ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00058038
Parties:
| Complainant | Respondent |
Parties | Megan Hayes-Kelly | Health Service Executive National Ambulance Service |
Representatives | Barry Crushell Crushell & Co Solicitors | Loughlin Deegan Byrne Wallace Shields LLP |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00070555-001 | 04/04/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00070555-002 | 04/04/2025 |
Date of Adjudication Hearing: 18/06/2026
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Summary of Complainant’s Case:
The complainant worked for the National Ambulance Service, part of the HSE. She commenced employment as an Emergency Medical Controller on12August2019 and resignedon03April2025. Her salary was €42,675.00.
She has made complaints under Section 77 of the Employment Equality Act, 1998 and Section 8 of the Unfair Dismissals Act, 1977. She says she was not afforded a safe place of work and had to resign. She continued to work with no major issue or concerns, until the weekend of 16 February 2024. During her shift on 16 February 2024, they were subjected to several instances of bullying, harassment, and victimisation, which have had an adverse impact on her physical and mental well-being.
As a direct result of these incidents, she experienced anxiety, humiliation, and emotional distress, which have continued to affect both personal and professional aspects of life.
For the remainder of the weekend of February 16th, she was subjected to unacceptable treatment following a distressing mental health-related call. Her supervisors acted in a manner that caused further discomfort. She was removed from regular duties without clear justification or adequate support and was subjected to unacceptable comments by supervisors that further undermined confidence. The absence of support during this period led to her leaving work early on 18 February 2024.
On 26 March 2024, she formally submitted a grievance through her Union and was subsequently advised to refer their grievance internally with the Respondent. The complainant subsequently raised their grievance with Mr. Ken Lyons, General Manager, on 01 April 2024, setting out in detail the multiple instances of bullying, harassment, and victimisation suffered on the weekend of 16 February 2024.
She encountered persistent delays, inconsistencies, and a lack of clear communication from both management and the union following their filing of the grievance. She was also subjected to administrative errors, including issues with timesheets and a lack of support in managing certified sick leave and there was continued questioning about her sick leave and health status.
Having received nothing from management regarding progress of their grievance, the complainant submitted additional complaints to be incorporated into the original grievance on 30 August 2024. These complaints outlined concerns regarding the lack of duty of care during the weekend of 16–18 February 2024, when she was left in an unsafe and distressing situation.
On 24 October 2024, she received notification from Mr. Lyons that the complaint was suitable to progress through the dignity at work procedure and later received correspondence from her union official, Ms. Cara O’Neill on 13 March 2025, indicating that Richard Quinlan had been appointed as Investigation Commissioner. She expressed concern at the lack of impartiality of Mr. Quinlan, given his familiarity with the individuals whom the grievance was filed against. Due to the lack of progress over the preceding twelve months, the complainant felt she had no option but to resign from her role on 03 April 20255.
Only after the complainant had resigned did the Investigation Commissioner, Mr. Richard Quinlan, confirm his assignment on April 11th. This was over a year after she first filed the grievance.
Moreover, the complainant subsequently received correspondence from Ms. Seana Browne on 01 July 2025, indicating that an interview with a Human Resource Investigator had been scheduled for 10 July 2025. The complainant says attempts to resolve matters were only made once she had resigned.
On medical advice she confirmed that she would not be attending the meeting.
The case of Thomas Greaney v GalwayCity Council (ADJ-00049895) examines the circumstances under which stress and anxiety will constitute a disability under the Employment Equality Act, 1998, and failure to address it a reasonable accommodation. The Adjudication Officer noted:
“It is submitted that the respondent in this case has clearly failed in providing reasonable accommodation to the complainant as a person suffering from a disability within the meaning of the Acts. The concept was not even explored with the complainant, despite the respondent being on notice in relation to his condition. The complainant had to continue to work with the person who had carried out the bullying and intimidation in the workplace. Even when that person was no longer assigned to work with the complainant, the complainant still had dealings with him and came across him. The offending behaviour continued, making the complainant’s workplace conditions intolerable and exacerbating his stress and anxiety. The respondent did not deal adequately with the outcome of the investigation and the failure to reasonably accommodate the complainant is ongoing. Rather than attempting to reasonably accommodate the complainant, the respondent simply stated that the investigation was over and no further information was given.”
Of similar relevance is the case of case of Caroline McGarry v JTI (Ireland) Limited (ADJ-00041399), the WRC determined that the certified sick leave and stress of the employee must be addressed by the employer, otherwise, such a failure may make it reasonable for an employee to resign. The complainant will have discharged the burden of proving constructive dismissal.
The complainant had brought a complaint under section 8 of the Unfair Dismissals Act 1977 claiming that she was forced to quit her job of 13 years with JTI (Ireland) Ltd because her bosses made no response of any substance to a letter, she termed a “cry for help”. As a result, she decided she had to make her health the priority and resigned.
The respondent asserted that the complainant had failed to exhaust all internal procedures before resigning, including engaging with the Performance Improvement Plans and/or initiating a grievance. Further, the respondent disputed the complainant’s characterisation of events and submitted that it did everything possible to support the complainant in her role. The Adjudication Officer ordered the respondent to pay €40,000 after trying to press on with a performance improvement plan for a worker who said she was sick with the stress of the job. The medical status of an employee must be considered by an employer when determining any actions and the reasonableness of an employer will be adjudged by such a standard.
In Berber v Dunnes Stores Finnegan J stated:
“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 as such that the employee cannot be expected to put up with it”.
In Murray v Rockavill Shellfish Ltd it was affirmed that:
“It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.
In UD142/1987 Beatty v Bayside Supermarkets it was noted that:
“The Tribunal considers that it is reasonable to expect that 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 Ltd 474/1981. In this case the Tribunal considers that procedure was not followed by the Claimant and that it was unreasonable for him not to do so. Accordingly, we consider that applying the test of reasonableness to the Claimant’s resignation he was not constructively dismissed”.
A long line of decisions of the WRC, Labour Court, and the Employment Appeals Tribunal before 2015, have established that conduct of an employer which would justify an employee terminating the contract of employment includes a breach of the contract of employment by the employer which goes to the root of that contract or circumstances where the employer’s unreasonable behaviour was such that the employee could not reasonably be expected to remain in the employment.
The complainant says she was not afforded a safe place of work. The Safety, Health and Welfare at Work Act sets out the health and safety requirements of the workplace. Section 8 provides the general duty to ensure ‘so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.’
Catherine Hurley –v- An Post [2017] IEHC 568, a High Court decision concerned workplace bullying which was not addressed. The decision stated:
“The Court is satisfied that there is a common law duty on an employer to take all reasonable precautions for the safety of its employees and not to expose them to a reasonably foreseeable risk of injury.”
