her complaint would be on hold until she was deemed fit to participate in the process.  The delay was necessary to ensure the Complainant was fit to participate in the process.  The Respondent followed best practices by requiring medical certification to confirm the Complainant's fitness to participate in the process.  The Respondent maintained consistent communication with the Complainant, acknowledging her requests and providing updates on the status of her complaint. 

Given that the Complainant had submitted medical certificates citing work related stress covering a period of 5 weeks (1 week in the 3 weeks prior to her resignation and 4 weeks during her notice period) the Respondent was following best practice by requiring medical certificates that the Complainant was fit to participate in an investigation process.  The Respondent’s seeking to resolve matters informally is line with company DAW policy and best practice.  The Respondent followed best practice in seeking professional certification that the Complainant was fit to be at work in the first instance and fit to participate in HR process arising from her complaint.  The Respondent’s investigation was thorough and followed fair procedures. The lack of evidence in relation to many of the alleged matters complained of was due to the Complainant's inability to provide sufficient proof.

The Complainant position swings between submitting sick certificates related to work related stress, to self diagnosing that she is fit to participate in a HR process during the time she is professionally certified unfit for work and then changing her self-diagnosis that she is feeling unwell a day later.  The Respondent found evidence of unprofessional behaviour by the Complainant, which contributed to strained relations.  The Respondent addressed these behaviours appropriately by channelling communications indirectly.  The Respondent provided the necessary information and support to the Complainant.  Any frustration experienced by the Complainant was due to her own approach and not the Respondent's actions.  The Respondent were concerned about the Complainant's erratic behaviour and took appropriate steps to address it. The Respondent followed best practices in handling the Complainant’s behaviour.  The elapsed time of 2 months for completion of an investigation into the Complainant’s complaint is reasonable. It is noted that the Complainant resigned her position within a few weeks of when she was challenged about the accuracy of her accounts.

Day 2

Summary of direct evidence of Respondent witness Mr Paul McCusker (hereafter PMC) on oath

Commenced working in the business in January 2014.  Main role was to set up processes and procedures and liaise for year-end reports. In 2020 made GM for Rockabill NI and in 2022 GM Atlantic Seagold Limited.  Liaises with Financial Controller and with external accountants. 

The Complainant started on 01 August 2023.   She took over from the previous financial controller.  They would have had a few conversations and had a normal working relationship.

The Complainant was very keen; there was nothing untoward in their relationship.  The first main interaction with the Complainant was in December 2023; they were working very hard to get the accounts up to date and the VAT return was due on 7 January.

Lots of work required for this and it would be difficult to get everything done so applied for an extension.  There were lots of emails back and forth they were all on holidays but it’s a 24/7 industry.  The Complainant didn’t agree with the extension.  Ian would have been cc’d on all the emails.  There were auditors in NI and auditors in ROI; there are different regulatory requirements.  The extension was granted by HMRC. 

After Christmas they got back to the task in hand and he had no reason to believe anything was amiss between him and the Complainant.   He has a good knowledge of the company and he could see if something didn’t look right in a profit and loss account for example.  He had noticed a number of what he considered issues that would have an impact on the ledgers and in the payment of vendors that should be recorded in two different ways. 

The bank reconciliations reports weren’t being run detailing unreconciled items.  When payments are not recorded properly there are implications for VAT. 

The rules of day-to-day transactions to management accounts have been drilled into him from the early days.  The Complainant was dismissive of him when he raised anything with her.

This culminated at a meeting in July 2024.  The Rockabill year-end due end of September.  There was a meeting attended by Ian and Bill price together with the witness and the Complainant. 

The Complainant got very vocal at the meeting and she started shouting and raising her arms.  Ian said can they just calm down or he will have to call a halt to the meeting.  Anger doesn’t help in any shape of form he was only asking questions about the accounts - factual things. 

Ian said at the end of the meeting (end of July) the most important thing is to get the accounts right and to give her time and space; the NI accounts would be back with him and confirms there was a  redistribution of responsibilities. 

During August September and October once that decision had been made they wouldn’t have had much contact.  The Complainant was looking for full accounts and saying she needed them completed.   The intercompany balances were what was required for filing the Rockabill accounts and not the full accounts but that is what she was looking for.  When pressure was mounting on both of them her attitude would have changed dramatically and she treated him the way she referred to him - as a junior accounts clerk. 

Summary of cross-examination of PMC

His initial contact with the Complainant would have been an email introducing himself and a phone call.  Interactions in the first month would have been just general.  [REDACTED] was the office manager in NI.  The Complainant wanted to centralise more things down in Balbriggan and he asked her to be kept in the loop.  The office manager reported to him and the Complainant would have interactions with both of them. 

