Complainant

Respondent

Parties

Rebecca O’Hara

Liju V. Cerise Feather Limited

Representatives

Self-Represented

Ms. Annalee Brazel, Peninsula Business Services Ireland

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-00068122-001

16/12/2024

The Complainant commenced Employment on 7th October 2021. At all relevant times the Complainant’s role was described as that of “deli assistant”. The Complainant was a permanent, part- time member of staff, in receipt of an average weekly payment of €204.80.  While the nature of the termination of employment is in dispute between the parties, it is common case that the employment ended on 14th December 2023. 

On 16th December 2023, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent induced her to resign her employment following an unfounded set of allegations being levelled against her. By response, the Respondent submitted that the Complainant resigned her employment of her own free will in an effort to avoid an internal investigation.

A hearing in relation to this matter was convened for, and finalised on, 8th September 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaint, while a manager of the Respondent gave evidence in defence. All evidence was given under oath or examination and was opened to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings

In evidence, the Complainant stated that she commenced employment with the Respondent on 7th October 2021. The Complainant submitted that she was a student worker and was engaged at all times as a deli assistant. The Complainant stated that throughout her three years of service, encompassing both full time and part time capacities with the Respondent, she never received any form of verbal or written warning. She maintained that she always performed her duties to the best of her ability, was regularly allocated shifts, and frequently trained new staff. She stated that her employment progressed well and without major incident until 14th December 2024.

On that date, the Complainant commenced her shift at 6:00 a.m. Approximately two to four hours into the shift, the deputy manager of the Respondent informed her that she was required to produce extra bakery items. The Complainant observed that this was unusual, as baking is typically conducted on the weekend and the Complainant was scheduled to work the forthcoming Sunday. At approximately 2.00p.m., the Complainant was requested to attend a meeting with the general manager of the premises. The Complainant was not provided with any prior notice of the meeting nor informed of the nature of the discussion. Upon entering the office, she was instructed to sit down and was told that the interaction was merely a friendly conversation.

At the outset of the meeting, the Complainant was asked whether there was anything she wished to disclose to the general manager, to which she responded in the negative. At that point, she was informed of the allegation that she was stealing products from the shop. The Complainant responded by stating that she never intentionally took any products, but rather would pay the balance for goods taken for lunch, either in cash at the till or through deductions from her wages. The Complainant stated that such an accusation, delivered during what was proposed to be an informal chat, left her feeling intimidated and uncertain of the nature of the meeting in question.

Regarding the allegation itself, the Complainant stated that there was a verbal mutual agreement amongst staff that they could pay for lunch at some point during the week. While this was not a written agreement, the Complainant noted that it was a practice adopted by most staff members across all locations. She stated that most employees would, at times, settle their purchases later, usually when they were paid. The Complainant also stated that if staff members were not permitted to serve themselves at the tills, different staff could sometimes apply discounts, depending on who was operating the till.

The Respondent’s general manager stated that the monetary value of the items in question was too high. He then stated that the Complainant had two options. The first option was that he would inform the Gardaí and a criminal investigation into the theft would commence. He stated that this would then be converted into disciplinary procedures, which he claimed would not result in the Complainant’s favour, and that the matter would be placed on the Complainant’s permanent work record for future employers to access, noting that the Respondent would not provide a positive reference under such circumstances.

The second option proposed by the general manager was that the Complainant resign from her position with immediate effect. The general manager proposed that the Complainant draft a letter of resignation there and then, stating that she had found a better job offer or something more suited to her. He stated that she would be permitted to leave work without further consequence and could potentially return to work in a year or two. Out of fear, the Complainant elected to pursue the latter option. The Complainant was instructed exactly what to write in the letter of resignation. Once the letter had been completed and signed, the Complainant was permitted to leave. The general manager stated that he would not inform other members of staff as to why the Complainant had resigned.

