Complainant

Respondent

Parties

Katie  Bermingham

Cqzp Ltd

Representatives

Self-Represented

Mr. Rory Kennedy BL, instructed by Powderly Solicitors LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00069686-001

03/03/2025

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

CA-00069686-002

03/03/2025

Complaint seeking adjudication by the Organisation of Working Time Act 1997

CA-00069686-003

03/03/2025

The Complainant commenced Employment on 10th October 2023. At all relevant times the Complainant’s role was described as that of “deli assistant”. The Complainant was a permanent, part-time member of staff, in receipt of an average weekly payment of approximately €200 per week.  The Complainant resigned her employment on 12th December 2024.

On 3rd March 2025, the Complainant referred the present complaints to the Commission. Herein, she alleged that the was obliged to resign her employment following the imposition of a fundamentally unfair disciplinary sanction upon her.   In addition to the same, the Complainant submitted that the Respondent did not provide her full break entitlement and did not notify her in writing of a change to her terms and conditions of employment. By response, the Respondent denied each of these complaints, submitting that she resigned her employment without recourse to the relevant grievance procedures. They further submitted that the Complainant received all statutory breaks and statements of terms of employment.

A hearing in relation to this matter was convened for, and finalised on, 1st September 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaint, while a manager of the Respondent gave evidence in defence. All evidence was given under oath or examination and was opened to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. While the complaint under the Organisation of Working Time was referred under alternative legislation, the Respondent raised no issue with the same being considered under the present Act, and the complaint reference has been amended accordingly.  

The Complainant stated in evidence that she commenced her employment with the Respondent on 10th October 2023. At all material times, the Complainant was employed as a Deli Assistant. While the Complainant initially worked on a full-time basis, she subsequently transitioned to part time hours to accommodate the requirements of a college course. The Complainant further testified that she typically took her breaks in her vehicle within the parking area. During these intervals, she was occasionally requested to assist at the deli counter during busy periods. She stated that she provided this assistance as a team player without seeking additional compensation. Furthermore, the Complainant stated that her duties were expanded beyond her role as a deli assistant to include verifying the operating shop tills, operating petrol pumps, and accepting deliveries on behalf of management.

On 3rd October 2024, the Complainant was requested to attend an informal meeting with a member of management. During this meeting, the manager instructed the Complainant to take her breaks in the public seating area adjacent to the deli, to ensure she was more accessible during busy periods. In evidence, the Complainant stated that she broadly complied with this instruction thereafter. Subsequently, on 20th October 2024, another member of management entered the staff breakroom and alleged that the Complainant had failed to follow the previous instruction regarding her break location. Shortly thereafter, on 24th October 2024, the Complainant was called to the manager's office. At this meeting, the manager presented and read aloud two documents. The first, dated 22nd October 2024, referenced the conversation held on 3rd October 2024; however, the Complainant maintained that this document was an inaccurate reflection of that meeting. The second document described itself as a formal first written warning.

The Complainant stated that the Respondent’s disciplinary procedures require that employees be notified of potential sanctions and invited to relevant meetings in relation to the same. She asserted that she was denied the right to accompaniment and was not afforded the opportunity to defend herself against the accusations. Following this meeting, the Complainant requested a copy of the employee handbook and the break policy via email.

Thereafter, on 8th November 2024, the Complainant attempted to discuss these concerns with the manager informally. In evidence, the Complainant stated that the manager in question became openly hostile and refused to engage with her during this meeting. Consequently, on 12th November 2024, the Complainant sent an email outlining her grievances regarding the perceived unfairness of the disciplinary action. This grievance took the form of a “right to reply” as provided for in the Respondent’s disciplinary procedures. 

The Complainant’s email set out her issues regarding the Respondent’s failure to abide by the Organisation of Working Time Act regarding her breaks and the procedural unfairness of the disciplinary sanction imposed on her. This correspondence received no reply or acknowledgement. Subsequently, the Complainant stated that her working hours were reduced to a total of six hours per week, representing a significant decrease from her previous hours and overtime. The Complainant stated that she felt humiliated and isolated and was unwilling to remain in an environment where she felt disrespected. Furthermore, she noted that her earnings had been reduced to a level that did not cover her commuting costs.

The Complainant stated she had no alternative but to submit her notice, which was not acknowledged by the Respondent. She completed her notice period and her employment concluded on 22nd December 2024. In her submission, the Complainant maintained that she was subjected to an oppressive and unfair disciplinary process which failed to respect her rights or the principles of natural justice. She asserted that she complied with the Respondent’s policies by exercising her right to reply, yet the Respondent elected to ignore her concerns. On this basis, the Complainant stated that she was entitled to resign and consider herself to have been constructively dismissed. Additionally, the Complainant stated that she did not receive an amended statement of terms within the allotted time following her transition to part time hours. Finally, the Complainant submitted that the Respondent was in breach of the Organisation of Working Time Act by failing to schedule statutory breaks.