The High Court found that the defendant was in breach of its common law duty of care to the plaintiff as an employee under Section 8 of the 2005 Act and exposed the plaintiff to the damage and injury suffered as a result. Failing to address this Complainant’s excessive working hours when on notice of the need for more staff, perpetuating the continuing distress of a disciplinary and monitoring process when in possession of medical knowledge concerning the Complainant’s mental health is a stark indication of this respondent’s failure to observe this contractual obligation.
The unlawful, ongoing and excessive working hours, in breach of the Organisation of Working Time Act, 1997, constituted a continuing breach which was allowed to continue and would, of itself, be reasonable grounds for the complainant to terminate his contract of employment. His contract of employment requires his employment to be governed by the state’s laws. While the company had an obligation under his contract of employment, common law and by statute and its own procedures to investigate clear breaches of law and of health and safety guidelines it declined to do so.
The complainant made efforts to resolve matters internally before resigning. It was only after her resignation that the Respondent appeared in any way to take her concerns seriously. There is authority for the proposition that the requirement to exhaust the internal formal procedures is not a fixed or universally applicable rule and that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal.
In Office Administrator v A Manufacturer ADJ-00026208, it was held that, in the absence of a clear grievance procedure, and given the breakdown in trust and confidence between the parties, there was no need to exhaust the grievance procedure:
"In the context of the issue involved the use of a grievance procedure was both pointless and also unclear if indeed there was one in existence, based on the contractual evidence of the employee. Overall, I find that the Complainant, in the uncontested evidence provided, had significant grounds to resign, without invoking a grievance procedure, due to the Bond of Trust being irrevocably broken down between the parties and accordingly I find the complainant to be unfairly dismissed."
In Beglan v. Scanomat Ireland Limited UD688/2012 an employee wished to have his grievance referred directly to the LRC (now known as the WRC) as there was no one within the Company he could bring his grievance to, but management had refused as it was an internal matter. Therefore, the employee felt he had no option but to resign and he brought a constructive dismissal case against his employer. The EAT found in favour of the complainant and that he was constructively dismissed.
Schonfield v. West Wood Club Clontarf Ltd UD1013/2013, the complainant had no one to complain about the conduct of the General Manager and therefore resigned. The tribunal found that the resignation of the complainant was involuntary and upheld her complaint of constructive dismissal.
In the case of Allen vs. Independent Newspapers UD 641/2000, the EAT found that the complainant had been constructively dismissed. The complainant had contended that she had been subjected to harassment and bullying, that she had been isolated at work and her confidence undermined and her health affected to such an extent that she was forced to resign. She raised issues verbally with management and outlined her general feelings of isolation. The EAT found that she acted reasonably in terminating her employment and it was accepted that a complaint could be processed directly to management rather than using the formal grievance procedure.
While cognisant of the consignable period, the complainant maintains that a variety of issues outside of that timeframe should be considered by the WRC, per County Cork VEC v. Hurley EDA 1124 (in which there are a series of separate acts or omissions which, while not forming part of the regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum). Redress sought by Complainant; and
Complaint under Section 77 of the Employment Equality Act 1998 (CA-00070555-001)
The complainant briefly contends that her employer treated her unlawfully by discriminating against her and failing to provide reasonable accommodation. The WRC Complaint Form the complainant set out that:
“My issues arose on the weekend of 16 – 19 February 2024 when I was bullied in the workplace. I spoke in confidence to a supervisor and asked her could I go to the bathroom and speak about a call which I had just taken. Following this, I was told by supervisors that they were appalled by my actions in taking the call and that they could organise occupational health if need be.
Upon returning to work that evening, I was then told to sign off the computer and that I would no longer be sitting on the mental health desk and I am to move to Liaison desk immediately where DCS C. Ahearne will train me in. I felt very uncomfortable on the desk. There was a whole series of events where I was humiliated, victimised, isolated, moved around different desks, slagged over hygiene levels. From every part of the grievance that I submitted, that was the weekend.
Complaint under section 8 of the Unfair Dismissals Act 1977 (CA-00070555-002)
The complainant says that she option but to leave her job. The WRC Complaint Form sets out that:
“Due to the victimisation and discrimination that I suffered, I could not go back and work in an environment where I felt so unsafe, where my mental health was put through the mill already from the additional complaints, not knowing my arm from my elbow, who I could talk to.
Obviously, what happened that weekend was off the wall and, a year later, I am still certified sick, I am still attending counsellors, I am still following up with appointments, I am still wanting to get better. How could you return to a place of work that’s not safe and is as toxic as what happened. I would never want another human being that works there, or any job, especially giving health care, to be actually contemplating taking their own life and to be told that, unless you’re contemplating taking your own life, there is no help.
I felt I had no option but to resign on 04 April 2025, due to the grievances which I suffered, and I am therefore seeking adjudication on grounds of Constructive Dismissal.”
The complainant has been out of work for 18 weeks, amounting to a total loss of earnings of €14,772.12.
In determining what constitutes “relevant redress” the general formulation is that an Adjudication Officer should issue an award which they consider just and equitable, having regard to all of the circumstances. It is the position of the complainant that “just and equitable” implies a consideration, not only of any loss of earnings, but other financial losses incurred by the breach of their employment rights, a consideration of the stress and emotional toll of being in dispute with the Respondent, the legal fees incurred in pursuing complaints before the WRC, the personal and professional reputational consequences of the infringement, the impact of the infringement on any future career prospects, the financial position of the Respondent and the requirement of the WRC to ensure that any compensation payable is effective, proportionate and dissuasive (Case 14/83 von Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891; see also Case 79/83 Dorit Harz v Deutsche Tradax GmbH [1984] ECR 1921).
For the sake of completeness, the obligation on the employee in Section 7(2)(c) is only one of six tests that are set out in that section and that Section 7(2) (c) does not have a greater primacy than anyoftheothers.
The complainant gave evidence on affirmation.
She referred to the incident on February 16th, and the issues that arose from it. She said that it had an impact on her health and that she went sick initially for one month. Following the first Occupational Health (OH ) report she was simply too unwell to return to work. She said that three meetings took place about the interpersonal issues, and she told OH about the February episode.
Regarding the provision of reasonable accommodation, she said that it would have been helpful to have been listened to, a lot more could have been done, she said.
The respondent offered three options for a return to work none of which was acceptable (one of them was in the same building in which some of the alleged perpetrators in her complaint worked.
Regrading her decision to resign she had received no response to her grievance for a very long time and her issues were not addressed. She said that she had really thought about the decision and had raised her concerns about the investigator through her union, SIPTU.
The notification to her of the appointment of the investigator was not sufficient to keep her in her job. By that point she does not feel that there was anything that could have kept her in her job
When asked whether she had considered submitting a grievance about the failure to process the initial grievance, she replied that she had, but had decided that it would be pointless. She decided not to cooperate with the actual investigation when t got underway because it was too late.