It is put to the witness that he had said the Complainant wanted to change the way things were done to which replies yes the way information would be gathered.  The witness submits he has been operating at senior management level for 14 years and his knowledge is industry based; he never he never questioned her about her qualifications.  With regard an exchange of texts emails opened to the hearing the witness submits that the breakdown of what is paid is sensitive commercial information which should be retained and not given out. 

The boat in question has an agent and are competitors of the Respondent and he submits he did highlight in capitals not to send such information to [redacted] and he does not accept the email would have come across as aggressive.  The witness submits he does not recall a phone call but it is unlikely he would send a follow up email a week later he would have send it on the same day.  It is put to the witness that his style at best is direct and at worst is aggressive which he does not accept. 

It is put to the witness that the Complainant had found errors to which he replies fine – show me the errors – lets fix it.  The witness is asked if he was conciliatory at the time to which he replies of course he was he is a logical person so let’s fix it and move on they all have the same end goal here.

It is put to the witness that the Complainant said he shouted and roared which he does not accept and submits he never shouted at her.  The witness is asked what he did when the Complainant looked for information to which he replies he gave her what she wanted and if he didn’t have all of it he would ask her what she wanted him to prioritise and to show him what he wasn’t doing right. 

The witness submits the Complainant makes it seem like there was confrontation all the time and that is not his recollection.  It is put to the witness that the Complainant set out her concerns about the VAT extension in an email on 23 October to which the witness responds he too expressed his concerns which is why he applied for an extension.  The extension took the pressure off and the Complainant didn’t agree with him. 

It is put to the witness that the Complainant was being constructive here which he accepts and submits he had said that from the start and it was great to have somebody who was keen to get their hands dirty.  The witness is asked if he sent the digipass the Complainant requested to which he replies he would assume he did.    

It is put to the witness that the Complainant says that some of the accounts had not been reconciled for 21 months and that there was a backlog.  The witness is asked can he not see this was stressful for the Complainant to which he replies he cannot speak to how stressed she might have been but that her attitude to him would have changed during stress. 

The witness is asked about a conversation in March during which he questioned the Complainant’s qualifications in front of the auditors to which he replies he had never been in the room with them. 

The witness is asked how it was communicated to the Complainant that she wouldn’t be looking after the NI accounts and is asked what time the meeting started.  Does not recall what time the meeting started and the redistribution was to give her more time and to spread the workload. 

He had very little contact with her thereafter.  It is put to the witness that is has been established that he isn’t an accountant which he agrees and maintains the process in doing accounts does not change whether you are an accountant or not but he is not qualified to file accounts. 

It is put to the witness that the Complainant has said it was extremely frustrating trying to get stuff from him to which he replies no others had that problem.  The witness strenuously denies he was reluctant to change and denies he threatened to resign in August 2024.  The witness submits he would have expressed some concerns about her work and would have said to her tell me I am right or tell me I am wrong – the more eyes people have on something the better.  The witness did not bring his concerns about her work to anybody as they were all working towards the same goal.  The witness denies that he made a complaint in October 2024. 

It is put to the witness that the Complainant said she was asking him for the digipass for months to which he relies there were 5 digipasses and as soon as they arrived they were sent down.  The witness submits the Complainant made allegation that he fired the digipass at her which was subsequently clarified by her. 

It is put to PMC that the relationship was highly unpleasant; he undermined her before her peers and the auditors; he shouted and roared and he was verbally abusive.  This is not accepted and the witness submits that he made it clear to her if she wanted to change anything that is great just keep him in the loop.  The witness has operated at senior management level for 25 years and has never had a complaint made against him and it’s just not in his nature. 

Summary of direct evidence of Mr Ian Price, MD of Respondent (hereafter IP) on oath

IP was aware of the working arrangements between the Complainant and PMC in that they would communicate and share information.  His relationship with the Complainant was fine and he wasn’t aware of any difficulties.  IP was present at the meeting in July and the aggression from the Complainant couldn’t be controlled and he told her they would have to close the meeting if she didn’t stop and she stopped.  The Complainant was extremely aggressive towards [redacted] in a meeting with him regarding the bike to work scheme to the extent [redacted] said just forget about it.  He had to tell her to please stop. 

There was a delay in commencing the complaint under the Dignity at Work Policy because the BRC audit was taking place – nothing to do with accounts – it’s a food safety standard audit that takes place annually and takes two to three days.  It is hugely important for their business but it did delay the investigation getting underway.    IP submits he needed to be there for it so there was a delay after the complaint was raised on 30 October and she had been on s/l from 21 October. 

The Complainant was keen to push on with it but he needed fit to work cert before he would start to ensure she fit and capable to participate. 

She never completed a set of accounts on her own.  Hired in August a month before year end and it was a lot to take on – new environment new business new people.  Previous FC did the monthly accounts until the Complainant was hired and he kept him on to train her on year end. Wanted to give her a bit of time to learn and she learned the whole procedure from him. 