The Respondent denied each of the complaints raised by the Complainant. In this regard, it was submitted that the Complainant was provided with a full statement of terms of employment in accordance with the Terms of Employment (Information) Act 1994. The Respondent further contended that the Complainant resigned voluntarily and, consequently, could not establish the necessary conditions for a claim of constructive dismissal under the Unfair Dismissals Acts.

In this regard, the Respondent accepted that the Complainant commenced full-time employment on 9th October 2023, and a complete suite of contractual documentation was issued to her seven days later, 16th October 2023. Subsequently, in September 2024, the Complainant requested part time hours to facilitate a college course, a request which the Respondent accommodated without objection.

In October 2024, the Complainant was invited to a routine, informal performance review. During this review, the Complainant was requested to take her breaks in the on-site seating area to facilitate any operational contingencies that might arise. The witness for the Respondent stated that such issues would not occur daily but could arise in certain situations. Thereafter, on 22nd and 24th October 2024, the Respondent invited the Complainant to meetings to discuss specific performance issues. Most notably, the Respondent alleged that, contrary to reasonable instructions, the Complainant did not take her breaks in the designated on-site area but instead took them elsewhere, which placed the team as a whole in some difficulty. Given that the Complainant had recently agreed to take her breaks in this area, and in circumstances whereby he had refused to do so, the Respondent elected to issue a warning in accordance with the disciplinary procedures in relation to this issue.

On 27th October 2024, the Complainant exercised her contractual right of reply as provided for within the Respondent's internal procedures. This process allowed the Complainant to raise issues regarding any disciplinary sanction imposed upon her. The witness for the Respondent stated in evidence that he was in the process of reviewing this reply when the Complainant elected to resign. The resignation stated that the Complainant intended to work whatever notice period was required by her contract.

The Respondent noted that the resignation letter itself did not raise any of the issues mentioned by the Complainant in her evidence; rather, it stated that the Complainant thanked the Respondent for the experience and training received. As the Complainant raised no formal grievance in accordance with internal procedures, the Respondent assumed she had simply chosen to resign. The Complainant worked her notice period in accordance with her contract and subsequently terminated her employment.

The representative for the Respondent stated that the Complainant's contract outlined various procedures and avenues for complaints to be raised prior to a resignation. Specifically, the Respondent referenced a grievance procedure which the Complainant failed to utilise. Given that the resignation letter contained no mention of a grievance, the Respondent submitted it was reasonable to assume the Complainant resigned for her own reasons. While this was her right, they submitted she could not maintain a claim for constructive dismissal in these circumstances.

Regarding the complaint under the Organisation of Working Time Act, the Respondent submitted that the Complainant was never instructed to work during her breaks. They stated she was merely asked to volunteer assistance during sudden customer surges, after which her full break would recommence. The Respondent submitted that such ad hoc cooperation is common in retail environments and does not negate the statutory break entitlement.

The present case concerns the Complainant’s submission that she was obliged to resign her contract of employment and considered herself constructively dismissed following a fundamentally flawed and unfair disciplinary process. The Complainant submitted that she raised these issues with the Respondent on at least two separate occasions, yet the Respondent took no material steps to rectify the matters in question.

In denying this allegation, the Respondent stated that the invocation disciplinary procedure was justified, that the process broadly respected the Complainant’s natural and contractual rights and that the process had not been finalised by the date of the Complainant's resignation. They further contended that the Complainant resigned without availing of the internal grievance procedures and that, as such, her complaint of constructive dismissal could not succeed.

In this regard, Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal in the following terms,

“…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”

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an Adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

In order to succeed in a complaint of constructive dismissal, to succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that,

“…it is reasonable to expect that the 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 Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that,

“…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

And,

“…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

Regarding the present factual matrix, both parties are in agreement that the Complainant's employment was without significant incident until 3rd October 2024. On this date, the Respondent requested that the Complainant take her breaks in the public seating area to assist with potential customer surges that might occur. Subsequently, on 24th October 2024, a meeting occurred where the Complainant was presented with a document describing itself as a first written warning. This was issued on the basis that she did not occupy the common area during her break. The Complainant was also presented with a document raising various performance issues, including allegations regarding task sharing and a purported failure to act as a team player.

