Complainant

Respondent

Parties

Aaron  Hogan

Ses Water Management

Representatives

 John M. Spencer Solicitors LLP

Daniel J O'Gorman  Solicitors

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-00069232-001

12/02/2025

The Complainant submitted a complaint that he was constructively dismissed.

The Complainant was employed as a Technician and claimed that he was constructively dismissed following a phone call with the Managing Director who wanted  him to influence another Employee to withdraw that Employees complaint to the WRC. He alleged the Managing Director threatened the Complainants employment would cease by the end of the week if the other Employee did not withdraw his complaint. Prior to the second Hearing the Parties made substantial submissions regarding the admissibility of the transcript of a telephone call on January 7th.between the Complainant and the Managing Director. These submissions were considered by the Adjudicator, who had sight of the transcript in the original submission by the Complainant Representative and he advised the parties he would be relying on the oral evidence supplied to the Hearing as the primary evidence. The second Hearing proceeded on that basis.

The Complainant was employed as a Technician from September 20th 2021. He earned 4,420 Euros Gross per month.

The Complainant was approached by the Managing Director, Michael Lyons on January 7th  2025 to discuss a situation with another work colleague. The Complainant was not involved in the issue with the other work colleague.

On January 8th the Complainant received a phone call from the Managing Director and during the call the Complainant was told that if he did not get his work colleague to withdraw the complaint he had submitted to the WRC that the Complainants employment would be ended. The Complainant found this call to be extremely stressful and went on sick leave immediately. The Complainant recorded the telephone call.

The Complainant found it impossible to return to work and terminated his employment on January 19th 2025 and is claiming constructive dismissal due to the actions of the Respondent.

The Complainant Representative relied on precedent  and quoted case law in Walter Morse V Darrington 1997 (IRLR 488) and Walker v Joshua Wedgewood & Sons Ltd 1978 (IRLR 10%) to support the Complainants case.

The specific details of the Complainant’s claim as outlined in his complaint to the Workplace Relations Commission (“WRC”) dated 12th February 2025 is that a work colleague of his lodged a complaint with the WRC.

It is claimed that the Managing Director, Michael Lyons, approached the Complainant and advised that if he did not get his former colleague to withdraw his complaint that he would be fired. The basis of the constructive dismissal of the Complainant, he says, is that he found the stress and pressure that he was under by Mr. Lyons too much and he went out of work on sick leave.

The time period over which the alleged stress and pressure took place is between the 7th or 8th January 2025.

The evidence which the Complainant intends to adduce in relation to the said stress and pressure that he was put under by Mr. Lyons is set out in his submissions. The Complainant purports that he had a telephone call with Mr. Michael Lyons, on the 8th January 2025 and this alleged 7 minute call confirms the position the Complainant was put in by his employer (on the 7th January 2025.) Extracts of the telephone conversation were transcribed and attached to the Complainant’s submissions.

In essence the available evidence on which the Complainant’s case for constructive dismissal is premised on a telephone call which he says is recorded wherein he says that he was advised that if he did not get his former colleague to withdraw his complaint, then the Complainant would be fired from his employment.

There is no other case made out of the alleged stress and pressure under which the Complainant purports to have been under and the Complainant’s claim is premised on a narrow set of factual circumstance which occurred over a short period between the 7th and 8th January 2025.

Having reference to the contract of employment of the Complainant, neither the Complainant nor his employer waived any rights as regards data protection in said contract and therefore the recording and transcript represented the unlawful collection of data and processing of data.

The Complainant did not have permission to record the alleged phone call, or any phone calls, in the context of his employment. Neither had he permission to disseminate such data to third parties, which it is apparent he has done, given the transcript attached to his Submissions.

Managing Director, Michael Lyons, did not give his consent, express or implied, to any phone conversation with the Complainant being recorded and any such recording was without his knowledge.

The Respondent cited The People (AG) v O’Brien [1965].the People (DPP) v Kenny, the People (DPP) v Mallon and the People (DPP) v JC [2015] to support their case.

The premise of constructive dismissal is underpinned by the necessity of a determination by this Tribunal that the conduct of the employer was such that the employee was or would have been entitled to or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of termination to the employer.

It is submitted that the sole basis on which the WRC could make any determination on construction dismissal in this case is by placing reliance on the recorded telephone call the transcript of which is purported to be attached to the Submissions and evidence of which the Complainant intends to adduce in hearing.

It is submitted that in the absence of the transcript and evidence from the transcript or evidence of such unlawfully obtained data that there could be no basis on which an application for constructive dismissal can be made, and in the circumstances, it is submitted that the Tribunal should dismiss the application.