Coming up to year end 2024 lot of pressure coming from Complainant.  The stock value is very important in the accounts – upset stressed and confused – told her to stop worrying about it. 

At the July meeting decided to relieve her of the worry and stress on NI accounts wanted her to focus on Rockabill – that is the mother company. 

The investigation was conducted as fairly as possible – interviewed her and she had her friend Tina there as a witness.  She had an issue with [redacted] because he isn’t a professional notetaker.  She wasn’t happy with the notes wouldn’t sign off on them.  She appealed.  Friend is a non-work colleague but she (the Complainant) insisted that she attend   

She was provided with her contract of employment and handbook.  Never signed the contract.

Summary of cross examination of IP

He interviewed the Complainant with Bill.  He is not an accountant he just wanted to sit down and have a chat with her wanted someone who would get on with everyone and he wanted to see if they were a strong person.  He took her at her word that she had the qualifications.  He asked for a signed copy of the contract to be returned but she said she hadn’t got around to it and he checked in randomly with her a few times to get a signed copy back.  IP denies he said to the Complainant ‘sure you have no contract anyway’. 

Reads clause 4 of the contract into evidence as follows:  “The employee will be employed primarily as Finance Manager.  Please refer to the current job description for this role which is attached …” she says it wasn’t attached and one of the key issues is lack of clarity on her role.  Don’t agree with that I make sure people are fully aware of what their responsibilities are.  First week or two hired [redacted] to do the induction who better to show somebody than the previous.  Hired him show her how to work the bespoke system tailored to their business and good opp to show her year end as well.

She never met [redacted] all done over the phone or on Teams.  Offered her a company phone she didn’t want it.  It is not accepted that a remote induction not fully adequate.  IP finds it hard to believe she didn’t know where the ladies was for two weeks.

He was a witness to her being aggressive with two people; they did not make formal complaints but he was there himself.   

Not challenging her ability as an accountant but skill and ability did arise and that’s why they had the meeting in July – not receiving any monthly accounts from her like from the previous FCs. 

Never told her the complaint was going nowhere and asked for fitness to work cert in the context of what her certs had said – didn’t want to aggravate her further.  

IP submits it was submitted as a formal complaint and investigated accordingly when it is put to him that it appears the informal stage was skipped through.

IP confirms he is the CEO and the Board of Management when it is put to him that the reference to a panel in the policy implies more than one person.  Investigation began mid-November as she was on s/l she returned on 01 November and resigned on 15 November after which investigation started  - day she handed in her resignation was the final day of the BRC audit. 

It is put to the witness that [redacted] served as notetaker but he allowed her friend (TZ) to attend to which he replied he had no choice and it had dragged on for long enough.  IP confirms that he just accepted it that TZ be allowed to attend but he was concerned as the camera was off and he knew there was something else going on but he couldn’t see it. 

There were discrepancies with the notes taken by [redacted] and by TZ and some of the amendments were allowed.

It is confirmed the person hearing the appeal was the company auditor and the Complainant wasn’t happy he was independent. 

The witness doesn’t recall a conversation of 29 September with the Complainant where she raised an exchange she had with PMC or a conversation of 19 October where the Complainant spoke to him regarding her inability to get bank statements.  It is put to the witness that the Complainant found (PMC) him to be secretive and hiding information which is denied. 

The witness addressed interpersonal concerns at Christmas 2023 when he advised take your holidays and to take the time off you are given and told her he didn’t want to see her in the office after 5 and to go home and be with her family.

It is confirmed the issue at that time wasn’t to do with his company and he submits the Complainant couldn’t have been blocked from accessing information as they can access everything that’s available on the system – even the girls in the office can access.  IP doesn’t recall the Complainant talking to him about her concerns at that time. 

It is put to IP that he told the Complainant in August 2024 that PMC was delicate and said they needed him more than they needed her.  It is put to IP there were issues in Dec and July and then out of the blue comes the complaint with which he agrees.  IP submits he does not recall the extent of what is now being said by the Complainant other than July and December. 

It is put to IP that the Complainant was trying to put in place systems and she was greatly frustrated by PMC and he did nothing about it which is denied.  IP submits he intervened in July when he took the work away from her.

It is put to IP that it was an unsafe place for the Complainant and she was ganged up on which is not accepted.  It is put to the witness that the investigation was stacked against her and went against their own policies.  It is put to IP that he told her the complaint was going nowhere and nothing happened for two weeks and she had no choice but to resign which is not accepted. 

Summary of direct evidence of Respondent witness Mr Bill Price (hereafter BP) on oath

BP founded the business and retired a few years ago.  He has his own small business now which he conducts on the premises so he is in and out but a month could go by and you mightn’t see him.  BP submits he had a very good relationship with the Complainant and she gave him a birthday card and Xmas card.   

