Complainant

Respondent

Parties

David Benta

Ignite Cuts Ltd

Representatives

Self

Sayed Ali Abbas

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-00071055-001

23/04/2025

The Complainant worked for the Respondent for 6 years.  In 2025 he sought a raise and the payment of holiday pay.  Both requests were denied so he decided to set up his own salon.  When he shared this with the Respondent he was asked to continue working for a further six weeks and he agreed to a five-week period.  Shortly after this one of the owners had an interaction with him which he feels was tantamount to removing him from the salon.  He had to enlist the assistance of the Gardaí.  He is claiming constructive dismissal.  He submitted his complaint to the WRC on 23/04/2025.  He was paid €300.00 per week through a payroll and received additional payments in cash – a fact not disputed by the respondent.

The Respondent denies the claim and submits that the interaction occurred to prevent the Complainant from poaching customers for his new business.   On the day of the incident the Respondent unplugged the Complainant’s equipment as he wanted to move his workstation closer to his so that he could keep an eye on him.  The Respondent stated that five Gardaí arrived at the premises and the Complainant took his equipment and left.

The Complainant gave evidence on affirmation.  He stated that he commenced working for the Respondent on 13/06/2019.  He had a discussion with the owner about his career progression and it transpired that there were no opportunities to grow further.  He decided to look into the possibility of opening his own shop.  He shared this information with the owners on 18/04/2025 and he was congratulated by one of the owners and not the second owner. He was asked by the Respondent to submit his resignation in writing and he agreed to do so.  It was agreed that he would continue working for five weeks and that his last day would be 24/05/2025.

On 19/04/2025 the Respondent approached him and had an outburst during which he shouted and threatened him aggressively.  The Respondent aggressively unplugged his (the Complainant’s) equipment and he was no longer able to do any work.  He felt that he was kicked out of the shop when he was told to take his things and leave.  The Complainant gave evidence that he felt so threatened and shocked he had to call the Gardaí and raise a formal complaint as this was not the first time, he experienced such an outburst.  They arrived and once they reviewed the situation there was nothing further they could do. 

The Complainant stated that the Respondent has a history of irregularities in relation to his employment.  He was returned as a part-time employee even though he worked full time.   He did not receive holiday pay, breaks, contract or pay slips.

The Complainant confirmed that he is seeking compensation for the loss of the five weeks pay he would have received had he been allowed to continue working as agreed with the Respondent.

The Complainant recorded the incident and this was viewed at the hearing along with the corresponding CCTV provided by the Respondent.

In his closing statement the Complainant stated that he felt the Respondent “exploded when I asked him for my holiday pay”.  It was the other owner who told the customers about the Complainant opening his own shop.  The Complainant felt that he was threatened and told to leave.  The Complainant is also seeking payment for holiday pay as he only received holiday pay based on part time hours and not his actual hours.

CA-00071055-001:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977.

At the hearing the Complainant raised a number of other issues in relation to his employment.  It was clarified that an Adjudication Officer can only deal with the complaint as delegated to him/her by the Director General of the WRC.

The Law

Section 1 (b) of the Unfair Dismissals Act defines ‘dismissal’ for the purposes of the Act in circumstances where:

“(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”.

Section 6(1) of the Act states:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Deliberation

Where the fact of dismissal is in dispute the Complainant must establish that his employment ended in circumstances amounting to a dismissal as that term is defined by the Act. To succeed in a claim of constructive dismissal a Complainant must demonstrate that his decision to resign his employment resulted from either a repudiatory breach of his contract of employment by the employer or such unreasonable behaviour by the employer that he could not fairly be expected to put up with it any longer. Repudiatory breach

A repudiatory breach is a fundamental breach going to the root of the employment contract. A repudiatory breach allows a party not in breach to accept the breach and affirm the contract or to repudiate the contract. If the employee decides to repudiate the contract by resigning, he needs to do so in a timely manner otherwise his continuing to work can be taken to amount to an affirmation.

The applicable test was set out by Lord Denning M.R. in Western Excavating Limited (ECC) v Sharp [1978] IRLR 332 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 as discharged from any further performance.”

Based on the evidence before me, I am not satisfied that the Complainant established a fundamental breach of contract which would entitle him to consider himself as dismissed.  Indeed, in this case there was no written contract of employment.

Reasonableness of the Resignation

The remaining issue the me as the Adjudication Officer is to assess whether the Respondent’s conduct was such that it was indeed reasonable for the Complainant to resign. In constructive dismissal cases, the Adjudication Officer must examine the conduct of both parties.  This requires an assessment of the events leading up to the termination of the Complainant’s employment.

It is undisputed that the Complainant was a committed and hardworking employee.  However, there is conflicting evidence regarding the incident that led him to conclude that it was not safe for him to work out his five-week notice period.  The CCTV confirms that there was an interaction which occurred in front of customers and staff.  The Complainant clearly perceived the Respondent’s behaviour as aggressive and threatening.  This interaction occurred after the Respondent overheard the Complainant speaking to customers about opening his own business.

At that point this employment relationship deteriorated to the point where the Complainant contacted An Garda Síochána. 

Was it reasonable for the Complainant to resign?

The question for the Adjudication Officer to consider is whether the cumulative effect of all the interactions between the Complainant and the Respondent crossed a threshold to damage the relationship to such an extent that it was reasonable for the Complainant to resign.

The Act places a high burden on a Complainant in a constructive dismissal case. To succeed in such a claim, a Complainant must establish that the employer’s unreasonable behaviour was such that he was justified in believing that he could not continue any longer in that employment.  In such situations an employee must alert the employer to his situation by availing of the grievance procedure, where one exists, to allow the employer an opportunity to rectify the problem before resigning.  In this case it was clear that there was no grievance procedure and that the employment relationship was operated based on a close working relationship between the parties.

At stated previously, in any case of constructive dismissal, the Adjudication Officer must examine the conduct of both parties. A failure to invoke the employer’s grievance procedure can be fatal to a complaint of constructive unfair dismissal. However, in this case the absence of any procedure must be considered.

I have reviewed the timelines applicable to this case.  The Complainant worked for the Respondent from 13/06/2019 and left on 19/04/2025.   It is clear from the Complainant’s evidence that some of these issues with the Respondent’s behaviour occurred previously.  I find that the Respondent did not deal with his concerns in an amicable manner and which could, potentially, have led to a mutual understanding about how the remaining weeks of the Complainant’s employment could be managed.

Determination

In all the circumstances, I find that the behaviour of the Respondent was unreasonable such as to justify the Complainant terminating his employment by way of constructive dismissal.

Redress

Where an employee has been dismissed and the dismissal is found to be an unfair dismissal the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal not exceeding 104 weeks remuneration. The acts, omissions and conduct of both parties will be considered when calculating the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/remunerative loss which includes actual loss as well as estimated prospective loss.   Given the circumstances of this case the Complainant is seeking compensation for the loss of earnings only for the five weeks’ notice period.   I have decided that the Complainant should be compensated in the amount of €4,000.

I have decided that this complaint is well-founded.  I order that the Respondent pay the Complainant the sum of €4,000 which I consider to be a just and equitable sum having regard to all the circumstances in this case.

Constructive dismissal.