The Complainant has submitted that he did not enjoy a safe working environment with the Respondent. The Complainant cites the case of Waltonsmorc v. Dorrington [1997] IRLR 488 where the UK E.A.T. held that the employer was in breach of an imployed term in the employee’s contract of employment that the employee may be provided with a working environment which is reasonably suitable for the performance by them of their contractual duties. The Complainant has proffered no evidence of his “working environment” in the context of this claim.

 Without prejudice to the above, the test for constructive dismissal requires an employee to comply with an employer's grievance procedures. The case of Harrold v St. Michael's House is an example thereof. In which case, following 10 days of hearing and evidence, the EAT determined, that the complainant himself had not engaged with the processes available to him to deal with his complaints. The EAT rejected the complainant's claim and placed reliance on the passage in Mary Redmond's Dismissal Law in Ireland , which refers to the ‘imperative duty’ on employees in employee resignations to invoke the grievance procedure.  This ‘imperative duty’ was also relied upon by Ms. Justice Linnane in Tabish Din v Dublin Simon Community, (ex tempore, Circuit Court, December 21, 2007) to reject the appeal of the Complainant, MS Din, that she had been constructively dismissed. The facts are reported in the determination of the EAT, but in essence, Ms. Din alleged that she had been subject to overwork and despite her difficulties to the attention of her employers, nothing was done, and that she was forced to resign because of her health. Linnane J. rejected her appeal, relying on the same passage in Redmond, because MS Din had not invoked the employer's grievance procedure.

The Complainant in the instant case took “sick leave” after the purported offending phone call and thereafter maintained his claim to the WRC. The Complainant made no attempt to involve his employer’s grievance procedure.

The Complainant is seeking compensation for constructive dismissal due to an isolated incident on 7th and/or 8th January 2025. The entirety of the complaint is premised on the recording of a telephone call that took place on 8th January 2025 which purports to confirm the position that the Complainant was put under. The said telephone call and the transcript were obtained in breach of the employer’s rights pursuant to the General Data Protection Regulations (GDPR) and Data Protection Acts, and said evidence is before this Tribunal as unlawfully obtained evidence. It is the employer’s case that this case it is improperly preferred and should be struck out. Notwithstanding the generality of same, on its merits the Complainant does not meet the threshold for constructive dismissal having failed in any way to invoke the employer’s grievance procedure or to engage with his employer whatsoever in respect of the matters alleged.

The applicable law

Unfair Dismissals Act

“Definitions

Section 1

‘dismissal’ means……..

(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,…..

Redress for unfair dismissal.

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances

a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”

Preliminary issue

The Parties contested through preliminary detailed legal written submissions that the transcript of the telephone recording should be/not be allowed into evidence. Having considered the submissions the Adjudicator informed the Parties he would be relying primarily on the oral evidence by Witnesses provided at the Hearing under oath/affirmation. He advised the parties that the primary way any evidence is gathered at a WRC Hearing is through the oral evidence given, under oath or affirmation, by the Witnesses This evidence is subject to and tested under cross examination. This is the primary source of evidence which the Adjudicator has relied upon and the Adjudicator is satisfied to issue his Decision on the basis of the detailed oral evidence (and cross examination of same) provided by the Witnesses.

Witness Evidence

The Complainant gave evidence to the Hearing. He advised his start date of September 2nd 2021 and advised there was a HR Dept in the company but he never had any problems to direct to them. He advised he was on his way home on January 7th 2025 and received a phone call from Michael Lyons who told the Complainant that he (the Complainant) was a friend with a work colleague who had made a complaint to the WRC and he wanted the Complainant to get the work colleague to retract his WRC complaint and if it was not done by Friday that week the Complainant would be let go. The complainant advised he did not discuss the matter and when he got home he thought through the matter and decided there was no way he wanted to be in the situation.

The Complainant advised he did not speak to the Work Colleague and went to work the next day, He rang the MD at lunchtime and informed him he would not be getting involved in the matter. He stated he felt he had to record the call for his own safety. On the phone call he told the MD he was stressed and that the situation was not fair on him. He advised the MD said the situation was not fair on him. He told the MD the situation had nothing to do with him and he should not be trying to use him in the situation. The Complainant advised he phoned in sick on January 9th and went to his GP. He advised the GP of the situation and the GP certified him sick for two weeks due to stress.   

On January 13th the Complainant emailed HR and Ms. KB replied to him this was the first time the issue was brought to her attention and there was no mention of using the grievance procedure or his employment contract. The Complainant then decided to meet a Solicitor and discussed that it was not right he was put in this situation and that it was unprofessional of the MD. The Complainant then gave two weeks notice.