There were issues on matters of stock for year-end September and she came across a little bit unsure and IP said to give her a hand.  There were errors of computation.  When asked straight questions if the Complainant didn’t have the answer she would divert to something completely different. 

They always had monthly accounts previously but that never happened with the Complainant.  BP submits the workplace had always been a happy environment and he always drove it home that they were there to work and to help each there.

Cross-examination of Respondent witness BP

BP confirms he no longer has a formal role in the Respondent company and he now has one small company and he used to chat to the Complainant about it.  It is put to BP that she did a favour for him which is accepted and he submits he would help her.  His company is a boat not a business.  It is put to the witness that the Complainant would have given cards to all her colleagues.   

With reference to errors in computations it is put BP that the Complainant has said that he roared at her which is denied and submits the computations were so far out he was shocked and clarifies it wasn’t the valuations.  The witness submits that he does not roar and shout at anybody.  The witness submits he felt let down that she could not explain the figures and confirms that they had a pretty positive relationship up to that time. 

BP went to the meeting on the 24 July as he was on the premises that day and that IP’s interests are also his interests. 

BP submits the Complainant was very upset with PMC and submits he had never witnessed him being aggressive and that things in the business could be intense but that PMC held his head.  The witness is asked if she had raised concerns to which he replies he is not going to say that she didn’t as she might have said that an equation was wrong or whatever. 

BP submits IP felt there was conflict and they felt they needed to make life easier for themselves and for the Complainant and PMC.  BP submits he asked a question he shouldn’t have and she flung the whole thing at him; admits he was wrong to ask the question. 

She said from when she had started she was being blocked by him (PMC) and stopped from doing her work and that he (BP) knew all that but how could he as he had retired and he would be there for maybe a few weeks in the year. 

It is put to the witness that the Complainant had spoken to him about legacy issues regarding a signatory on an account which he does not recall. 

BP doesn’t recall a conversation with the Complainant in August 2024 when he told the Complainant to treat PMC with kid gloves and he submits he did say to her (the Complainant) that she was going to have to calm down. 

BP is asked if he said to the Complainant that they needed him (PMC) more than they needed her (the Complainant) to which he responds absolutely not. 

He is asked if that would sound like a threat to him if he was told that to which he replies yes it would but he didn’t say it and he would be upset if somebody said such to him. 

Confirms he had no role in investigation.

He recalls his last interaction was when he asked about errors and she (the Complainant) side tracked.  The Complainant came straight into the office when he was there with IP and stood there and said she didn’t like his attitude. 

It is put to the witness that at the very least there was an interpersonal conflict and did he not think there should have been a more robust internal process that should have stopped it all to which he replies that when IP separated them that should have stopped it all and he had felt that would be the end of it.  It is put to BP there is no internal hr person.   

BP denies that he said to the Complainant that he didn’t trust her.  BP is asked if he asked to see her qualifications to which he responds he did ask and she (the Complainant) refused to produce them.  It is put to BP that the Complainant will say that he has them already.  It is put to the witness that questioning somebody’s qualifications is a serious matter and would come across as threatening and undermining.  The witness denies that he said to her there was a complaint from the girls downstairs. 

When asked if he did anything about the heightened state between them he said he felt that when IP subdivided them that would be the end of it. 

Summary of direct evidence of Respondent witness Mr Paul Conaghy (hereafter PC) on oath

Involvement with the company goes back over 40 years.  Audit partners with the practice are rotated and they’ve been auditors for the Respondent for 15 – 18 years.  There were 9 grounds of appeal some of which were technical with two being upheld.  Did not identify any procedural flaws.   The appeal was heard on the papers and he has never met PMC and had spoken to the Complainant in September.

Cross-examination of PC

They were requested to hear the appeal in January.  BP would have contacted the firm and it would have come through to him.  It (hearing an appeal) would be seen as part of their role and would be seen as something they would undertake as they have 20 staff in their firm and a lot strings to their bow.  He has undertaken two other appeals in the past 4 or 5 years. He does not have a legal or an HR qualification and his methodology was the same as he had utilised in his previous appeal hearings.  He would have enlisted the assistance of staff members in his firm.  It is put to the witness that an entire chunk of the policy was skipped. 

Closing submissions Respondent

The evidence does not support the claim.  Workplace differences are acknowledged and the Respondent separated them in July.  The Complainant’s own tone and behaviour contributed.  Difficult workplace relations are not in dispute.  The projected target time for the completion of a dignity at work policy is three months.  No HR professional would consider progressing the process in the case of a staff member out on sick leave with work related stress. 

