Complainant

Respondent

 Parties

Anonymised Technican

Anonymised Design Contractor

Representatives

  self

Des Ryan BL instructed by Anne Foley Solicitor

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062651-001

06/04/2024

The Complainant sent in his complaint form to the Commission on the 6th of April 2025.

The Complainant has provided a summary of his reasons for leaving based on what he believed to be a push by the owner of the business to make him leave. The Complainant had worked with the company for more than 8 years. He has a child that needs a high level of care and during his employment he was facilitated by his employer with approval to work remotely at home. The Complainant was out sick arising from Post Traumatic Stress that was directly linked to a past trauma, the Paris Terrorist attacks that occurred some years previously, at which he was present and was in fear of his life. The trauma resurfaced and he was on certified leave for about 5 months when he asked his manager about returning to work. He initially was told there was no work for him and had to wait for a week before he returned to the office for paid work. He had meetings with the owner of the business about payment for that week and it is alleged that he was told that he had been looked after for years and needed to think about his position. He was also told that his request to work from home could no longer be facilitated and that he was not as productive as others who worked in the office. He believes that others were still being facilitated to work at home; however, he was being put under pressure and specifically was asked to think about his position

On the written note attached to a manual complaint form he stated that he was asked to leave on the 26th of March 2024 rather than on the 8th of April 2024.

These reasons have forced me to resign from redacted. I wish to finish with redactted on Friday, April 5th. I have been a loyal employee for the last 8 years and wish all of the team great success going forward. I would be grateful if you could forward a reference at your earliest convenience. It was a pleasure to work with you.

Following the email to my supervisor and while working my notice period, the supervisor told Mr redacted that I was leaving. On 26th March the supervisor and boss asked me into the meeting room and mentioned he had been informed I was leaving, I confirmed. Mr redacted  said I should leave that day and would be paid the two week notice period. I found this intimidating and belittling, I was not given a chance to say goodbye to work colleges that I have worked with for 8 years. Mr redacted actions gave the impression I was asked to leave and a mark on my reputation. I finished working there on 26th March. I was put in a profoundly difficult position by the actions of Mr redacted, I feared for my job security and felt mentally and morally distressed by his intimidating behaviour. I had no other choice but to seek alternative employment. I am starting a new job on 8th April 2024.

The Complainant has not incurred financial loss arising from leaving his position and in fact has increased his overall remuneration.

The Complainant has provided a summary of his reasons for leaving based on what he believed to be a push by the owner of the business to make him leave. The Complainant had worked with the company for more than 8 years. He has a child that needs a high level of care and during his employment he was facilitated to work at home. The Complainant was out sick arising from Post Traumatic Stress that was directly linked to the Paris Terrorist attacks that he personally witnessed and was in fear of his life. That trauma experienced many years previously resurfaced.  He was on certified leave for about 5 months when he asked to meet his manager about returning to work. He initially was told there was no work for him and had to wait for a week before he returned to the office for paid work. He had meetings with the owner of the business about payment for that week and it is alleged that he was told that he had been looked after for years and needed to think about his position. He was also told that his request to work from home could no longer be facilitated and that he was not as productive as others who worked in the office. He believes that others were still being facilitated to work at home; however, he was being put under pressure and specifically was asked to think about his position.

The Respondent stated that due to the nature of the project work on their books they could no longer facilitate the Complainant to work from home. They could facilitate flexible hours of work but not remote working.

As regards the Complainant’s assertion in the email dated 22 March 2024 that he was forced to resign, the Respondent denies that the Complainant was forced to resign. The Respondent submits that it continued to be flexible with the Complainant and that his job was available to him in the office as required by his Contract. At no stage was the Complainant told that the flexibility required to facilitate his family circumstances would cease.

As regards the Complainant’s assertion in the email dated 22 March 2024 that another member of staff was working from home, the Respondent submits that the employee in question was facilitated to work from home for a single working day and that this was not an ongoing arrangement.

 As regards the Complainant’s assertion in the email dated 22 March 2024 that he was not afforded an opportunity to say goodbye to colleagues, the Respondent submits that paying out an employee’s 2-week notice is standard practice which is reflected in the contract. Further, the Complainant was not asked to leave immediately and therefore had every opportunity to say goodbye to colleagues.

 The Respondent denies that at any stage was the Complainant intimidated and consequently forced to resign. The Respondent submits that at all times the Complainant was simply being asked to work in accordance with his contract and that he was afforded substantial accommodation for his family circumstances and personal illness.

