Complainant

Respondent

Parties

Sharon  Darcy

Project Fashion Project Fashion

Representatives

Self-Represented

Kevin Callan,  Callan HR Consultants

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-00070671-001

08/04/2025

The issue in contention concerned a complaint of Constructive Dismissal from a Head Tutor against a Fashion & Training Consultancy. The employment began on the 18th January 2022 and ended on the 15th October 2024.

The rate of pay was stated by the Complainant to have been €15 per hour for a basic 8 hour week although this could vary depending on the time of year, School holidays etc.

The employment was as a Tutor on Children’s courses, Holiday camps etc in Sewing and Fashion Design.

The Complainant was self-represented. She gave an extensive Oral Testimony supported by a detailed Written Submission. She had finally resigned on the 15th October 2024 as the work became, she alleged, so toxic for her general health especially her mental health situation.

She summarised her positon across six headings

as allegedly being

·         Stress and mental health issues caused by a dangerous and unsupported work environment

·         Lack of HR Transparency

·         Lack of training in First Aid and Manual handling

·         Requirement to provide work materials for students from her own resources

·         Climate of acceptance of casual Bullying and Harassment of Staff

·         Major alleged dishonesty as regard Pay and Working Conditions.

On the 17th September 2024 she had felt compelled to resign her positon and sent a lengthy e mail to this effect to the Respondent. At this time, she was on Certified Sick leave. The two main Directors of the Respondent had then telephone her on or about the 18th September. The call had lasted over two hours and had clearly indicated that she would receive a pay rise to € 17 immediately on her return to work. Her Son had been a witness to the call as it was on Speaker.

Further communication then took place with the HR Manager, Ms NC, regarding the terms of her, the Complainants, Return to Work. The HR Manager in e mail correspondence made it clear that the return to work would be on the basis of the existing €15 per hour and a wage rise to €17 would have to follow normal processes of Annual reviews etc. The Complainant took this to be a major breach of faith with the Respondent and reaffirmed her resignation on the 15th October 2024.

 In her Oral testimony the Complainant cited numerous examples of alleged bad practices, health and safety issues, use of unqualified students as Tutors by the Respondent in the running of Children’s courses and a general lack of support for the Head Tutor in difficult Stafff Issues. A promotional video had been made with the major assistance of the Complainant but in the final version she had been edited out in favour of a more junior staff member. This was a major humiliation in front of all Staff. It was reflective of the Respondent’s lack of respect for the Complainant and the hard work she was doing on a day-to-day basis to keep the Courses running.

Supporting witness were called including the Complaints’ Adult Children who testified of the stress levels alleged suffered by the Complainant while in the positon. Parents of Children who had attended Courses and Centre Mangers also provided written statements very favourable to the Complainant.

The Respondent was represented by Mr Callan, a HR Consultant. Both Main Directors, Mr K, Mrs K and the HR Manager, Ms NC, also attended to give evidence.

Mr Callan argued that the Respondent had never treated the Complainant with anything less that proper procedures. The Company had the HR Duo facility available to all employees. The Complainant could have easily raised any grievances she had via this facility. None were ever raised. The Complainant was a very valued employee and had contributed largely to the Organisation. All steps were taken to ensure that she had been supported at all times. The two-hour phone call to her on the 18th September reflect her valued status as a key employee. It had been hoped that the two-hour call would reassure the Complainant that any issue she had would be dealt with speedily and appropriately. The role of the HR Manager was central for Company administration. The question of the rate of pay had to follow normal process. There had been a discussion during the call of a possible rate of €17 per hour but never a firm commitment as was alleged by the Complainant

3:1        The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ 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 other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

In plain English, drawing on the above legal summary, a Constructive Dismissal case rests on three factors, 1) the Status of the Employment contract, 2) the alleged or otherwise “Unreasonable” Behaviour of the Parties and 3) the use /non-use of available Employment/HR Procedures.

However, Legal issues notwithstanding, all cases depend on their own evidence, and this will be considered below

The Constructive Dismissal template will be used as a format. It has to be noted that all Legal precedents point to Constructive Dismissal as a “High Bar” for all Complainants.

3:2      Consideration of evidence, both Oral testimony and Written Submissions

3:2:1       The Employment Contract.

It appeared that none was ever in existence or certainly none was presented in evidence.

It has to be noted that this was a clear breach of the Terms and Conditions of Employment (Information) Act of 1994 which would allow for a Penalty of up to four weeks’ pay be imposed on the Respondent.  (It has also to be noted that the Complainant did not lodge a complaint under this Act and accordingly cannot be considered by the Adjudicator.)