The Respondent acted reasonably and there was no delay – the Complainant cannot rely on self-certification when certs are submitted.  Referencing the claim the Respondent didn’t follow the policy it is submitted that the Complainant’s friend was allowed to attend with her – wanted to do it remotely and this was all granted.  The appeal upheld two narrow points.  It is not fair to say that it was never put to her about the reliability of her accounts – it was and BP offered to help her. 

Her contract was handed to her and she did not raise any issue.  The role description was provided on the advertisement and was not appended to the contract.  The decision to resign was the decision of the Complainant and this complaint should be dismissed. 

CA-00068256-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  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.

I have two versions of events before me that are entirely at odds in most respects having regard to the manner in which events unfolded during the tenure of the Complainant’s employment with the Respondent.  Both parties were under oath but seemed to differ markedly in their interpretations and / or in their recollections.  Both parties gave sworn evidence in support of their version of events and contested the opposing account.

For the most part, versions given by the parties are irreconcilable. 

Notwithstanding, 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. 

I am guided by the findings of the Labour Court in Rezmerita Limited v Katarzyna Uciechowska [DWT1018] where the Court held as follows:

“In this case there is a marked conflict in the evidence tendered on behalf of the Respondent as against that given by the Claimants in relation to all material issues arising in this case.  There was also an absence of any probative independent corroboration on either side.  The standard of proof necessary to rebut the presumption of non-compliance is the preponderance of probabilities, usually referred to as the balance of probabilities.  In Miller v Ministry of Pensions [1947] 2.All E.R, 372 Denning J. (as he then was) explained, in relation to this standard of proof, that: -

“[i]f the evidence is such that the Tribunal can ‘say we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.”

CA-00068256-001 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 her 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 also access available grievance procedures to deal with the circumstances which led him/her to resign.  [emphasis added] 

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 her 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, she had no choice but to resign

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

The Relevant Facts

The Complainant resigned from her employment and therefore is claiming that she 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 she was constructively dismissed. 

The Contract Test

I must consider whether there has been a repudiatory breach of the contract of employment.  The Complainant advances a number of reasons to ground her claim of constructive dismissal; she relies on both the contract test and the reasonableness test.  I note under the former the Complainant submits she was undermined, threatened and shouted at.  The Complainant relies on the Respondent’s non-adherence to its own policy.  The Complainant submits there are aspects of bullying and harassment and submits she has a statutory right to be in a safe workplace. 

I note for the latter (reasonableness test) the Complainant is relying on ‘much the same’ as submitted in closing submission together with the assertion that nothing happened with her complaint for two weeks.  I note it was submitted in closing that the Complainant was suffering from high blood pressure and nothing happened for two weeks which was conduct so unreasonable as to justify resignation.   

I note the Complainant commenced employment with the Respondent on 08 August 2023.  I note the Complainant in direct evidence avers she received a bog-standard contract that hadn’t been signed by anybody; there was no onboarding or training and she didn’t know where the toilets were. 

The Complainant submits she had expected there would be a meeting where she would be told what she would be doing. 

Notwithstanding the alleged inauspicious beginning, I am of the view the Complainant very quickly familiarised herself with the role and I note the vacancy notice when she initially applied for the position set out the primary functions of the role.    

However, I note the Complainant expected to receive a signed statement of tasks.  I am not persuaded that this is a requirement for somebody operating at such a senior level in an organisation.       

I note also the Complainant’s predecessor remained on payroll at the Respondent company and the Complainant under cross-examination does concede that he ‘explained the whole thing’ to her. 

I note the Complainant very clearly set out her work agenda for going forward in a comprehensive email to PMC and to his colleague [redacted] on 23 October 2023 while acknowledging the ‘mammoth amount of work on these accounts already.’  

It would appear the Complainant settled into her role and matters were uneventful until her first interaction with PMC on 29 September 2023 where it is alleged he shouted at her over the phone while he was driving. 

The Complainant in her written submissions asserts this interaction ‘caused her significant distress and left her physically shaken.’ 

Conversely, PMC avers ‘they would have had a few conversations and had a normal working relationship’ and that his first main interaction with the Complainant was in December 2023.  

The foregoing provides one example of the conflict in the evidence adduced of which there are several and I do not propose to highlight them all. 

From the evidence of the Complainant her opinion of PMC on a professional level becomes apparent.  In direct evidence the Complainant avers he had ‘no qualifications’. 

Under cross-examination the Complainant submits ‘he didn’t know anything; never sat in a classroom and yet he knew it all.’ 

In the narrative on the WRC complaint form the Complainant describes PMC as a ‘junior accounts clerk’ and poses the question ‘how could I be expected to work without the information I required and relate to a Paul who had not accountancy training and did not understand the mechanisms!’ [SIC]    

In direct evidence the Complainant submits ‘he doesn’t understand VAT at all.’ 