In cross examination the sequence of events was again rehearsed from the time of the original grievance. In particular the issues related to determining the nature of the complaint, whether grievance or Dignity at Work complaint. She agreed that it was designated as a ‘grievance’ by her union on July 16th. This was followed by a meeting on August 9th.
On August 12th she stated that she rejected mediation and reverted to a Dignity at Work complaint.
She was questioned on why she rejected the re-location options. One was too far away (although it was the only other national base of the respondent), one had some of the complaint respondents working there and another had a friend of one of the complaint respondents working there.
She accepted that these were efforts to allow her to return to work.
She confirmed that she had not been aware that the investigation ‘Commissioner’ is not the person who carries out the investigation but was aware that her complaint had been referred to the Investigation Unit.
It was put to her that she had made no complaint about the Commissioner in the three week period between notification of his appointment and her resignation, she said it was ‘’too little, too late’. She stated that she did think about a grievance over the failure to process her 2024 grievances ‘but decided it would be pointless.’
That concluded her evidence.
In summing up, the complainant’s solicitor referred to the humiliating incident which had given rise to the initial grievance and the ensuing impact on her. The fact that she has a disability and that this was known to the respondent is not in dispute.
The delay in processing the grievance did not prevent compliance with accommodating her return to work options. Tose which had been offered to her were unrealistic.
Regarding the constructive dismissal complaint, a person is not obliged to engage indefinitely in an effective process and the complainant only made her decision to resign when the situation became untenable; it was not a peremptory decision.
The formal procedures failed, so her resignation was reasonable.
Summary of Respondent’s Case:
The complaint was submitted to the WRC on 4 April 2025. The cognisable period is therefore the period from November 5th, 2024 to April 4th, 2025. Many of the matters raised in the submissions are outside the cognisable period and are statute barred and not properly within the scope of this complaint. The complaint is based on events that she alleges occurred on the weekend of 16 February 2024, which was more than a year before this complaint was lodged. She had, during her employment, complained about the events of that weekend and related matters. This complaint was initially raised as a grievance and later was addressed under the Respondent’s Dignity at Work Policy. In this submission we refer to the issues raised by the complainant as “the Internal Complaints” (encompassing both the matters that are in the nature of grievances and the matters that are in the nature of dignity at work complaints) and this complaint as “the WRC Complaints”. In the Internal Complaints she alleged that other employees of the Respondent behaved inappropriately towards her during the weekend of 16 February 2024 and at other times. The Respondent investigated the Internal Complaints by means of arranging six separate but parallel complaints. The complainant declined to participate in those investigations. The investigator concluded, in all six cases, that there was not sufficient evidence to support the allegations of bullying and harassment that she had made in the Internal Complaints; that in each case the respondent’s behaviour did not constitute and breach of the HSE Dignity at Work Policy; and that her allegations were not upheld. The Respondent did not fail to provide any reasonable accommodation. She has not set out any case that would suggest that she needed any reasonable accommodation nor ever requested any reasonable accommodation on medical grounds or indicated that it was medically required for her. The Respondent offered her several alternative work locations, but the Respondent’s occupational health doctor reported that there were no such accommodations that would facilitate the Complainant’s return to the workplace at that time. She was not dismissed, whether constructively or at all but resigned her employment after the Respondent had arranged an investigation into the Internal Complaints. She declined to participate in, much less exhaust, the internal procedures established to investigate the Internal Complaints. The National Ambulance Service’s National Emergency Operations Centre The National Ambulance Service operates the respondent’s fleet of emergency response vehicles. In doing so, the NAS is supported by a large team of paramedics, advanced paramedics, other pre-hospital emergency care professionals and other professionals. In support of its activities, the NAS operates, at two locations (namely Tallaght in Dublin and Ballyshannon in Donegal) a National Emergency Operations Centre (“NEOC”). The main purpose of NEOC is to receive and process health-related calls made to the national emergency phone numbers (999 and 112) and to dispatch emergency ambulances to patients in response to such calls. Emergency calls are managed through a system called the Advanced Medical Priority Dispatch System (“AMPDS”). The NAS is licensed to operate the AMPDS by the International Academy of Emergency Dispatch (“IAED”). The NAS is obliged, under the terms of its licence from the IAED, to ensure that all of its staff who manage emergency calls are properly trained, qualified and licensed to act as emergency call takers. Because of the safety-critical nature of the emergency call service, call-takers operating that service operate under a high degree of supervision and support from their supervisors and colleagues. Calls are taken in a large open-plan area where colleagues can overhear call-takers receiving calls. Calls are recorded. There are a number of mechanisms under which recorded calls, once taken, can be reviewed. The process in NEOC is that if a call-taker handles a call in a way that causes concern to colleagues or supervisors, call-takers are debriefed by the appropriate colleagues and supervisors about the call in question. Where necessary action can be taken (which can be remedial action in respect of a patient’s care; informal or formal action to address performance concerns about the call-taker; supportive action to support a call-taker who has been affected by a call; or other appropriate action) such action is taken. The mental health signposting service In addition to operating the emergency call and ambulance dispatch system, the NAS also operates (from the NEOC) a mental health signposting service called the “Your Mental Health Information” line. Under this service, people can call a dedicated phone number (which is not 999 or 112). Such calls are answered by a people who work for the NAS, though the service is not branded as a NAS service. The purpose of this service is not to provide clinical, therapeutic or diagnostic services to people with mental health concerns, but a call-taker will provide contact details to each caller for appropriate mental health services in the caller’s locality. In contra-distinction to the requirement that applies in respect of taking emergency calls (described in paragraph 2.2 above) call-takers on the mental health signposting service do not need to be licenced to operate the AMPDS. The mental health signposting service is operated from a desk in the NEOC. One person staffs that desk at any time. That person works in an open-plan location in which over a dozen other staff are operating the AMPDS system. The complainant was employed from August 12th, 2019, until her resignation on 3 April 2025. Her contract of employment was as an Emergency Medical Controller. She worked in the NEOC in Tallaght. For a minority of the duration of her employment she worked in the capacity of a call-taker for the emergency ambulance service. For most of the period of her employment the complainant was assigned to the mental health signposting service (“the mental health desk”). On the weekend starting 16 February 2024 an issue arose in respect of the manner in which she dealt with a call on the mental health desk. Several of her colleagues, including her supervisor, appear to have regarded her engagement with the caller in question as being of concern and requiring intervention. The complainant regarded the manner of her colleagues’ intervention with her as having been inappropriate. Given the findings of the investigations that the Respondent carried out into