Complainant

Respondent

Parties

Juraj  Adamec

Con Kelleher  T/ A Ck Landscaping & Garden Maintenance

Representatives

 Simon Kelly, Solicitor

 No Appearance by or on behalf of the Respondent

Act

Complaints Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062409-001

26/03/2024

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

CA-00062409-002

26/03/2024

On 26 March 2024, the Complainant, through his Solicitor submitted two complaints to the WRC.

1 He had not received a statement in writing of his terms of employment.

2 He claimed Constructive Dismissal.

He sought and was provided with an Interpreter in the Slovak language at hearing.

On 27 March 2024, the Respondent, Con Kelleher was placed on notice of the complaints but did not make any response.

On 24 June 2025, both Parties were invited to an in person hearing in Cork scheduled for 22 August 2025.

The Complainant attended the hearing in the company of his Solicitor. There was no appearance by or on behalf of the Respondent at hearing. No defence of the claims was submitted.

On 8 August 2025, in preparation for hearing, I followed up on the requirement for both parties to submit outline submissions.

I received an outline written submission on behalf of the complainant, but no response from the Respondent.

At hearing, the Complainant took the oath to accompany his evidence.

The Interpreter took the oath in support of his translation.

I have not received any communication from the respondent at any point in relation to their nonattendance at hearing or reasons which may have arisen.

The Complainant worked as a Landscape Gardener from 13 July 2021 to his cessation of employment on 6 October 2023. He was paid €620.50 gross in respect of a 35-hour week.

He found new work on April 1, 2024.

Mr Kelly, for the Complainant submitted that he had never been provided with written terms of employment.

On 5 October 2023, in the course of his work, he was physically assaulted by a colleague. On the next day, October 6, 2024, the complainant sought to discuss the previous day’s incident with the Respondent.

The respondent physically attacked the complainant and verbally abused him. He was fearful for his safety at work and considered that his employment was no longer viable. He informed the respondent of this development.

He reserved the right to refer to Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work 2007 and the Joint Code of Practice 2021.

Mr Kelly argued that the Complainant had been constructively dismissed and that compensation was the viable remedy.

In relying on Joyce v Brothers of Charity Services [2009] ELR 328, EAT, he sought a consideration of the conduct of the employer and the reasonableness of the resignation by the employee.

He submitted that while the initial occurrence of assault, may not have amounted to constructive dismissal, it was the respondents’ actions of October 6, 2023, which failed to engage with the complainant and then assaulting him placed the complainant in unenviable position.

“Rendered it wholly unreasonable for the Complainant to continue in his employment and necessitated the termination of his contract “

For which he was entitled to compensation.

Mr Kelly presented a wage slip dated 22 September 2023, a Garda Report on crime reportage dated 9 October 2023 and a GP report dated 13 August 2025.

Evidence of the Complainant:

The Complainant outlined that he enjoyed his job as a Landscape Gardener and had been regarded and acknowledged for his talent in the area.

CA-00062409-001

He had not received a written statement of his terms of employment and had not been provided with grievance or disciplinary procedures relevant to his employment.

CA-00062409-002

The Complainant outlined the sequence of events from 6 and 7 October 2023 in an unblemished employment.

He recounted details of tensions with more senior in tenure employees, Mr A and Mr B. during a garden project in the Cork suburbs. Mr C, the Respondent was not present on site.

He described Mr A as “an aggressive person “and in the course of a conversation on job security, he found he was head butted by him. He was deeply shocked.

On the next day, October 6, 2023, he addressed Mr Kelleher, the Respondent, informed him of the argument and that he did not want to work with Mr A again.

A heated exchange followed between him and his boss, which resulted in him being verbally abused and assaulted by him. He sustained an injury to his shoulder.

He was scared. He told the respondent he was not coming back to work as he understood he was not wanted at the business. His wages ceased.

He took advice and filed a report with a Garda Siochana on 10 October 2023.

A submitted Medical Report dated 13 August 2025 detailed that the first in time assault occurred on 6 October 2023. This was followed by an unprovoked assault by “his boss “the next day, 7 October 2023. A 4x2 cm bruise on his upper arm was noted as visible on his upper right arm.

 A sick note of 3 weeks duration issued, which was repeated in November 2023, which concluded on 12 March 2024.

The Medical report contained details of the complainant having a chance encounter with his boss in February 2024, which caused him stress.

He gave evidence of loss of a weekly differential of €34.00

There was no appearance by or on behalf of the Respondent. Notification of claim or hearing was not returned as undelivered by a Post.

CA-00062409 -001 Terms of Employment

I did not receive a defence of any kind in the case.

I would have liked to have met the Respondent to help me to tease out this claim on the evidence of both parties.

I must conclude that Mr Kelleher’s nonattendance at hearing is unreasonable.

CA-00062409—002 Unfair Dismissal

I did not receive a defence of any kind in the case.

I would have liked to have met the Respondent to help me to tease out this claim on the evidence of both parties.

I must conclude that Mr Kelleher’s nonattendance at hearing is unreasonable.

I have been requested to make a decision in both these complaints. In reaching this decision, I have had regard for the Complainants written submission and oral evidence. I have also reflected on the non-participation in any response to the claims or attendance of the Respondent at hearing.

CA-00062409 -001 Terms of Employment

Section 3 of the Terms of Employment (Information) Act 1994 requires an Employer to provide an Employee with a written statement of terms of employment within one month of commencement.

The Complainant gave undisputed evidence that he commenced work on 13 July 2021. He submitted that he had not been provided with the obligatory provisions of Section 3 by means of a signed written statement.

This evidence was not disputed by the Respondent.