I am in no doubt that professional differences of opinion existed between the Complainant and PMC as she endeavoured to implement her new order in her role as Finance Manager.  Numerous examples of these professional differences were opened to the hearing.  I do not propose to document them but I note the underlying trend appeared to be that as the Complainant sought to implement her way of doing things she was met with what was perceived to be resistance from PMC who she described as  ‘very secretive and would not handover the information needed’ when she complained to the Respondent IP. 

On balance, having carefully considered the conflicting evidence adduced I find it difficult to escape the conclusion that PMC was likely resistant and it is more probable than not that he prevaricated when information was requested by the Complainant. 

Conversely, I note PMC in direct evidence averred the Complainant ‘was dismissive of him when he raised anything with her.’

I am of the view professional differences of opinion among colleagues are for the most part unremarkable and part of the daily routine in the work environment in most if not all organisations.      

However, it would appear from the evidence presented that these professional differences seemed to degenerate very quickly into interpersonal conflict between the parties and a relationship developed which can best be described as dysfunctional.  I can find no evidence of a constructive or mutually beneficial professional relationship between the Complainant and PMC. 

I would make the observation that whatever the views any of us might have about our colleagues in the workplace there is a level of professionalism that is required to be maintained which appears to be non-existent in the relationship between these parties; a relationship which appeared to have as its defining characteristic a mutual lack of respect between two colleagues operating at a senior level in an organisation.        

It is apparent from the evidence adduced that this was more than what could be described as a personality clash and was such that the Respondent IP had to take measures to ensure a separation of the parties. 

I note the Complainant avers she complained about PMC on many occasions to the Respondent (IP) culminating in a decision to hand over certain functions to PMC which in the narrative of the WRC complaint form the Complainant submits she believes ‘was Ian and Bill’s effort to separate PMC and I as I had been complaining about his behaviour.’

I note a business decision was taken involving a redistribution of responsibilities in July 2024 to ensure that the Complainant did not have to engage directly with PMC on foot of the complaints she made to the Respondent. 

I note in August the Complainant submits she was told by IP that PMC was going to resign which was all her fault and which is denied by both PMC and IP.  Nothing turns on this; it is yet another example of the conflict in the evidence adduced.   

From the Complainant’s evidence it is very clear that she was confident in her professional ability and justifiably proud of her qualifications. I note in cross-examination the Complainant submits it wasn’t easy to get her qualification.    From the evidence adduced it is also very clear that the Complainant did not take kindly to being questioned or to any issue being raised in regard to her outputs as is evidenced in her interaction with BP.   

From the Complainant’s evidence I was left in no doubt that she held herself to very high standards  and she had an expectation that work would be undertaken accordingly by her colleagues and, moreover, that it would be undertaken in a manner prescribed by her.  I accept her frustration when her expectations did not appear to be met as set out hereunder.          

I note in direct evidence the Complainant maintains that PMC did the accounts up the North and she had to teach him and his colleague how to do a bank statement.  I note the Complainant maintains she had to undertake the work of another colleague that she had requested to look at the stock prices and she submits this colleague did not know what he was doing – ‘messing around with screens.’    

I note there appeared to be a period of relative calm after the separation of the parties post the meeting in July 2024 until such time as the Complainant commenced her preparation for Rockabill year-end accounts.    The Complainant had her view about what she required in order to collate the information for year-end and PMC has his view about what she needed which appeared to differ from what she had requested.   

Accordingly, this escalated to another clash between the Complainant and PMC.  I note there had been the email access incident on 20 September in the intervening period between July and the commencement of year-end preparation.    

I note the Complainant submits in the narrative of the WRC complaint form that BP asked her if she had a problem doing certain accounts to which she replied she could not do them because PMC had taken all the paperwork up to the North.  I note the Complainant went home on 21 October as she was not feeling well and she got a medical certificate from the 21 – 28 October citing hypertension and stress work-related.  

I note the Complainant submitted a formal complaint on 31 October 2024 under the Dignity at Work Policy and she resigned two weeks later on 15 November 2024.    

Turning now to the Complainant’s reliance on the Respondent’s non-adherence to the Respect and Dignity at Work Policy in order to ground her complaint of constructive dismissal under the contract test. 

Much was made by the Complainant that the Respondent did not adhere to the policy based in circumstances where the Complainant herself stepped outside of the procedures and did not appear to have any insight or acceptance of the inherent paradox.

The policy provides as follows:

“Representation at formal investigation meetings

All the parties involved may be accompanied by a work colleague at any interviews held during theformal investigation process.”

I note under cross-examination when the Complainant is asked if she had seen the piece about the right to be accompanied by a work colleague as set out in the policy accepts she has seen it but maintains ‘you should be able to bring anybody you want and her witness had to remind IP when he objected that it was her legal right to have somebody to take notes.’ 