the events of the night in question (and related events) it is evident that the engagement by her colleagues with the complainant was not acceptable. The complainant commenced a period of certified sick leave on 20 February 2024. She remained on sick leave for the remaining duration of her employment. She was paid sick pay for the remaining duration of her employment in accordance with the sick pay scheme that applies within the Respondent. She received appropriate support during that period of her employment including by receiving support from the Respondent’s occupational health department by being offered services of the Employee Assistance Programme (EAP) and its Critical Incident Stress Management (CISM) protocol and being offered alternative roles to facilitate her return to work. She was also facilitated by submitting medical certificates less frequently than the Respondent’s sick pay policy requires; and with frequent calls and meetings with her managers, who sometimes took lengthy calls from her, at times late at night. Chronology in respect of the Internal Complaints Events prior to the cognisable period On 1 April 2024 the complainant emailed the first of the Internal Complaints to Mr Ken Lyons, General Manager. She described these complaints as a “grievance”. On 2 April 2024 Mr Lyons called the complainant and discussed the complaints with her. On 3 April 2024 Mr Lyons emailed the Complainant. He confirmed that the Duty Control Manager, Mr John Larkin, would handle the complaint. He confirmed that the complainant could progress this issue using the informal process, or alternatively it could be addressed formally using either the Grievance Procedure of the Dignity at Work Policy. Mr Lyons asked the complainant if she was happy to address the complaint firstly using the informal process. On 8 April 2024 Mr Larkin spoke to the complainant by telephone. The complainant confirmed that she was happy to proceed as Mr Lyons had outlined in his email of 3 April 2024. Mr Larkin arranged to speak with the complainant again on 9 April 2024. It appears that in that second call Mr Larkin arranged to meet with the complainant and her representative two days later, on 11 April 2024. On 11 April 2024 Mr Larkin met the complainant and Mr Declan Duffy (a staff representative) in person. They discussed the Complainant's complaints and the options that were available for her to seek resolution. They arranged to meet again on 19 April 2024. On 19 April 2024 Mr Larkin contacted the complainant by phone. The complainant had not yet decided which avenue for resolution she wished to pursue. On 23 April 2024 the complainant contacted Mr Larkin by phone to discuss medical certificates. Mr Larkin agreed to follow up with the complainant in relation to requirement for weekly medical certificates and payroll. On 24 April 2024 Mr Larkin emailed Mr Lyons to confirm that he had updated Payroll and that in exceptional circumstances, bi-weekly medical certificates can be accepted but that they must be specifically for each 14-day period. On 24 April Mr Larkin called the complainant to confirm that bi-weekly medical certificates would be accepted in her circumstances as an exception to the policy. On 7 May 2024 Mr Lyons sent a referral to the Respondent’s Occupational Health Department. Mr Larkin also met with the complainant on 7 May 2024 to remind her of the medical certificate requirements. On 10 May 2024 Mr Larkin contacted the complainant by phone. During this conversation the complainant indicated that she was considering resignation. Mr Larkin provided the relevant details but requested that the complainant take the weekend to reflect. On 13 May 2024 Mr Larkin contacted the complainant by phone. She confirmed that she had sent in medical certificates and that she was no further along in deciding how she wished for her complaint to proceed and be handled i.e. formally or informally. She requested information on her annual leave balance. They arranged to speak again on 16 May 2024. On 24 May 2024 Mr Larkin contacted the complainant by phone. The complainant said she would be seeing her doctor again the week beginning 27 May 2024 and would provide a medical certificate then. On 5 June 2024 Mr Larkin contacted the complainant by phone. The complainant was still unable to provide direction as to how she wished to proceed. The complainant wanted her Occupational Health referral reinstated. On 11 June 2024 the complainant sent Mr Larkin a text indicating that she wished to proceed formally. 11 June 2024 Mr Larkin emailed the complainant and her representative Mr Duffy asking the complainant whether she wanted to proceed under the Grievance Policy or Dignity at Work process. 13 June 2024 Mr Larkin spoke with the Complainant. Mr Larkin then emailed Mr Lyons to confirm that the complainant would like to proceed under Dignity at Work process. In the next number of weeks, Mr Lyons received advice from HR about how to proceed. On 24 June 2024 an Occupational Health Report to management was issued. The complainant was certified as being “medically unfit for work”. In response to the question that Mr Lyons had asked as part of the referral: “Are there any short-term adjustments to the work tasks or environment that would help to facilitate rehabilitation or an early return to work?” The doctor wrote: “Can be explored at a meeting between Ms Hayes Kelly and management.” On 2 July 2024 there was a call between Mr Lyons and the Complainant. The complainant had had her appointment with Occupational Health and wished to proceed through the Dignity at Work process. On 16 July 2024 Mr Brian Condra the Complainant’s SIPTU representative emailed Mr Lyons seeking a meeting. Mr Lyons was on leave until 6 August 2024. Despite the complainant having some weeks before indicated that she wished to proceed under the Dignity at Work Policy, Mr Condra in this email indicated that the complainant wished to have the Internal Complaints addressed as a grievance. On 25 July 2024 Mr Gavin Doyle, National Control Operations Manager met with the complainant and Mr Condra. Mr Doyle confirmed he would engage with the HR department regarding appropriate procedure. On 26 July 2024 Mr Doyle emailed the complainant seeking confirmation if she wanted to proceed with the Grievance or Dignity at Work Procedure. On 26 July 2024 the complainant emailed Mr Condra forwarding Mr Doyle’s email of 26 July 2024 for consideration. On 30 July 2024 the complainant emailed Mr Doyle stating she understood that HR would decide which policy her grievance should be reviewed under. On 31 July 2024 the complainant emailed Mr Doyle saying she wanted to proceed under the Dignity at Work Policy. On 2 August 2024 Mr Doyle emailed the complainant to confirm that the complaint would be addressed under the Dignity at Work Policy. He arranged a meeting off-site to discuss the process. On 4 August 2024 the complainant emailed Mr Shane Martin, Work Force Planning, with a timesheet and stated that her current medical certificate was in date with the timesheet. On 9 August 2024 Mr Doyle met with the complainant and Mr Condra of SIPTU to discuss the process that would occur under the Dignity at Work Policy, including the availability of mediation. Mr Condra raised the question of whether the complainant could be accommodated with different duties so that she could return to work. Mr Doyle suggested a number of alternative roles to which the complainant could temporarily be assigned, including a move to the NEOC office in Ballyshannon and a move to the intermediate care service in Tallaght. The complainant declined these options. On 12 August 2024 the complainant emailed Mr Doyle confirming that she wished for her complaints to be reviewed under Dignity at Work Policy. The complainant also declined the offer of mediation. On 13 August 2024 Mr Doyle emailed the complainant confirming receipt of the signed and dated Dignity at Work complaint. On 14 August 2024 the complainant emailed Mr Doyle confirming that her grievance be heard under the Dignity at Work Policy and requested it be forwarded to HR. On 14 August 2024 Mr Doyle emailed the complainant confirming the Dignity at Work Policy and confirmed that he was exploring return to work options for her. On 29 August 2024 the complainant emailed Mr Doyle and Mr Lyons requesting she be allowed to raise an “additional separate complaint” (in addition to the complaint she had submitted on 1 April 2024). On 3 September 2024 Mr Doyle emailed the complainant with details of how to proceed with the request of adding an additional complaint to her original complaint to be screened under the Dignity at Work Policy. Mr