The Complainant alleged that the Respondent’s actions, specifically the behaviour of the general manager in accusing her of theft, pressuring her to resign immediately, failing to follow proper disciplinary procedures and denying the opportunity for representation, created an environment of extreme duress. While the Complainant accepted that she resigned, she stated that her resignation was made in a state of panic to avoid further humiliation, distress, and punishment. The Complainant stated that she felt cornered with no viable alternative. Furthermore, the Complainant stated that the general manager at no point offered information regarding her rights nor, at any stage, attempted to prevent the resignation.

Following these events, the present complaint was lodged on 15th December 2024. Two days later, the Respondent sent an email and two letters by registered post, stating that the Complainant’s resignation may have been made in the heat of the moment and asking whether she wished to reconsider. At this point, the present complaint had been referred, and the Complainant understood her employment be at an end.

In summary, the Complainant submitted that she was compelled to resign her employment under duress and that her dismissal should be deemed unfair for the purposes of the Act.

In evidence, the general manager of the Respondent accepted that the Complainant commenced employment on 7th October 2021 and was engaged as a deli assistant. It was accepted that the Complainant’s employment was without major incident until the end of 2024, and the Complainant was generally regarded as a good and reliable employee.

On 25th October 2024, the general manager stated that he witnessed an incident of potential theft involving the Complainant. In this regard, the general manager stated that he observed the Complainant taking an item from the shop for her own consumption during a lunch break without payment. Following this observation, the general manager commenced an investigation and reviewed CCTV footage of the Complainant during her lunch breaks. As a result of these inquiries, the general manager observed that the Complainant frequently took items from the store for her own consumption during lunch breaks without paying at the till.

Following this investigation, the general manager invited the Complainant to a meeting in his office on 14th December 2024. During this meeting, the general manager stated that he was aware that the Complainant had not paid for certain items and had taken products from the shop for her own consumption on several occasions. In this regard, the Respondent stated that they had not yet initiated a formal investigation process and simply wished to inform the Complainant of the subsequent steps at that point. They maintained that this discussion was not part of the formal investigation and that a formal investigation meeting had not yet occurred.

At this juncture, the general manager informed the Complainant of the Respondent’s procedures regarding theft. He stated that one such procedure involved informing the authorities of the allegations of theft so they might conduct their own investigation. The Respondent submitted that they possess a right to report potential theft, and that informing an employee should not be perceived as a threat, but merely as notice of proposed actions. In evidence, the general manager stated that at this point the Complainant decided to resign from her position rather than proceed with any official process. He stated that the Complainant drafted her letter of resignation at that moment without further prompting and elected to resign rather than engage with the process.

The general manager stated that theft is considered gross misconduct by the Respondent. He stated that upon observing suspicious activity, he conducted a full investigation of the relevant CCTV footage and till receipts, which demonstrated that the Complainant had been taking items without payment. Regarding the Complainant’s submission concerning an established custom or practice, the general manager stated that no such practice existed in the shop and that company policy required all items to be paid for immediately upon purchase.

In the days following the Complainant’s resignation, the general manager wrote to her in an effort to have her reconsider her resignation and engage in the grievance procedure if she so wished. The Complainant elected not to avail of this offer. He submitted that he was unaware of the present complaint at the time of issuing the correspondence, as it had not yet been communicated to him. Rather, he wished to ensure that the Complainant’s resignation was not made in the heat of the moment but was issued following careful consideration.

The Respondent submitted that the Complainant elected to resign her employment rather than engage in an investigative process regarding certain allegations. While this was considered disappointing, the Respondent submitted it was the Complainant’s own prerogative and that, once she had resigned, they could not unilaterally rescind the resignation. To ensure there was no duress, the Respondent wrote to the Complainant two days following her resignation to allow her to confirm her decision. The Complainant elected not to respond. The Respondent submitted that the Complainant has not demonstrated that her dismissal was unlawful for the purposes of the Act and requested that the complaint be found to be not well-founded.

Regarding the present case, the Complainant has submitted that she was prompted to resign her employment with the Respondent under duress. In the alternative, the Respondent submitted that the Complainant elected to resign her employment once she became aware of a series of allegations against her.

