Complainant

Respondent

Parties

Noelle  Lowney

Symmetry Medical Ireland Ltd t/a Tecomet

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Ed Shanahan BL instructed by Dylan Green Solicitors and Associates

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065614-001

26/08/2024

The Complainant, a Financial Controller, gave evidence on Affirmation. On the second date , Dr Sanchez Capocino Vicens, Psychiatrist, gave evidence on affirmation. It was her complaint that she was constructively dismissed from her employment.

Mr Ronald Reimer VP, Global Operations Controller gave evidence on Affirmation as did Andrew Dalton, HR Director. The Respondent denied the complaint in full.

The name of the Respondent was amended at the outset of the hearing.

Submissions and documentary evidence were received and exchanged between the parties.  

Adjournment Application

On the first hearing date, the Complainant sought an adjournment where the Complainant’s Counsel was of the view she was not medically fit to proceed. No medical evidence or a medical certificate was tendered by the Complainant. He further stated that the hearing was the first opportunity to meet with her and did not have updated instructions. The Respondent was ready to proceed.

In order to progress matters, evidence was heard on the first day on the Complainant’s financial loss only with the Respondent been afforded an opportunity to cross examine on this matter only. On the second hearing date, the matter proceeded with both parties given a full opportunity to present their evidence and cross examine.

Anonymisation Application

The parties were invited to make submissions on the anonymisation of the decision. It was the Complainant’s submission that she did not believe her name should be made public where she had agreed to repay the monies in full to the Respondent. 

The Respondent stated that it had no difficulty with the parties’ details being made public.

The default position under the Workplace Relations (Miscellaneous Provisions) Act 2021 is that hearings are conducted in public. An Adjudication Officer retains discretion to hold a hearing in private and to anonymise the resulting decision where special circumstances exist. The WRC has issued guidance identifying a non‑exhaustive list of such circumstances. The Complainant’s submission that she may suffer reputational damage arising from the allegations, particularly as she has not repaid the monies in question, does not fall within any of the identified criteria, nor does reputational harm of this nature constitute a special circumstance warranting anonymisation. In reaching this conclusion, I am also mindful that the Complainant has initiated separate personal injuries proceedings, which will be heard in public. In these circumstances, there is no sufficient basis to depart from the statutory default, and I therefore decline to anonymise the parties’ names in this decision.

It was the Complainant’s evidence that she commenced employment as a Financial Controller with the Respondent, on 12 March 2015 and entered into a renewed employment contract on 3 January 2017 after her initial two‑year period of service. She earned €92,000 per year and submitted she worked 100 hours a week.

Her role was a senior role involving significant financial responsibility, and she maintained that she was regarded within the organisation as a dedicated, diligent and trusted employee.

She stated that throughout her employment she performed her duties to the highest professional standard and that no allegation of misconduct or poor performance was ever raised against her.

It was the Complainant’s evidence that her resignation was not voluntary but the result of ongoing and serious breaches by the Respondent of its statutory and contractual obligations.

It was the Complainant’s evidence that she was routinely required to work from 8 a.m. to midnight, seven days a week, far in excess of her contractual hours, and that despite repeatedly raising concerns, the Respondent failed to address the unlawful and unsustainable workload.

She gave evidence that her workload became unmanageable due to the lack of adequately trained support staff, as one assistant had left and the remaining assistant was unqualified, while the U.S. based parent company exerted significant pressure without regard for the excessive hours she was working.

It was her evidence that she repeatedly notified management of serious health symptoms caused by excessive work‑related stress, yet no effective action was taken to alleviate her workload or support her, amounting to a breach of the employer’s duty of care. She further stated that the extreme working conditions resulted in significant health deterioration, including high blood pressure, fainting, insomnia and weight loss, for which she obtained medical treatment

It was the Complainant’s evidence that allegations of misuse of the company credit card originated from an unverified and informal report made by her subordinate and were escalated in breach of Respondent’s own disciplinary procedures without any prior internal inquiry or opportunity for her to review or respond to the claims. It was further her evidence that the subsequent external investigation was unfair, procedurally flawed, and motivated by hostility, as denied the right to be accompanied by a solicitor, not informed of the evidence against her, and subjected to unfounded accusations intended to damage her reputation and force her out of employment. All of which demonstrated an absence of fair process.

It was her evidence that, taken together, these factors left her with no reasonable alternative but to resign. She ultimately resigned from her position on 10 August 2024, after deciding that she could not participate in any internal interview. In her view, the Respondent’s conduct amounted to a repudiation of the employment relationship, compelling her resignation.

In terms of her mitigation of loss, it was the Complainant’s evidence that she was deemed medically unfit to work from the date of her resignation. She stated she was completely burnt out from her role and did not have the mental capacity to go for interviews with perspective employers. She obtained a new role on or around 12 May 2025 and earned a gross annual salary of €71,000. Her new employer did not offer a pension contribution. 

Dr. Sanchez gave evidence that he was not the Complainant’s treating doctor, but he did speak with her prior to the hearing. He stated that her symptoms began three years ago and included poor judgment. In his opinion, the Complainant had a major depressive disorder that had deteriorated over the previous six months.