Doyle confirmed the temporary positions which had been offered to the complainant on 9 August 2024. He offered third option, namely a 9-5 role doing data inputting in the Rivers Building, Tallaght. On 10 September 2024 the complainant emailed Mr Doyle making a series of additional complaints to be combined with her Dignity in the Workplace grievance. On 13 September 2024 Mr Doyle met with the complainant and Mr Condra to discuss her return-to-work options. On 17 September 2024 Mr Doyle emailed the complainant offering a short-term role with the Quality and Patient Safety Adviser (“QPSA”) in the Phoenix Park in order to support her return to work. This was the fourth alternative role that had been offered to the Complainant. Mr Doyle asked the complainant if she wished to proceed on this basis. The complainant replied by email, but her reply was ambiguous. On 20 September 2024 the complainant emailed Mr Doyle and Mr Lyons requesting a copy of her Occupational Health Referral report. On 23 September 2024 Mr Lyons emailed the complainant attaching Occupational Health Referral Form. One of the questions that Mr Lyons has asked the Occupational Health Department was whether the complainant was fit to engage in the types of alternative roles that had been identified as being available. On September 27th, 2024, the Preliminary Screening of the Dignity at Work process concluded. The executive who conducted the screening, Mr David Sheehan, determined that “Although particular matters raised as part of the complaint may be more appropriately addressed under the nationally agreed HSE Grievance Procedure, the issues raised do come within the scope of the Dignity at Work Policy and therefore it is appropriate to progress this matter under the nationally agrees Dignity at Work Policy. … I will be advising management that … the matter should now progress to the Second Informal Procedure Stage 2.” Due to the significant amount of information that had been included in the Internal Complaints and the significant number of people identified in them, there was a large body of work required at this point to process all of the information appropriately for each respondent (including in that documents had to be redacted to ensure that each respondent only received information that was appropriate to themselves). On 9 October 2024 Mr Lyons emailed the complainant attaching the Occupational Health Referral form dated 7 May 2024 for the Complainant's records. On 10 October 2024 Mr Lyons emailed the complainant attaching the NAS Occupational Health form and offered the complainant the option to complete the form and return it to him. On 11 October 2024 the complainant emailed Mr Lyons querying if he was in today to leave the signed NAS Occupational Health form in reception. On 11 October 2024 the complainant emailed Mr Lyons asking if her complaint had been screened by the HSE and whether the investigation was underway. The complainant stated she would drop in the Occupational Health forms on Monday morning. On 10 October 2024 there was a call between Mr Lyons and the Complainant. On 14 October 2024 the complainant emailed Mr Lyons a follow up email to the email of 11 October 2024. On 14 October 2024 Mr Lyons emailed the complainant confirming that the complaint had gone through the screening process and had been deemed suitable to continue on the Dignity at Work pathway. Mr Lyons confirmed that a suitable point of contact would be appointed and would be in contact in due course. On 23 October 2024 an Occupational Health Report was issued by Dr Nataliya Kononenko. The complainant was certified as being “unfit to return to her role as outlined in the job description” and that her absence was likely to last “months rather than weeks”. In response to the following question that Mr Lyons had asked as part of the referral: “Arrangements have been made to facilitate Megan with work accommodation in a different Mon-Fri, daytime only, role in an off-site location to get her back in to the work environment. It is intended to start her back on a phased basis. Can you confirm that Megan is medically fit to return to such a role under the described conditions?” The doctor reported as follows. “In my opinion, Ms Hayes Kelly is unfit to return to her substantive post or to adjusted role yet” (sic). The effect of this report was that there was no reasonable accommodation that could facilitate the Complainant’s return to work at that time. On 24 October 2024 Mr Condra emailed Mr Lyons, copying the complainant seeking an urgent update on the Dignity at Work complaint and asked when they may expect a proposed Terms of Reference. On 24 October 2024 Mr Lyons emailed Mr Condra and the complainant advising that the complaint would move to the Secondary Informal Procedure Stage 2. On 29 October 2024 the complainant emailed Mr Lyons requesting a copy of her Occupational Health written report by Dr Nataliya Kononenko. Events during the cognisable period On 21 November 2024 Ms Cara O’Neill, the Complainant’s SIPTU representative, emailed Mr Lyons requesting clarification of action taken to date and copies of all relevant policies and procedures. Mr Lyons emailed Ms O’Neill on 23 November 2025 and 27 November 2025. On 27 November 2024 NAS Occupational Health emailed the complainant with a letter advising of her review Occupational Health appointment with Dr Kononenko. On 5 December 2024 Mr Lyons emailed Ms O’Neill confirming the progression of the Secondary Informal Stage 2 of the DAW Policy and that a nominated person had been assigned to deal with the complaint. Ms O’Neill did not reply to that email. On 8 January 2025 Mr Lyons emailed Ms O’Neill to arrange a call to progress the matter. Mr Lyons and Ms O’Neill spoke during the following week. Mr Lyons sought to establish if the complainant wished to proceed with the Second Informal Process or through the formal process. On 20 January 2025 Mr Lyons emailed Ms O’Neill asking whether the complainant how decided on how to proceed through the DAW process. Ms O’Neill responded that she would call Mr Lyons later if he would be free. On 4 February 2025 Mr Lyons emailed Ms O’Neill asking for an update on whether the complainant had decided on how to proceed through the Dignity at Work process. On 14 February 2025 Mr Lyons emailed Ms O’Neill following up on his previous email of 4 February 2025. On 24 February 2025 the complainant had a call with Ms Louise D’Arcy, Staff Officer, about Occupational Health. Ms D'Arcy emailed the complainant a new letter of appointment for Occupational Health for 3 March 2025. On 24 February 2025, a referral was made for an Occupational Health appointment for 3 March 2025. On 25 February 2025 Mr Lyons emailed Ms O’Neill following up on his previous email of 14 February 2025. On 28 February 2025 Ms O‘Neill emailed Mr Lyons confirming that it was the Complainant’s preference to proceed with the formal investigation. Mr Lyons responded that he would get this moving to the next phase immediately. On 28 February 2025 Mr Lyons emailed Ms Egan confirming that the complainant wished to proceed to a formal investigation. The same day Mr Lyons confirmed that he would get this moving to proceed to the next phase immediately. In the following days, Mr Lyons and Mr Doyle took advice from HR about how to proceed. On 6 March 2025 they completed forms requesting the appointment of an independent investigator and submitted them to the Respondent’s National Investigations Unit (NIU). On 12 March 2025 Mr Lyons emailed Ms O’Neill. He confirmed that the NIU had accepted the file and assigned a reference number. He indicated that Mr Richard Quinlan had been appointed as the Investigation Commissioner and was engaging with the NIU as appropriate to progress this. Ms O’Neill was well aware that the commissioner of an investigation does not conduct an investigation. Investigations are conducted by independent investigators appointed by the NIU. On 13 March 2025 Ms O’Neill replied to Mr Lyons to say “Thanks for the update. I know Megan will be relieved that things are up and running. I’ll await contact from Mr Quinlan and we can proceed from there.” Notwithstanding Ms O’Neill’s statement, several weeks later, on 3 April 2025, the complainant resigned from her employment. She lodged the WRC complaint on 4 April 2025. On 4 April 2025, the Respondent received a letter from Crushell & Co. Solicitors confirming that the complainant had filed complaints with the Workplace Relations Commission. Events after the cognisable period On 8 April 2025 a complaint notice was issued by the WRC to Mr Lyons, detailing the specifics of the complaints being made with a copy of the Complainant’s