On 19 March 2024, the Complainant received his payslip for the preceding week during which he had not worked. The payslip indicated that the Complainant would be paid for one day in lieu of one day of annual leave which the Complainant was entitled to. This was the only day of annual leave which the Complainant had accrued at that time. The Complainant indicated to his supervisor that if he would not be able to use annual leave not yet accrued in lieu of pay then he would no longer wish to work for the Respondent Company

The test set out in Berber provide a useful framework to assess if the conduct complained of meets the test to establish a constructive dismissal. While Berber related to a wrongful dismissal and not to a statutory remedy, it is a helpful framework when dismissal is in dispute arising from alleged repudiation of the contract.

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 4 principles are also relevant in this case:

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 v Dunnes Stores [2009] IESC 10 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 his 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? The statutory test also provides for a reasonableness test even where no contract provision has been breached such that it would repudiate the contract.

On the facts this employee was facilitated for many years based on challenging family and personal circumstances. On the evidence the employer stated that this level of accommodation could no longer be facilitated. The employer knew of the difficult circumstances of the employee.

A distinction needs to be drawn between recognising difficult personal circumstances and the contractual obligation to maintain a high level of work flexibility to meet that personal need. Business needs are the primary needs to be met when employed subject to reasonable accommodation based on the requirements of the business to meet its commitments and then, if possible, by exception the needs of the employee where they face very challenging circumstances. On the facts this business had done that for several years. However, the nature of the project work had changed, and it believed that its requirements meant that the Complainant should work on site within a team and that need applied to all employees. The employee could still be facilitated but not as before.

The Complainant carries the burden where dismissal is in dispute to prove that he was dismissed arising from a fundamental breach in a contract of employment and/or due to the unreasonable conduct of the employer. The question arises has a fundamental breach of any term of employment been proven. The conduct of the employer is questioned and that the language used about considering his position and the flexibility he had been given, the withdrawal of remote working, the failure to let the Complainant return to work based on his fit to return date all point to a push to get him to leave.

However, while this interaction between the owner of the business and this employee was difficult, what must be looked at is the entire factual matrix. This shows an employer who had been very flexible. That flexibility may have been viewed to have been unappreciated by the employee when he looked for payment for a week when there was no work for him. The employee had been out of work for several months and the bespoke nature of work in this consulting firm would mean that work would have to be properly assigned. Layoff occurs when a company has no work for an employee. The contract does provide for layoff, and the place of work is clearly detailed to be the office.

A Complainant must meet what is referred to as the mirror test as referenced in Meenan, Employment Law 2nd Ed. 2023 (Round Hall):

20-82

The company referred the tribunal to the cases of Conway v Ulster Bank136 and Beatty v Bayside Supermarket.137 Both these cases clearly established that, where there is a union/management agreement containing a grievance procedure, such a procedure should be substantially followed by employees when they consider that there is a breach of contract by their employer. In Harrold v St Michael’s House,138 the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to resolve his grievance. The duty is an imperative in employees’ resignations.”

The question arises should the Complainant have initiated the grievance procedure prior to resigning? That did not occur as the complaint would be made against the owner of the business.

The facts do not show a repudiation of a  fundamental contract term.

The facts do not show a pattern of behaviour that was so unreasonable the employee should not have to put up with. The employer had shown significant flexibility for many years. The recent interactions while difficult could not be described as egregious and or so unreasonable that an employee should not have to put up with it. They were difficult conversations and could have been insensitive. However, the threshold to establish a reasonable cause to leave the employment based on a constructive dismissal has not been met on the facts.

It may be viewed that the sudden end of remote working should have been better flagged; however, that is more about communication. The test to substantiate a constructive dismissal is a high one. The facts in this case do not meet that threshold. For the reasons as detailed I determine that the employment ended by reason of resignation. The Complainant was not unfairly dismissed, and the complaint is not well founded.

The facts do not show a repudiation of a fundamental  contract term.

The facts do not show a pattern of behaviour that was so unreasonable the employee should not have to put up with it.

It may be viewed that the sudden end of remote working should have been better flagged; however, that is more about communication. The test to substantiate a constructive dismissal is a high one. The facts in this case do not meet that threshold. For the reasons as detailed I determine that the employment ended by reason of resignation. The Complainant was not unfairly dismissed, and the complaint is not well founded.

Constructive Dismissal