I note the Respondent IP in direct evidence accepts that he allowed the Complainant’s friend to attend and submits he ‘had no choice’.  I am of the view these were matters in which the Respondent should have involved an HR function from the outset because it is apparent a robust HR intervention was required in circumstances where the Respondent appeared powerless to manage and in making this observation, I intend no disrespect to either party involved. 

I find the criticisms of the investigation and the subsequent appeal to be moot for the purposes of this decision; I do not propose to address this further in circumstances where the Complainant resigned within two weeks of filing her complaint and failed to exhaust the internal procedures before taking that action.  The Complainant’s employment had ended before the investigation into her complaint.           

I note the Complainant under cross-examination submits she complained often to IP about PMC.   I note there were two interventions staged the first just after Christmas 2023 when IP intervened in the email traffic that commenced 27 December 2023 between the Complainant and PMC, initiated by the Complainant and on which IP was cc’d as follows:

“Can we just put a hold on this until the 3rd when we are back to work after the holidays and we will have conference call together and see what’s what and to go forward with it.  Thanks enjoy the rest of your holidays.”

The second intervention took place in July 2024 and the Complainant was provided with an alternative pathway to obtaining the information she would require to file the year end accounts for Rockabill so that she would not have to engage directly with PMC. 

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 her 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 her case is that the behaviour of the Respondent and of which she complains corresponds with the requirements laid out in the reasonableness test and was behaviour which left her with no option other than resigning. 

I note for the reasonableness test the Complainant is relying on ‘much the same’ (as the contract test) as submitted in closing submission together with the assertion that nothing happened with her complaint for two weeks.

The Complainant submitted her complaint on 30/10/2024 whilst on a medical certificate that certified work related stress.   

I note the Complainant is critical about the manner in which the Respondent processed her case in general and specifically in relation to the initial delay.  I note under cross-examination the Complainant maintains they (the Respondent) were playing tactics (seeking fitness to participate cert from doctor) and she submits she has done some HR and ‘that’s a delaying tactic after being told your complaint won’t be dealt with.’

However, I note and it is well established in terms of best practice HR procedure that a person certified as medically unfit to work should not be deemed medically fit to participate in the demanding and stressful process of an investigation. 

It would be an imprudent employer who would engage with an employee on an internal investigation without ensuring medical clearance in advance of any investigation and specifically in the context of an employee on a medical certificate attributable to workplace stress. 

In fact, such an approach by an employer if indeed they had sought to commence an investigation may well have been deemed to be inappropriate or oppressive. 

Insofar as the Complainant resigned in the face of allegedly unreasonable behaviour, there is insufficient evidence to establish that any such behaviour was of sufficient gravity as to leave the Complainant with no choice but to resign in light of the foregoing.   

I find the Complainant has failed to establish she was constructively dismissed particularly when regard is had to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” pursuant to the Unfair Dismissals Act.  I cannot find the Respondent acted in a manner which was so unreasonable as to make it impossible for the Complainant to continue in the employment.

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 her claim that she 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. 

The fact remains that the Complainant raised her grievance but she did not wait for the process to play out.  It is well established an employee considering resignation in a constructive dismissal situation is required to engage with, and exhaust internal grievance or dispute resolution process, where they exist, prior to taking the ultimate step of resignation.  This was not done in this case.

Furthermore, I do not find it was reasonable for the Complainant to conclude that she had no alternative and in making this finding I place reliance on Ranchin set out above.   

I am satisfied there were alternatives.  The Complainant could have waited until the internal grievance procedure was exhausted.   I accept the Complainant was on sick leave but it is reasonable to suggest that she could have remained on sick leave and that her GP could have provided her with medical clearance to participate in a workplace investigation.   

Alternatively, had it been her preference to have the matters formally investigated by an independent investigator this could have been notified to the Respondent and requested formally, in writing.  I am unable to accept the Complainant acted reasonably in such circumstances as resigning two weeks after filing her grievance.        

I make the observation on the basis of the evidence as presented that the Complainant had no difficulty in asserting herself with her employer during the course of her employment and I note the Complainant’s submits she has ‘done some HR’ and it is reasonable to infer that she would be aware that many organisations use external investigators.    

I am guided the case of Jabczuga v Ryanair Limited [UD66/2013] where the EAT held as follows:

“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 act reasonably in so doing. Accordingly, this claim pursuant to the Unfair Dismissals Act 1977 to 2007 fails.”  [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.”

I note the Complainant filed her grievance on 30/10/2024 and she resigned two weeks later on 15 November 2024.     

I note the Complainant in the intervening period appeared to return from sick leave as her written submission provides that during her notice period she was ‘denied access to essential information from the Northern office, including daily bank balances.’