complaint form. She was offered a MS Teams meeting for the 17 July 2025 for the purposes of the investigation which was proceeding within the HSE. This meeting was declined by the Complainant. The scheduled WRC hearing took place on 14 August 2025. On 15 August 2025, Crushell & Co. issued a letter to Mr Doyle stating that the complainant would not be participating in any further part of the internal investigations process which was ongoing. On 16 September 2025, Crushell & Co. issued a letter to the Respondent stating that the complainant had recently received correspondence dated 9 September 2025 notifying her of a scheduled occupational health appointment on 30 September 2025. It was advised that the complainant has no intention of returning to the same workplace and that it was unnecessary for the complainant to attend the appointment. The investigation process began on 12 August 2025. Interviews were carried out between 12 August 2025 and 23 October 2025. On 29 October 2025 the six individual investigation reports were concluded by the investigator. Complaint under the Employment Equality Act 1998 as amended The first of the WRC Complaints has reference number CA-00070555-001. It is a complaint under the Employment Equality Act 1998 as amended (“the Act of 1998”). In her complaint form the complainant alleged that she has been discriminated against by reason of her disability; and the Respondent treated her unlawfully by discriminating against her in failing to give her “reasonable accommodation” for a disability. At the hearing of this matter on 14 August 2025 the Complainant’s counsel indicated that the Complainant’s complaint under the Act of 1998 is a complaint of alleged lack of provision of reasonable accommodation and that she is not pursuing any complaint of any other form of discriminatory treatment. Further to section 85A of the Act of 1998 the complainant must establish facts from which it may be presumed that there has been discrimination in relation to her before the burden of proof shifts to the Respondent to prove the contrary. Section 16(3)(b) of the Act of 1998 imposes certain obligations that require an employer to provide an employee with reasonable accommodation during the currency of an employee’s employment. The provisions of section 16(3)(b) are subject to other provisions of the Act of 1998, including section 16(3)(c). The provisions of the Act of 1998 that are relevant to this complaint were set out. The complainant has not made out any case of failure to provide reasonable accommodation in respect of a disability. In particular she did not, in her complaint form or in her submissions of 6 August 2025 or 8 August 2025: (a) identify what disability she relies on in bringing her case. (b) provide medical evidence of the existence of such a disability. (c) identify what reasonable accommodation she required in order to participate, advance, or receive training in her employment; or (d) identify any occasion on which is she sought any such reasonable accommodation.
We raised these omissions at the hearing of 14 August 2025. In a letter of August 14th, 2025, we asked a series of questions of the Complainant’s solicitor designed to give the complainant the opportunity to make out these fundamental components of her case. The Complainant’s solicitors did not answer these questions. Instead, in a submission of 1 December 2025, they paraphrased their earlier submissions without providing any additional clarity. In particular, the Complainant’s submissions of December 2025 do not identify what disability she relies on in bringing her case – rather they hint at the existence of “a disability arising from work-related stress” nor do they provide medical evidence of the existence of such a disability. Neither do they identify any occasion on which is she sought any reasonable accommodation during the cognisable period; or identify what reasonable accommodation she required in order to participate, advance, or receive training in her employment.
At paragraph 3.18, the Complainant’s submissions of 1 December 2025 makes the following argument: “The failure to address interpersonal mistreatment, refusal to conduct the recommended risk assessment, failure to provide safe or appropriate modified duties, and failure to implement any structured return-to-work plan together amount to a breach of section 16 of the Acts.” This argument is misconceived for several reasons. First, it is factually incorrect in several respects, including insofar as the respondent did address the complainant’s allegations of interpersonal mistreatment and did identify four separate alternative roles to which the complainant could be redeployed. Secondly, it is also a misunderstanding of the Act of 1998. Under section 16 of the Act of 1998 an employer’s obligation to provide reasonable accommodation is limited to providing measures that are needed in a particular case to have access to, or advance or participate in their employment, or to undergo training. Where an employee is too sick to work in any circumstance then there is no reasonable accommodation that can be provided for them. That was the importance of the report of the Respondent’s occupational health doctor in October 2024. When told that arrangements had been made to facilitate the complainant with a different role, the doctor reported that “In my opinion, Ms. Hayes Kelly is unfit to return to her substantive post or to adjusted role yet” (sic). The WRC Complaint under the Act of 1998 is therefore not well founded. Complaint under the Unfair Dismissals Act 1977 as amended The second of the WRC Complaints has reference number CA-00070555-002. It is a complaint under the Unfair Dismissals Act 1977 as amended (“the Act of 1977”). The complainant alleges that she was constructively dismissed by the Respondent. Dismissal in this case is denied. The complainant resigned her employment. To establish dismissal the complainant must demonstrate that she was dismissed within the meaning of the Act of 1977. It is settled law that, in order for a resignation to amount to a dismissal within the meaning of a paragraph (b) of this definition, a complainant must (before resigning) have exhausted the internal procedures that were available to her. In this case the complainant did not exhaust the internal procedures that were available to her. The Respondent made clear that the Internal Complaints would be addressed under the Respondent’s internal procedures. The complainant and her union representative on a number of occasions delayed the commencement of these processes. The complainant resigned her employment just as a formal investigation was about to commence. She refused to participate in that investigation. The investigation later concluded that her allegations of bullying and harassment were not upheld. The complainant has not met the test for “dismissal” set out in section 1 of the Act of 1977. She was not dismissed, whether unfairly or otherwise. Mr Ken Lyons gave evidence on affirmation. The witness stated that he had received the workplace level complaint, and initially there was a question as to whether it should be processed through the grievance machinery or the Dignity at Work processes. It took some time to establish which route the complainant wished to use and it changes from one to the other. The situation was further complicated by there being several respondents. The matter went to the second informal step and a nominated person, Ms Fahy was put in place. The following January and February he attempted to follow up on a number of occasions both formally by email and on the telephone and by text to the union official but could not get a reply. On February 28th, he was contacted by the union with an apology for the delay and confirming that it wished to have a formal investigation. The witness the advised the union on March 12th that the file had been sent to the respondent‘s internal investigation unit, and that the investigation Commissioner had no connection with any of the respondent’s relevant operational units. The witness stated that the union replied to this and there was a discussion about the investigation commissioner following which the union said it was happy to proceed. He confirmed that no other formal complaint was lodged in that period. When the complainant resigned the witness said that it came as a surprise and that he was not expecting it and he made contact with the union official seeking clarification. The union official told him that she had not been aware of the resignation and that she was no longer representing the complainant. In cross examination the witness was asked why there had