The Complainant advised he had been looking for jobs and was on Social Welfare for 6 weeks at 230 Euros per week. He advised he got a job for three weeks but the job did not match his skill set and was back on Social Welfare on May 2nd and he outlined his payments. He advised he got a job at 550 Euros per week on May 29 but the work dried up at the end of July and he went back on Social Welfare until October 29th.He advised he was still in employment and earning 550 Euros per week. He advised his loss was 290 Euros now per week.

The Complainant was cross examined by the Respondent Representative and asked did he agree there were lots of vacancies in the current environment for a Water Technician and the Complainant agreed. He was asked were there not a lot of companies looking for his skill set and that the sector is small but getting bigger and the Complainant discussed people staying in the one company. The Complainant was asked to confirm the work colleague was no longer employed by the Respondent and that the Complainant was still in contact with the work colleague. The Complainant agreed the work colleague no longer worked for the Respondent and stated that they talk. The Complainant denied he knew that the Work Colleague was bringing a complaint to the WRC and stated he only became aware of it through the call from the MD. The Complainant stated he did not make any contact with the Work Colleague following the call with the MD. It was put to the Complainant that he knew all about the Work Colleagues WRC complaint and that he told the MD he knew; the Complainant denied both suggestions. It was put to the Complainant that the MD wanted the Work Colleague to withdraw his complaint by Friday.

The Complainant was asked why he choose to record the telephone call with the MD and not seek to have a meeting with the MD on the issue. The Complainant stated he was working away that day and was put under pressures that day and could not handle it.

The Complainant was asked about when he went to the GP and he stated he went on the 10th January and got a Cert from the GP and was told to rest and try get some sleep and to come back on the Monday if he was not feeling better. The Complainant got a certificate from the 13th. The Complainant was asked did he revisit the Doctor or be advised to take any medication and he replied no to both. He stated it was a relief he did not have to go to work for two weeks. The Complainant was asked when he met his Solicitor and he advised it was not during the two weeks on sick cert and it was after that on Jan 30th. He confirmed he told his Solicitor about the telephone recording and was asked to document the call. It was put to the Complainant that he had the intention of suing the Respondent when he recorded the call and he denied this suggestion. It was put to the Complainant that he had made up his mind how he was going to approach the issue between the 7th and 8th an that it was a chance for him to sue the Respondent. The Complainant denied he had any plan. The Complainant confirmed he decided to resign on February 10th and that he was aware of the company procedure to resolve differences and he advised he had emailed HR. The Complainant confirmed that at no stage did he lodge a grievance about the issue.  

It was put to the Complainant that he sought jobs below his skills level so he could optimise his claim and there were plenty of jobs in water or similar industries with use for his skills. The Complainant stated the water jobs were based in Dublin and too far from the Complainants home location.  It was put to the Complainant that was it a coincidence that he went back into the Industry just straight after his colleague got his WRC Decision. The Complainant replied it was a coincidence. It was put to the Complainant that he gave no opportunity to the Company to walk back from the situation and that he had set out his plans.

The Complainant was asked had he communications with the Work Colleague since February 2025 and he stated yes he had as he was a friend. The Complainant was asked that it was only when the Work Colleague got his WRC Decision that he went back into the water industry and the Complainant stated he did not know what the Work Colleagues WRC Decision was.

On redirect the Complainant confirmed he had emailed HR re the issue and he felt the company were not willing to engage with him on the issue and they took his company van away from him while he was out sick.

Mr. Michael Lyons, Managing Director gave evidence to the Hearing that he confronted the Complainant about rumours he had been hearing that the Complainant was stating the business was going bust and that he had spread personal rumours about the MD. He stated he felt the Complainant was being led by the Work Colleague and that the rumours had to stop and he was fed up with the Work Colleague feeding the Complainant with rumours and accusations. He stated the Complainant had not made any complaints and his Company Van was taken for a from him while out sick for work purpose only. He gave evidence regarding the 7th of January and stated there was a build up of frustrations over 8 weeks and the contact with the Complainant had been initiated by the MD. He advised of the rumours that the Work Colleague had been spreading between October and Christmas and alleging the Company was in trouble. He advised of personal accusations concerning the MD by the Work Colleague (the detail of these accusations is not core to this Decision). Mr. Lyons confirmed that armed with all the necessary information he rang the Complainant. He advised he wanted to talk to the Complainant and ask was it him that was spreading the rumours or was someone else putting things into his head. Mr. Lyons rang  the Complainant and told him he had received a letter from the WRC concerning the Work Colleague and that he was not happy with the situation. Mr. Lyons told the Complainant he was being used by the Work Colleague to spread stories and wanted him to talk to the Work Colleague to move on from the company. Mr. Lyons stated that the second phone call was set up and recorded without his knowledge by the Complainant and they discussed nothing about the primary issues. Mr. Lyons stated he never used the words that the Complainant “would be sacked by Friday” and that he was always caring for staff. He advised he got the sick cert and then the resignation came in. He advised when the Complainant commenced employment he got a Handbook and procedures on how to deal with grievances. He advised the Van was required for a service and may have been used by someone else as required by the business. .Mr. Lyons advised the Complainant did not reach out to try resolve the situation and that the Complainant did not send his resignation email to Mr. Lyons. He said in retrospect the engagement with the Complainant was not his finest moment.