Dr. Sanchez acknowledged that he did not know how long it had been since the Complainant resigned from her position. He further accepted that he was unaware she had since obtained new employment.

It was submitted there had been a breach of the Complainant’s contract of employment by the Respondent which led to her complaint of contractive dismissal.

It was also submitted that the medical evidence presented demonstrated that the Complainant was under a depressive illness which impaired her judgment.

The Complainant relied upon Western Excavating (ECC) Ltd v Sharp [1978] QB 761, Berber v Dunnes Stores [2009] IESC 10, Conway v Ulster Bank Ltd (UD474/1981), Travers v MBNA Ireland Ltd (UD720/2006) and Fitzsimons v Mount Carmel Hospital (UD855/2007).  The Complainant also relied on a number of Workplace Relations Commission decisions but solely provided the ADJ numbers; ADJ-00034567 (2024), ADJ-00045678 (2025), ADJ-00056789 (2025), ADJ-00067890 (2025) and ADJ-00078901 (2025).

Mr. Reimer, VP, Global Operations Controller

Mr. Reimer, VP, Global Operations Controller, gave evidence that he was a senior manager with oversight of the Complainant, gave evidence that he was asked to investigate concerns regarding misuse of the company credit card at the Cork site. He began by carrying out preliminary work remotely and later visited the site on 10 June 2024. Prior to his visit, he requested financial statements and credit card records from the Complainant, but these were not provided in full. On site, he was given receipts but no official statements. When statements were later provided, they were in Excel format rather than the original statements, and he identified anomalies in formatting and content.

On review, he found transactions with retailers such as Brown Thomas, Scarlett, Pamela Scott, and Camera World, which did not appear to be business related. The initial estimate of irregular expenditure was €35,000, which ultimately rose to €152,000 over the course of the investigation, covering a period from September 2018 to the Complainant’s suspension in 2024.

Mr. Reimer confirmed that he issued the suspension letter to the Complainant. She was placed on paid suspension and did not verbally respond when notified. He stated that he had no role in determining the outcome of the subsequent investigation, conducted by Ms. Pettit, and only provided factual information.

In relation to working hours, Mr. Reimer accepted that the Complainant reported significant demands in her evidence, but he did not agree with her characterisation. He stated that the demands on her were consistent with those of other sites and that he had not required her to work 15-hour days or weekends. He also stated that the Complainant had not raised such concerns directly with him. While some rework was occasionally required, he had not observed a significant decline in her performance during the period he had oversight.

 Mr. Reimer was asked by the Complainant’s Counsel whether he was aware that the Complainant was significantly overworked. He stated that this had never been raised with him during regular one-to-one meetings and that he did not believe her workload to be excessive, noting she had two assistants and that the Cork site was appropriately staffed. He said the only consideration for additional staff arose when an employee was on medical leave.

It was put to him that the Complainant was frequently required to take on additional duties. Mr. Reimer stated that while certain functions, such as the role of Financial Controller, could require additional hours at times to meet business demands, the Complainant’s contractual hours remained the same and no additional financial compensation was provided for such duties. He denied being aware of any medical issues, including high blood pressure or fainting spells, reported by the Complainant or others on her behalf.

Mr. Reimer accepted that the Complainant may have worked long hours from time to time but stated that the expectations were that employees’ hours aligned with their contracts and that flexibility was sometimes required to meet business needs.

On redirect, Mr. Reimer confirmed that a meeting took place in April 2024 with the Complainant and the HR Manager to address concerns regarding clocking-in and annual leave. He stated that he abided by the terms of the Complainant’s contract and did not impose any onerous or additional responsibilities on her beyond the scope of her role.

Mr Dalton, HR Director

The HR Director confirmed that the Complainant was invited to attend a disciplinary hearing scheduled for 7 August in Midleton, Co. Cork. It was stated that there was no predetermined outcome for the hearing and that the Director had reviewed the investigation report, comprising approximately 335 pages, in preparation for the meeting.

The HR Director explained that when the Complainant resigned, she was invited to reconsider her resignation in order to allow her the opportunity to provide evidence or contribute to the process. The Director noted that they regularly visited the Cork site, introduced themselves to employees, and made efforts to be approachable.

In relation to absence, the HR Director confirmed that the Complainant had no sickness absence from 2015 up to the date of suspension. After the suspension, the Complainant submitted medical certificates: one week in early July citing high blood pressure, another covering the following week with the same reason, and a third up to 1 August with no specified reason. No further medical certification was received after that date. The Complainant was invited to attend the disciplinary hearing on 2 August, after the expiry of the final certificate.

The HR Director added that a formal statement had been made to An Garda Síochána concerning the theft of company property valued at €152,000.

The witness was cross examined. The HR Director described his interactions at the Cork facility as limited to occasional visits and informal meetings with the leadership team over lunch. The HR Director agreed that such interactions were generally low-key in nature.