been a referral to Occupational Health. He stated that this is the normal protocol in these circumstances and he understood that it was followed up by a meeting with the complainant. In reply to a further question, he said that there had been no stress risk assessment as this only arose in the context of a return to work. Likewise, he said, reasonable accommodation only arises also when a return to work is being prepared. Mr Gavin Doyle gave evidence on affirmation. This witness works as the National Control Manager and reports to the previous witness. He had met the complainant and her union representative and he looked at options to facilitate the complainant’s return to work. There were four options. There were two within the building which would not have required any interaction between the complainant and any alleged perpetrators. Another was at a different location in the Phoenix Park to which the complainant did not raise any objection although she said a friend of one of the alleged perpetrators worked there. The final option was a transfer to Ballyshannon. That concluded the witness evidence. In summation, the respondent addressed the equality complaint first. The complainant has not made out a prima facie case. It is not disputed that she had a disability, but the defining issue is whether the respondent was obliged to do anything, which must be proportionate. There is no prima facie case if the respondent has not failed to do something which it ought to have done, in relation to reasonable accommodation, for example. Indeed, the respondent went beyond its obligations. However, in the absence of a possible return to work no obligation regarding reasonable accommodation. Regarding the complaint of constructive dismissal, it is accepted that the delay in getting the investigation underway is an issue, but responsibility for this cannot be attributed to the respondent. There had been regular interaction with the complainant and her union and as given in his evidence, a pattern of Mr Lyons following up. The union accepted responsibility for some of the delay in February 2025. In any event the complainant did not resign until after the investigation was commenced and she had no reason to object to the investigation commissioner and indeed made no complaint about him. The complainant confirmed that she had lost confidence in the process and was going to resign anyway. She lodged no grievance about the conduct of the process before resigning, or about the investigation. |
Findings and Conclusions:
As will be clear from the submissions and evidence above, these complaints have a relatively long history. The elements of the narrative assume different significance for each of the two complaints. For example, alleged delays in processing the internal complaints go to the question of her unfair constructive dismissal complaint, while the allegations of failure to provide reasonable accommodation relate to the equality complaint and are a more distinct sub set of the narrative. Turning to the former issue of the constructive dismissal, the respondent in its submission above has set out a detailed timeline of events. These events, running over approximately a year from the initial complaint on April 1st, 2024, to the date of her resignation on April 3rd, 2026, will have a critical bearing on the reasonableness of the complainant’s decision to resign. Delay in the processing of a complaint can be a factor in determining this and for the purposes of the Decision, I propose to break the narrative down further and analyse it in a number of phases. The initial phase runs from the date of the complaint on April 1st, 2024, until June 13th when the complainant’s request for a formal investigation was confirmed by the respondent two days later. So, this accounts for the first two and a half months of the narrative (although it is also not insignificant in assessing delay that the complainant waited almost six weeks after the incident on February 16th, 2024, before making any complaint). A second phase may be said to have commenced in July when the complainant’s union clarified on July 16th that the matter was to be processed through the grievance machinery. Two weeks later the complainant herself changed this to a Dignity at Work complaint and this was followed on August 19th by a meeting to discuss the options. Some days later the complainant declined mediation and then she submitted a fresh set of complaints on September 10th. She was advised on September 27th that these were being screened and, following a query from her union on October 11th was told that they had been deemed suitable for further processing. There was a delay until November 21st when the union wrote for an update and the respondent replied twice in the ensuing days (on the 23rd and 27th). On December 5th, 2024, Mr Lyons emailed the union again confirming progress to the Secondary Informal Stage 2 of the Dignity at Work Policy and stating that a nominated person had been assigned to deal with the complaint. There was no reply. Apart from the unaccounted delay between October 11th and November 21st, which is not exceptional, there is no delay in this phase that can be laid at the respondent’s door. Nothing then happens until the New Year in what might be said to be the penultimate phase of the narrative.
There were several contacts between Mr Lyons and the union in early January and Mr Lyons sought to establish if the complainant wished to proceed with the Second Informal Process or through the formal process.
The respondent made a number of other efforts to progress things (On January 20th, and February 4th, 14th and 25th, 2025) to establish whether the complainant had decided on how to proceed through the Dignity at Work process.
Eventually, the union confirmed on February 28th, 2025, that it was the complainant’s preference to proceed with the formal investigation. Mr Lyons responded that he would get this moving to the next phase immediately. He acted on this internally that same day and requested the appointment of an investigator on March 6th. Six days later, on March 12th the union was advised that an investigation ‘Commissioner’ had been appointed. (A ‘commissioner’ is not the investigator).
The union replied the following day welcoming the appointment and the complainant resigned on April 3rd.
By way of a general comment this narrative highlights serious inadequacies in the processes for dealing with the operation of workplace grievances. It might be observed that the processing of grievances has become more important that their early resolution.
While I find that responsibility for this does not fall entirely, or even mainly on the respondent in this case it is nonetheless regrettable. Whatever the reason that a year can pass without a substantive step in a workplace grievance is a matter that should be a cause for great concern, whatever causes it. Delay is a common feature of such processes but in this case it is excessive.
There are some short delays which may be attributed to the respondent: the five weeks in October -November, for example and it is not entirely clear why things were not pushed on following the confirmation issues by Mr Lyons on December 5th, 2024. It appeared as if he then had all the authority he needed and it is not clear specifically why he felt the need to clarify again how the respondent wished to proceed.
While any contribution by the respondent to this is relevant as to whether the delays justified the complainant’s ultimate resignation (and it is only one factor in determining that) the complainant and her union also significantly contributed to delay.
The respondent acted promptly on receipt of the complaint in April 2024 and yet the ‘preliminary’ screening was not completed until September 27th. Various factors contributed to this delay; none of them directly attributable to the respondent.
The union clarified that it wanted the matter processed as a grievance on July 16th, the complainant herself contradicted this on the 31st. This is one of a number of occasions where there is a suggestion that the complainant and her union were not exactly ‘on the same page’.
The complainant declined mediation and no explanation was provided as to why.
There should have been an explanation. The idea that the consent-based nature of mediation gives rise to a right of casual veto is entirely incorrect and misunderstands the current general public policy in this area. In the civil sphere, outside the workplace, unreasonable refusal to engage in mediation (or unreasonable conduct within it) can give rise to serious adverse cost implications even for a subsequently successful litigant.