The absence of a Contact makes consideration of a Breach of Employment Contract, which has to be a serious breach, under the Unfair Dismissal Act 1977, a matter for Adjudicator judgment and consideration of likely Probabilities.  The key and most common breach of the contract in these cases is essentially a failure to pay wages or imposing on the Complainant duties that are completely at variance with their agreed duties.

On the basis of the Oral testimony from both Parties there did not seem to have been any serious breaches here. Wages were paid and the duties were those of a Tutor.

Legally as a Constructive Dismissal argument it does not support the Complainant case for Constructive Dismissal.

3:2:2       Unreasonable Behaviours by the Parties

The accepted practice of “Unreasonable Behaviours” in Unfair Dismissal cases has to be that it is “Unreasonable” – it has to be very bad indeed - the English word “Egregious” is often used.

From the Oral testimony it was clear that the running of the Children’s courses was often challenging. The physical set up of Rooms, Heavy Sewing Machines, Fashion Students, not familiar with Sewing Machines, being used as Tutors and requiring additional Training/Oversight from the Complainant were a feature of the work. However, it a major judgment call for the Adjudicator to assess whether or not these were “Unreasonable” Practices. On balance the view has to be that the job was challenging but not to an extent as to justify a resignation.

It is important to note that the Complainant supplied extensive and very complimentary References from Parents as to her character and excellent work ethic.

The lack of any Training on First Aid/Health and Safety was a critical factor particularly as the job involved essentially Children. The Complainant gave evidence of being given “Epi Pens” by Parents that she did not know or had never been trained to use.

Likewise, the “Clontarf” staff incident was bad but again not such as to justify a resignation.

The question of the disputed Promotional Video was not really an Employment matter but was very upsetting to the Complainant. She felt that it had shown a complete lack of respect for her position and her obvious commitment. A subsequent video film had reflected her position more accurately.

The major issue was the dispute over the rate of pay, €15 or €17 per hour on the resumption of work following the Sick Leave. The major source of the Complainant’s grievance was the alleged “breach of faith” between what was alleged promised by the Directors and what the HR Manager actually was prepared to deliver. The Complainant relied on a verbal corroboration from her son who had listed in to the call. The Respondent argument was that any conversation with the Directors would also have to go via HR as to do otherwise would make any good management of a Company very difficult.

Unfortunately for the Complainant the overall Adjudication view is that the job was challenging but nothing so bad, as incidents taken separately, as to justify a Resignation was evident. However, the cumulative effect has to be considered in coming to a final decision.

Most of the issue raised were properly the subject of employee grievances that normally would have been processed via Company procedures.

This takes us to the next Constructive Dismissal test - the use/non-use of Employment Procedures.

3:2:3       Use of Employment procedures.

The HR Manager, Ms NC, gave Oral Testimony and submitted copies of Procedures available. The HR System HR DUO was used in the Company. Ms NC had encouraged the Complainant to utilise the Procedures in the exchange of correspondence between the first Resignation letter and the Final Letter of the 15th October 2024.

The Complainant under sworn Oath/Affirmation maintained that she was totally unaware of these procedures and certainly had never been trained on their use.

3:3       Adjudication Summary and Conclusions

As stated above constructive Dismissal is a “high bar” for any Complainant.

In this case there are a number of issues to be considered. In the Complainant’s favour are the factors that there was no written contract of employment and all the sworn evidence (supported by witness statements and the Testimony of her relations) pointed to a somewhat inefficient approach to the job on the part of the Respondent resulting in the Complainant having to “Fill Gaps” on the day. The Complainant was without doubt an excellent worker who gave her all to the job. She did however have some background medical issues that made life somewhat challenging for her. The fact that she did not drive and had to rely on Public Transport for herself and considerable necessary course baggage also handicapped her.

The “Unreasonable” Behaviours arguments was open to considerable Adjudicator consideration. None of the incidents complained of were in themselves, taken in isolation, supportive of a Constructive Dismissal. However, if taken cumulatively, they were persuasive in favour of the Complainant. The fallout from the two-hour phone Call and the dispute over whether or not it was €15 or €17 Euro per hour was telling. The Complainant saw this as a major “Breach of Faith” that there was no coming back from.

On the Respondent employer side was the total absence of any use by the Complainant of HR Duo procedures to process Grievances.

In total review and having considered all the evidence both Written and the Oral Presentation from all the Parties the Adjudication view is that a Constructive Dismissal has been proven but at the very marginal point.

Redress will have to reflect this marginal point.

Unfair Dismissal, Constructive Dismissal