On cross examination Mr. Lyons confirmed there was no problem with the Complainants work and there was plenty of jobs in the area. He also confirmed he called the Complainant on January 7th and discussed that there were rumours being spread. He advised there was no reference to the alleged issues the Complainant resigned of because in his resignation email. Mr. Lyons agreed he was irate and angry on the call as he was being put in a position he did not agree with. With regard to Mr. Lyons stating the Complainant was handed the Company handbook and Grievance procedure at Induction he was informed the Complainant disagreed with this view. Mr. Lyons advised the Complainant was never sacked on the Friday and would never have been sacked.

Findings

The matter for the Adjudicator to consider is whether the circumstances as described by the Complainant warranted his resignation in accordance with the standard set out in s.1 of the Act, as quoted above.

There are two tests for determining if a constructive dismissal has occurred. The first test is the ‘Contract Test’. In considering this test the Court has to consider if a term of an employee’s contract was breached by the actions of the employer such as to make it reasonable for an employee to determine that the contract had been terminated.

The second test is the ‘Reasonableness Test’, in which there is a burden of proof on a Complainant to establish that the behaviour of an employer was so unreasonable that it was reasonable for the employee to terminate their contract of employment.

It is on the latter test that the Adjudicator has focused in assessing the circumstances of the instant case as the Complainant alleged his contract was going to be terminated by the Respondent within days.

As the Respondent pointed out in their submission, it is well established in law that in a claim by a Complainant, which is assessed under the Reasonableness Test , it is usually necessary for the Complainant to display that they have exhausted all internal procedures for dealing with complaints before resigning from their employment. As the Employment Appeals Tribunal put it in Travers v MBNA Limited (UD720/2006)‘it is incumbent for an Appellant to utilise all internal remedies’, something that was set out clearly in the earlier case of Conway v. Ulster Bank (UD474/1981)

Similarly, a line of authorities has established that an employee who seeks to rely upon the Act must demonstrate that he also behaved reasonably in concluding that he is entitled to terminate his employment. In particular, the authorities make clear that an employee must seek to utilise the available grievance procedures in the employment before terminating their employment or else demonstrate why such a course of action would not have been reasonable or practicable. In the instant case the Complainant had to option of raising his grievance with HR and given his grievance was with the Managing Director it can be assumed he had difficulty in pursuing that route.

In Beatty v Bayside Supermarkets UD 142/1987for example, the Employment Appeals Tribunal held:-

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the Complainant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the Complainant’s resignation he was not constructively dismissed”.

Ordinarily, therefore, an employee, such as in the instant case, who has not exhausted all internal procedures is unlikely to find acceptance that they have been constructively dismissed. However, there are features of this case that require consideration by the Adjudicator.

The Adjudicator is clear that the behaviour of the Managing Director in involving the Complainant in the other Employees issue with the Respondent was unreasonable behaviour and that the Complainant was put in a very difficult and untenable position with regard to his continued employment.  Based on the evidence given at the Hearing the Complainants description of events is credible and it was reasonable for the Complainant to resign from his employment. The Adjudicator determines for these reasons that this is a case of constructive dismissal. However, given the Complainant did not initiate a formal grievance arising from his discussion with the Managing Director and made no mention of the issue in his resignation email, the Complainant has to accept some responsibility for the situation that arose with the ending of his employment and his compensation has to be reduced by an appropriate amount. While the Respondent attempted to assert that the Complainant “contrived” the situation to pursue a claim there was no evidence to support this. Also there was no credible evidence the Complainant deliberately sought lesser paid work to support his complaint.  The Complainant submitted his total loss for a two year period will be 21,170 Euros.  I determine that the appropriate reduction for not initiating the Grievance Procedure and allowing the Respondent to deal with what transpired from the telephone calls is 50% and I award the Complainant 10,585 Euros compensation for breach of his statutory employment rights.

I find the Complainant was unfairly dismissed and award him 10,585 Euros compensation..

Unfair Dismissal