In this regard, Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal 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”

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“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 Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘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 as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an Adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

While the Complainant did not expressly state as much, the present complaint clearly relates to an allegation of a repudiatory breach by the Respondent by virtue of their conduct. In this regard, the Complainant submitted that she attended a meeting on 14th December 2024 and was induced to draft and sign a letter of resignation. Having considered the evidence of the managing director, it is apparent that a conflict of evidence arises in relation to the conduct and tone of this meeting. Nonetheless, it is apparent that certain key aspects are not in dispute. In this regard, it is apparent that the general manager of the Respondent conducted a comprehensive investigation regarding the allegations in question prior to the meeting. At the meeting itself, these allegations were put to the Complainant for the first time, without any advance notice. While this is not of itself unfair, it is not difficult to have sympathy for the Complainant’s position that she felt blind-sided by the allegations and unprepared to defend same in any material fashion. At this juncture, it would be reasonable to assume that the Complainant would be placed on paid suspension pending a full investigation of the surrounding circumstances. In evidence, the Complainant accepted that she took some items without paying for same immediately. In this respect she submitted that staff members had established a custom and practice whereby these items would be paid in bulk on a weekly basis. While, the Respondent raised issue with this submission in the course of the hearing, the correct venue for such consideration is during an internal investigation meeting, whereby statements may be collected and disputed as required.

As matters transpired, the Complainant was informed that the Respondent intended to inform the authorities of the allegations of theft, and that they would conduct their own investigation into the surrounding circumstances. Having considered the evidence of the parties in relation to this point, I find that the same was clearly communicated in an effort to intimidate the Complainant. While the Respondent has a right to inform the Gardai of such matters, the communication of this right, at this time, served no other purpose than to prompt the resignation of the Complainant. In this regard, it is noted that it is common case that the Complainant drafted the letter of resignation during the meeting, in the presence of, and under a least a certain amount of direction on the part of, the general manager.  From the evidence of the parties, it is apparent that the Complainant was working without complaint in the morning in question. Thereafter, that afternoon she attended a meeting whereby she was informed of an allegation of theft, informed that the Respondent intended to report the same to the Gardai and thereafter completed a letter of resignation under the direction of the Respondent in an effort to avoid the same. In consideration of the foregoing, I find that the Complainant’s resignation was not voluntary in nature but was provided under duress.

To succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held 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 claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found 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”

And,

“…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”.

In the present case, the Respondent has submitted that they wrote to the Complainant on two separate occasions, requesting that she reconsider her resignation and engage with their grievance procedures. In this respect, they submitted that the sought to ensure that the Complainant’s resignation was not issued under duress but was freely provided. Two issues arise in relation to this submission. Firstly, it is common case that the present complaint had been referred at the time of the Complainant’s receipt of these correspondences. In this regard, the Complainant formed the not unreasonable view that her employment was at an end and stated that she had no intention of revisiting the same. Secondly, the view of the Respondent was clearly stated during the meeting of 14th December 2024. Having considered the evidence of the parties, it is apparent that the Respondent made no attempt to prevent or dissuade the Complainant from resigning, indeed the polar opposite could be said to be the case. In this regard, the Complainant again not unreasonable in forming the view that the Respondent had no real intention of engaging with the internal procedures as stated in the correspondence.

Having regard to the accumulation of the foregoing points, I find that the dismissal of the Complainant was unfair for the purposes of the impleaded Act.

I find that the dismissal of the Complainant was unfair for the purposes of the impleaded Act.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate form of redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate her losses. In this regard, the Complainant stated that the manner of her dismissal had a detrimental impact upon her. Nonetheless, she accepted that she found alternative employment approximately ten weeks following her dismissal. In this regard, she submitted that she sought an alternative role almost immediately, but a part-time role was difficult to secure.

Having considered the foregoing, I award the Complainant the sum of €2,000 in compensation.

Resignation, Duress, Reconsider, Grievance