I find the fact the Complainant worked some of her notice is counter intuitive to the proposition that the Complainant’s position at work was so untenable that she had no option but to resign.  If the actions of a respondent were so unreasonable that they had no option but to resign, it is implausible that a complainant would work all or indeed any of their notice period. 

Although the Complainant held the view when she resigned that she had outstanding issues with regard to her employment, I find that none of those issues taken together or separately constituted a fundamental or repudiatory breach of contract on the part of the Respondent such that the Complainant was justified in deeming herself constructively dismissed as at the date of her resignation.

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 her employment of her own volition and she has not discharged the burden of establishing she 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 her only option.  Accordingly, I find that she has failed to establish she was constructively dismissed within the meaning of the Act and her complaint cannot succeed. 

CA-00068582-001 complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994.

The Relevant Law

The Terms of Employment (Information) Act, 1994 as amended, sets out the basic terms of employment which an employer must provide to an employee in written form.

Section 3 of the Terms of Employment (Information) Act 1994 (“the Act”) was amended by the Employment (Miscellaneous Provisions) Act 2018.  The amended provisions require an employer, within five days of an employee’s start date, to provide them with a statement containing the following information:

(a)  The name of the employer and the employee;

(b)  The address of the employer;

(c)  If the contract is temporary, the expected duration, or if the contract is for a fixed-term, the end date of the fixed-term;

(d)  The rate or method of calculation of wages and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e)  The daily and weekly hours that the employee is expected to work.

Not later than one month after the commencement of an employee’s employment, they must be given a statement with the following additional information: 

(f)  The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(g)  The job title or the nature of the work that the employee is required to carry out; [emphasis added]

(h)  The date that the employee commences in the job;

(i)  Details of any collective agreement which affects the employee’s terms and conditions of employment and information about where the employee can get a copy of any such agreement;

(j)  That the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of his or her average hourly rate of pay for any pay reference period as provided in that section;

(k)  The pay frequency, whether weekly or monthly or some other frequency;    

(l)  Any terms or conditions relating to hours of work (including overtime);

(m)  Any conditions relating to paid leave (other than paid sick leave);

(n)  Any terms or conditions relating to –

       (i)  Incapacity for work due to sickness or injury and paid sick leave;

       (ii)  pensions and pension schemes;

(o)  The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of employment;

(p)  A reference to any collective agreements which directly affect the employee’s terms and conditions, including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

These statements are generally issued in the form of a contract of employment, and, in most circumstances the five-day statement and the one-month statement are issued as one document containing all the information at (a) to (p) above, plus any other relevant information that the employer may wish to confirm in writing.

The Act also requires this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

The Relevant Facts

The issue for determination is whether the Respondent failed to provide the Complainant with the written statement of terms of employment required under section 3 of the 1994 Act.

I note the Respondent submits the Complainant was issued with a contract of employment on her first day which she did not sign and did not raise any objections to.  The Complainant in direct evidence expressed the view that you usually get your contract after you have passed your probation. 

In closing submission the Complainant representative submits the contract did not include a role description and it was never signed. 

I note the contract as exhibited at clause 4 provides the following:

“The Employee will be employed primarily as Finance Manager.” 

I am satisfied the statutory obligation under section 3(g) has been complied with in circumstances where the job title is set out in the contract. 

I note the claim that the contract ‘was never signed.’

I am satisfied the statutory obligation under the 1994 Act concerns the provision of written terms of employment to an employee and does not depend upon the employee signing the document.

However, I note section 3(4) of the 1994 Act provides as follows:

“(4) A statement furnished by an employer under subsection (1) or (1A) shall be signed and dated by or on behalf of the employer.” [emphasis added] 

I note the contract exhibited by the Respondent is neither signed nor dated. 

Accordingly, I find that the Respondent has not complied with its obligations under section 3(4) of the Terms of Employment (Information) Act, 1994. 

For the reasons stated above I find the complaint of a contravention of the Terms of Employment (Information) Act, 1994 is well-founded and in the circumstances I decide it is just and equitable having regard to all the circumstances to order the Respondent to pay to the Complainant compensation in the amount of €4,615.40  for breach of a statutory right. 

As this award is redress for breach of a statutory right, in accordance with s.192A of the Taxes Consolidation Act 1997, it is not subject to deductions for tax, PRSI or USC.

CA-00068256-001 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. 

CA-00068582-001 complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994

For the reasons stated above I decide the complaint of a contravention of the Terms of Employment (Information) Act, 1994 is well-founded and in the circumstances I decide it is just and equitable having regard to all the circumstances to order the Respondent to pay to the Complainant compensation in the amount of €4,615.40  for breach of a statutory right. 

As this award is redress for breach of a statutory right, in accordance with s.192A of the Taxes Consolidation Act 1997, it is not subject to deductions for tax, PRSI or USC.