Complainant

Respondent

Parties

Pat  Duff

Integrity Security Limited

Representatives

Self-Represented but assisted by Ms C Woods

Mr D Brennan, Solicitor of  Mason Hayes & Curran LLP

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-00070656-001

08/04/2025

The issue in contention concerned an alleged Unfair Dismissal of the Complainant, a Security Officer by the Respondent Security Company. 

The employment began on the 19th of June 2021 and ended on the 25th of the March 2025.

The Rate of Pay was stated by the Complainant to have been a gross of €2,700 per month for a 48-hour week.

The Complainant was self-represented but assisted by Ms C Woods.

He gave a detailed Oral Testimony supported by copy e mail /exchanges with the Respondent. He had been employed at an Asylum Seeker Accommodation Centre. The Security Contract had been awarded, following Tenders, to a different competing Security Company.

On the 24th March 2025 the local Supervisor, Mr ID, accused the Complainant of trying to “poach” staff to join the new Company. This allegation was denied and a heated discussion followed between the two men. On the 25th March 2025, Mr ID, threatened to assault the Complainant.

The Complainant took off his uniform jacket , placed it on the table and left the employment.  The work atmosphere with Mr ID had become completely intolerable. The Complainant felt that he was left with no option but to leave the job.

The incident had a long lasting detrimental effect on him as regards his mental well-being with loss of sleep and anxiety attacks being experienced due to the severity of the negative actions of Mr ID.

On this basis he was seeking redress for a Constructive Dismissal under the Unfair Dismissals Act.

The Respondent was represented by Mr Brennan, Solicitor from MH & C. A detailed written submission was provided supported   by Oral Testimony from Mr McN, Company Manager.

The Respondent resolutely denied any basis for a Constructive Dismissal complaint.

The Complainant had taken up employment with the replacement Security Company on the 24th March 2025, the day before his alleged Dismissal.

There was no doubt that he had a heated discussion with Mr ID but nothing of significance as regards a constructive Dismissal claim. Witness evidence was provided by signed statements that confirmed that the Complainant had stated clearly in, ear shot of witnesses, that “He was quitting”.

The conversation was heard to include the Complainant’s complaint against Mr ID that had favoured another employee rather than the Complainant as regards to a recent Supervisor promotion.

Mr Brennan pointed out that there was absolutely no basis for a Constructive Dismissal claim. There had been no Breach of Contact and No Unreasonable Behaviour by the Respondent - the standard Constructive Dismissal legal Tests. Furthermore the Complainant had not at any stage invoked the Company Grievance procedures.

The plain fact was that that the Complainant had accepted employment with the Competitor Security Company the day before the incidents on the 25th March 2025. This was stated on his Complaint Form with the WRC.

The Complaint had no basis.

Cross examination between the Parties took place which reinforced their views set out above.

Mr Brennan cited extensive case law in support of the Respondent case, principally the Supreme Court in Berber v Dunnes Stores Ltd [2009] IESC 10 , Cedarglade Ltd v Hilban UDD 1843 and Western Excavating v Sharp [1978] 2 WLR 344.

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.”

However, Legal precedents notwithstanding, all cases rest on their own factual and evidential matrix and these are examined below.

3:2       Consideration of evidence presented both Oral & Written

To  best evaluate the evidence, the Three standard Legal “Tests” are a useful template – these are

·       Breach of the Employment Contract

·       “Unreasonable Behaviour” by either Side

·       Use of Employment Procedures /before and after the ending of the employment.

3:2:1      Breach of the Employment Contract

This is generally accepted to be a major breach of the contract - such as Non Payment of Wages or Holiday Pay or asking an Employee to carry out duties for which he/she is clearly not suitable . It has to be a very substantial ,very bad, breach that no Party could tolerate.

It was accepted in this case that Wages/Holiday Pay/Sick Pay was paid. The Respondent had well defined HR procedures.

Overall, the Adjudicator could not find a Breach of Contract sufficient to support a Constructive Dismissal claim.

3:2:2       “Unreasonable Behaviour” by either Side

Legal precedents define “Unreasonable Behaviour” as behaviour that is so bad, outrageous,  that no normal person could accept it.

In the evidence presented, it was clear that an altercation had taken place on the 24th/25th March between the Complainant and Mr ID.  Written witness statements were provided. Mr McN ,the Manager gave evidence of contacting the Parties involved, in the row, soon afterwards. In his oral Testimony the Complainant accused Mr ID of threatening to use physical violence unless the Complainant stopped the alleged “Poaching of Staff” to the new contractor of which he was, by then, an employee. There was also an issue over selection/non selection of the Complainant for a previous promotional position. Hot words between employees and Supervisors are not uncommon. They do not justify a Constructive Dismissal complaint.

All told the Adjudicator could not find in the evidence presented “Unreasonable Behaviours” so very bad as to support a Constructive Dismissal complaint.

3:2:3        Use of Employment Procedures /before and after the ending of the employment

In the evidence the Adjudicator failed to see any use of Grievance /Staff complaint procedures.

This is a major obstacle to a Constructive Dismissal complaint.

3:3      Adjudication Summary & Conclusions

Taking the three Constructive Dismissal Tests above the Adjudicator failed to see sufficient grounds to support a complaint.

The Complaint fails.

There was no Constructive Dismissal.

Constructive Dismissal