Questions were put to the HR Director as to the role of the HR department within the organisation, particularly regarding the welfare, health, and identification of potential red-flag issues concerning employees. It was his evidence that he expected all HR managers to be proactive in these matters. The Director confirmed that they held weekly calls with the HR Manager at the Cork (Tech Met) site, as they did with all HR managers, to review a range of key issues.

Upon inquiry, the HR Director confirmed no steps in the investigation process took place during the period the Complainant was on certified leave.

He also confirmed that he sent two emails to the Complainant requesting she re-consider her resignation but did not receive a reply after 9 August 2024 email.

Respondent’s Submission

The Respondent argued that the claim must fail as the Complainant was placed on paid suspension, did not engage with the external investigation, and subsequently resigned. It was submitted that no grievance had been raised, her contractual terms were fully observed, and the disciplinary process complied with statutory requirements. The Complainant did not avail of the right to representation and was offered the opportunity to reconsider her resignation. Relying on case law including Conway v Ulster Bank (UD474/1981) and Western Excavating v Sharp [ECC] v Sharp (1978) IRL 332, VAT Operations Manager v Manufacturer of building and construction products (ADJ-00022491), McCormack v Dunnes Stores (UD 1421/2008), Travers v MBNA Ireland Limited, UD720/2006 and Fitzsimons v Mount Carmel Hospital, UD855/2007.

The Respondent maintained that the high bar for constructive dismissal had not been met and that the Complainant was fully supported throughout her employment.

The test for constructive dismissal is set out in Section 1 of the Unfair Dismissals Act 1969, with the burden of proof resting on the employee to establish that either, because of the conduct of the employer, the employee was entitled to terminate their contract, or that it was reasonable to do so.

In complaints of constructive dismissal, the burden of proof lies with the Complainant, who must satisfy two key tests: the contract test (whether the employer breached a fundamental term of the contract) and the test of reasonableness (whether the employer’s conduct was so unreasonable that resignation was the only option).

In this case, the Complainant made an allegation of a contractual breach.

Consequently, the test for breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign.  It is now generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee.

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 the English case of Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 Denning J stated:

“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 of more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

Conway v Ulster Bank Limited UDA 474/1981, underscores the importance of exhausting internal grievance procedures before resorting to resignation and subsequent legal action in employment disputes.

The EAT held in Zabiello v Ashbrook Facility Management Ltd. UD1106/2008:

“For a claim for constructive dismissal to succeed the claimant needs to satisfy the Tribunal that her working conditions were such that she had no choice but to resign. The Tribunal is satisfied that the claimant had difficulties with her line manager. However, for a period of six months she did not attempt to resolve the issue.”

Similarly, inTravers v MBNA Ireland Ltd UD720/2006the EAT held:

‘We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.’

The Complainant contended that unverified allegations were improperly escalated in breach of disciplinary procedures and followed by a hostile, procedurally unfair investigation that denied her basic rights, evidencing a complete lack of fair process.

Considering the facts, I find the following: -

The Complainant’s contract provides for a disciplinary procedure, with a detailed policy set out in the employee handbook. While the contract also refers to a grievance procedure, the handbook relied upon by both parties does not contain any such detailed grievance procedure. However, the Complainant appears to have been aware of the procedure, stating: “I did not go through that process. I did not think it would be worthwhile doing it. I wasn’t feeling well.” It is further noted that she states she received the grievance procedure in her Complaint Form.

The contracted hours of work were 8:00 a.m. to 5:00 p.m., Monday to Friday, with statutory annual leave and public holidays expressly referenced, and further detail provided in the accompanying handbook. Along with regular meetings with Mr Reiner, a meeting took place with Mr. Reiner, HR and the Complainant in April 2024 regarding the Complainant’s annual leave and clocking‑in practices. It is noteworthy that despite this dedicated meeting on her hours of work, the Complainant did not raise any issue relating to excessive working hours. This is particularly relevant given her evidence that her health deteriorated the following month, in May 2024. However, based on the HR Director’s evidence, the Complainant had no sickness absence from 2015 until the date of her suspension, with the first medical certificate citing high blood pressure being submitted only after the suspension. The evidence of Dr Sanchez did not shed any light on this where there is no evidence the Respondent employer was on notice of any medical diagnosis with the Complainant until the second hearing date. 

The first indication that the Complainant raised concerns regarding her working hours or work‑related stress appears in the Complaint Form received on 26 August 2024 and during the subsequent hearing dates. No document or evidence was presented to demonstrate that the Complainant raised a grievance with her employer at any earlier point.

An employer is entitled to investigate allegations of a disciplinary nature, provided this is undertaken in accordance with fair procedures and its own internal processes. There is nothing to suggest that the Complainant was not afforded fair procedures, even at the preliminary investigative stage. The mere commencement of a workplace investigation does not, of itself, constitute reasonable grounds to ground a complaint of constructive dismissal.

I am satisfied from the totality of the evidence adduced that the Complainant in this case has failed to establish that there was a fundamental breach of contract which would meet the requirements of ‘the contract test’. For this reason, I find the Complainant was not unfairly dismissed.

In conclusion, I find the Complainant was not unfairly dismissed from her employment with the Respondent.

Constructive Dismissal