The recent High Court decision, in J. Burke & Associates Ltd. v O’Connell [2026] IEHC 314 considered the power of the courts to direct parties to enter into a mediation in respect of a dispute the subject of on-going legal proceedings. The Mediation Act 2017 does not apply to workplace disputes so it appears to be only in the workplace that a party exercising a veto is tolerated based on the misplaced idea that they have the right to do so. Parties who fail to avail of the mediation option and then subsequently rely on that as any part of a case in the WRC should expect to have to explain why they did so. Public policy leans heavily in favour of encouraging mediation as the preferred means of settling disputes. Then there is the period in early 2025 when the respondent was pursuing the complainant’s union for an answer on the processing and there is no doubt that, whatever about my slight reservations on the necessity of doing so, they did so diligently and cannot be held responsible for this period of delay.
The final phase is that involving the complainant’s resignation which took place on April 3rd, 2025.
At that point she was aware that the investigation process was in motion. While she stated in her evidence that she misunderstood the ‘Commissioner’ to be the investigator, (and she could easily have clarified this) she was nonetheless aware by then that it was underway.
She had a flimsy objection to the commissioner on the basis that he had some connection with people referred to in the complaint, and this is in keeping with other decisions made by the complainant which contributed significantly, and unnecessarily to delay.
But this more forensic review of the timeline illustrates that blame for the delay also lies at the door of the complainant and her representatives. There was indecision about which processing route she should follow which took several months to resolve, there was the submission of a second tranche of complaints some five and a half months after the first complaint, and there was the refusal to consider mediation. All of this adds up to a considerable contribution to the delay in processing the matter.
Finally, there was the delay in early 2025 in getting a response from the complainant’s union despite Mr Lyons’ best efforts. As already noted, there is some suggestion from the documents and Mr Lyons’ oral evidence that the level of communication between the complainant and her union was not what it should have been. But again, this is not something that can be laid at the respondent’s door.
The other critical issue in relation to constructive dismissal is whether the complainant exhausted all options to resolve her complaint before resigning.
To be clear, this refers not to her original complaints of April and September 2024 but to the complaint actually giving rise to her resignation which, according to her evidence and submissions was based on alleged delay in processing those complaints.
She was fully aware of the option to do so. In her oral evidence she stated that she did think about a grievance over the failure to process her 2024 grievances ‘but decided it would be pointless.’
Sadly, for her complaint of constructive dismissal this was a fundamental error of judgment. It is also clear from Mr Lyons’ oral evidence that her union official knew nothing of either her resignation or intention to resign and it appears she acted without taking professional advice.
In summary, as can be clearly seen from the analysis above the complainant displayed no insight into her own contribution to the delay.
The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment. It is, after all, a breach of a legally binding contract. When an employer wishes to terminate the contract of employment, there must be cause, a fair process and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings. The most common source of complaints under the Act is, of course, when an employer has terminated the employment, and the criteria just referred to are then the key tests as to whether the dismissal has been a fair one. On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning. In most, if not all cases an action for breach of the employment contract is unlikely to arise. A different situation arises when an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter. In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340) There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having substantially utilised the grievance procedure to attempt to remedy her complaints The Supreme Court has said that. ‘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.’ Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61 In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to open an assessment of whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation. In other words, has it been at a level and of a nature that represents a repudiation of the contract of employment. In relation to the employee’s behaviour this critically refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery. These authorities are key considerations in assessing any complaint of constructive dismissal. There is no dispute about the complainant not having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’ as referred to in the quote from Redmond above. Her evidence was that she saw no point in doing so. I have reviewed the authorities submitted by the complainant In OfficeAdministratorvAManufacturerADJ-00026208, it was held that, in the absence of a clear grievance procedure, and given the breakdown in trust and confidence between the parties, there was no need to exhaust the grievance procedure. However, that does not apply in this case. The respondent had a grievance procedure and the complainant was availing of it.
Likewise, the factual matrix in both Beglan v. Scanomat IrelandLimited UD688/2012 and Schonfield v. West Wood Club Clontarf Ltd UD1013/2013, where, for example there was no one the complainant could bring their grievance to is demonstrably not applicable to this case or respondent.
Similar to the case above in the case of Allen vs. Independent NewspapersUD641/2000, the alleged perpetrators of the bullying and harassment of the complainant giving rise to the grievance were senior managers to whom the complainant reported directly. There is no suggestion of that in this case and, as has been set out above, her case was being processed through the respondent’s machinery.
In those circumstances, and given that I cannot not find a sufficient basis to impugn the respondent‘s conduct, she has not made out a case that she was constructively dismissed and that complaint fails. Turning more briefly to the complaint under the Employment Equality Acts, this is a complaint of a breach of the Acts on the basis of a failure to provide reasonable accommodation for the complainant’s disability.
The respondent has submitted that the complainant has not made out any case of failure to provide reasonable accommodation in respect of a disability. In particular she did not, in her complaint form or in her submissions of 6 August 2025 or 8 August 2025: (a) identify what disability she relies on in bringing her case. (b) provide medical evidence of the existence of such a disability. (c) identify what reasonable accommodation she required in order to participate, advance, or receive training in her employment; or identify any occasion on which is she sought any such reasonable accommodation.
Interestingly, it is difficult to find particular examples of this alleged failure in the written submission or evidence of the complainant.
Where it refers to reasonable accommodation (see complainant submission above) it proceeds to quote the complainant’s recitation of the facts giving rise to her initial complaint regarding the events of February 16th. 2024. This of course has nothing to do with this specific equality complaint.
I could find no reference to this aspect of her complaint in my notes of her oral evidence either.
The respondent has further submitted regarding section 16 of the Act of 1998 that the obligation falling on an employer to provide reasonable accommodation is limited to providing measures that are needed in a particular case to have access to, or advance or participate in their employment, or to undergo training. Where an employee is too unwell to work in any circumstance then there is no reasonable accommodation that can be provided for them. The medical evidence in October 2024 was that, in response to being told that arrangements had been made to facilitate the complainant with a different role, the doctor noted’ “In my opinion, Ms. Hayes Kelly is unfit to return to her substantive post or to adjusted role yet” . The complainant was also offered a number of alternative options to return to work at different locations and while one (redeployment to Ballyshannon) was impractical at least one other was rejected on the flimsiest of ground (that a friend of one of the alleged perpetrators worked there).
Accordingly, no prima facie case of a breach of the Act has been made out and it does not succeed.
For the reasons set out above, neither of the complaints is upheld
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Decision:
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.
.Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the reasons set out above Complaints CA-00070555-001 and 002 are not upheld.
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Dated: 29th July 2026
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Equality; Reasonable accommodation, Constructive Dismissal |