The provision of a written statement is meant to guide both parties in the operation of the employment. All I have that links this employee to his stated employer is a Pay slip dated 22 September 2023. (29 insurable weeks in 2023)

I accept his evidence that he did not receive the statutory written terms as provided for in Section 3 of the Act.

I am satisfied on uncontroverted evidence, that the Respondent has contravened Section 3 of the Act. A continuous contravention has occurred.

The claim is well founded.

CA-00062409—002 Unfair Dismissal

The Complainant has claimed constructive dismissal.

Constructive Dismissal is defined in Section 1(b) of the Unfair Dismissal Act 1977.

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

The burden of proof rests with the complainant that his departure was involuntary through either the contract test or the reasonableness test.

For me, in making my decision, I must analyse the behaviour of both parties. Adam Berber v Dunnes Stores ltd [2009] IESC 10.

In that, I am at an immediate disadvantage by the failure of the Respondent to engage on the claim or participate at hearing.

I am limited by the complainant’s presentation and evidence and my inquiry on same.

I have been asked to consider an employment tenure of over two years 2021-2023, where there was no precursor events flagged which placed any fragility or heralded risk on the employment relationship. This is distinguished from Liz Allen and Independent Newspapers Ireland ltd [2002] 13 ELR 84 in that regard.

The Complainant said he was respected in his role and had excelled at the craft.

The Complainant did not have the benefit of employment documentation such as a contract of employment or the navigation tools of a grievance procedure.

The events of early October 2023 appear to stand in isolation and so I must direct my mind to those submitted occurrences.  

I accept the Complainants uncontroverted evidence that he was assaulted by a Colleague in the course of his work on 5 October 2023. I accept that this shocked the complainant and he did not make a same day report of this occurrence by means of an incident report / health and safety.

I listened carefully when he told the hearing that he had tried to resolve the matter the next day, October 6, 2023, directly with his boss, but was further affronted and punched. I could not obtain any witness evidence or record of an IR1 form, normally retrievable in instances of employee injury.

The Medical report exhibited is illustrative, but not probative as the GP did not give evidence.

I find that I must accept the uncontroverted evidence of the complainant that the cumulative effect of the occurrences of 5 and 6 October 2023 in the workplace rendered his employment unviable.

There is some opaqueness surrounding his termination date, but I accept that he told his employer that “he was not coming back “on Friday, October 6, 2023. I am taking this as his last working day in the absence of a written resignation.

I can see that the medical report records a period of illness in the immediate aftermath of these incidents attributable to the events.

It is difficult to conceive that an employment such as this is in being in 2023. It would have been reasonable to seek to resolve any difference through dialogue or mediation, however, I cannot locate any operational procedures which would support that approach.

Violence is a red line issue in any employment and an occurrence that requires guidance and intervention rather than escalation by an employer.

I must conclude that based on the evidence before me, that the employment relationship was severed once the complainant was doubly assaulted in the workplace.

I find he acted reasonably when he considered that there was no way back for him once his employer distanced himself from a resolution and by bodily attack. I established that he did not have access to a grievance procedure as none existed. Conway v Ulster Bank UD 474/1981, distinguished.

These occurrences or incidents are not reconcilable as “heat of the moment utterances “where participants often have a change of heart and pivot positions.

Assault is defined under the Non-Fatal Offences against the Person Act, 1997

Assault.

2.— (1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly—

(a) directly or indirectly applies force to or causes an impact on the body of another, or

(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact,

without the consent of the other.

(2) In subsection (1) (a), “force” includes—

(a) application of heat, light, electric current, noise or any other form of energy, and

(b) application of matter in solid liquid or gaseous form.

I find that the Complainant was constructively dismissed on October 6, 2023.

The period of illness mentioned in the medical report postdated the date of dismissal but arose as a result of the assaults.

No evidence was offered to rebut this presumption.

The Complainant was unavailable for work due to illness attributable to the actions of the Respondent, both in the avoidance of conflict resolution and by escalation by assault.

The Pulse Incident number of 9 October 2023 has not concluded in a reported outcome.

In Sheahan v Continental Administrative Co Ltd, UD 858/1999, EAT held that compensation was the only viable remedy.

I follow this as any remedy of re-instatement or re-engagement has no chance of success in this employment long concluded and abandoned.

I find that the Complainant was constructively dismissed.

CA-00062409 -001 Terms of Employment

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with the provisions of Section 3 of   that Act.

I have found the claim well founded.

I order the Respondent to pay the Complainant €2,602 as just and equitable compensation in respect of the continuous breach of the Act.

CA-00062409—002 Unfair Dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the Complainant was constructively dismissed.

I find some overlap in the circumstances of the case of Waterford Health Park Pharmacy ltd t/a Stratus Healthcare v Aoife Foley UDD [2025] 36 ELR 117, albeit a Statutory Unfair Dismissal on actual and prospective loss.

“ …. A key fact in this case, and one which has been conceded by the respondent, is that there was not a scintilla of procedural fairness in the manner in which the claimant weas dismissed from her employment “

I find that the complainant was abandoned by his employer and all trust and confidence evaporated on October 6, 2023, thus rendering the employment unviable. The absence of any circulated grievance procedure so as to aide conflict resolution is a stark reality, which makes matters worse.

I order the Respondent to pay the Complainant €9,107 .00 (14 weeks remuneration) as just and equitable compensation to reflect actual and prospective financial loss.

I also give a strongly worded recommendation that this Respondent immediately embraces the modern-day employment navigation tools of a grievance and disciplinary procedure as well as reportage of workplace injuries as set down in law.

Constructive Dismissal / Terms of Employment.