Having considered this chain of events, the Complainant is correct in her assertion that she is entitled to an uninterrupted, scheduled rest period in accordance with the Organisation of Working Time Act 1997. In this regard, “rest period” is defined in Section 2(1) as, “any time that is not working time”. Thereafter, “working time” is defined as any time that the employee is either, “at his or her place of work or at this or her employer’s disposal” and “be carrying on or performing the activities or duties of his or her work.”

In the decision of Tribune Printing and Publishing Group -v- Graphical Print and Media Union, DWT 6/2004, the Labour Court held that not only is there an obligation on an employer to ensure that their employees receive rest break, but also that,

“…employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks thus protecting his health and safety, does not discharge that duty”

Having regard to the foregoing authorities, it is clear the Respondent’s position that they may interrupt an employee’s break to attend business needs is in contravention of their legislative obligations under the Act.

Furthermore, the Complainant is again correct in her observations regarding the procedural failings of the disciplinary process. In this respect, it is apparent that she was not invited to an investigation meeting, was not provided with information regarding the allegations and did not have an opportunity to meet the decision-maker in advance of the sanction and advocate on her own behalf. It is further apparent that vague, unsubstantiated matters were also raised that allowed for no substantial right to reply.

During the meeting of 8th November, the Complainant reiterated her right to uninterrupted breaks and set out her concerns regarding the disciplinary process adopted by the Respondent. By response, the Respondent maintained that her availability at all times was required by the business. Following this, the Complainant issued formal correspondence on 12th November 2024 setting out, in detail, her concerns regarding the breach of statutory break entitlements and the procedural issues of the disciplinary process. She indicated that the matter might be referred to the present forum if left unaddressed. No substantial response was issued by the Respondent, who claimed the matter was under consideration when the Complainant resigned on 10th December 2024. While the Respondent is correct in that the letter of resignation did not reference the issues that led to her resignation, an email issued at that time again outlined the same in some detail.

In this regard, it can be seen that the Complainant notified the Respondent of the issues leading to her resignation twice in writing and once verbally. Consequently, it is clearly the case that the Respondent was fully aware of the issues in question and the Complainant’s concerns in this resepct. It is also the case that the Respondent took no material steps to address the issues in question. In this regard, any reasonable employer would be expected to offer the Complainant that use of the grievance procedure in an effort to address the issues in question once the same became known.

In the matter of McKenna v Pizza Express Restaurants Ltd [2008] 19 E.L.R. 234, the Employment Appeal Tribunal found that an unfair disciplinary process may, in certain circumstances, ground an application for constructive dismissal. Nonetheless, it is also apparent that being subject to an unfair process does not automatically give rise to a valid complaint of constructive dismissal. In such situation, the surrounding circumstances must be examined to determine whether the conduct of the Respondent, as a whole, was such that the Complainant was entitled to resign their employment and consider themselves to be constructively dismissed.

Regarding the present case, it is clear that the disciplinary procedures was unambiguously conducted in contravention of the Complainant’s right to fair process. In addition to the same, the Complainant raised her concerns about the subject of the procedure, being the instruction to take breaks in the public area, and the procedure adopted on multiple occasions. On each occasion the Respondent demonstrated no apparent appetite to rectify, or even address, the issues raised. The Complainant allowed ample opportunity for such rectification, yet the Respondent steadfastly failed to engage with her on this basis. Having regard to the forgoing, I find that the conduct of the Respondent was such that it entitled the Complainant to resign her employment on the basis of constructive dismissal. In these circumstances, I find that she was unfairly dismissed within the meaning of the Act, and her complaint is deemed to be well-founded.

CA-00069686-001 – Complaint under the Unfair Dismissals Acts

I find that the dismissal of the Complainant was unfair for the purposes of the impleaded Act.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate form of redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate her losses. In this regard, the Complainant stated that the manner of her dismissal had a detrimental impact upon her. Nonetheless, she accepted that she found alternative employment some time following her dismissal. In this regard, she submitted that she sought an alternative role almost immediately, but a part-time role was difficult to secure.

Having considered the foregoing, I award the Complainant the sum of €3,000 in compensation.

CA-00069686-002 – Complaint under the Terms of Employment (Information) Act

Regarding this complaint, the Complainant alleged that she did not receive an update to her contract on her change from full-time to part-time hours. In this regard, the Complainant contract of employment states that,

“The normal working week will run from Monday to Sunday, as set out in the weekly roster”.

In this regard, Section 3(1)(i) of the Act provides that statements of employment must refer to, “any terms or conditions relating to hours of work.” Thereafter, Section3(1A)(e)(i) of the Act (as amended) further provides that an employer must provide a statement of,

“…the number of hours which the employer reasonably expects the employee to work (i) per normal working day, and (ii) per normal working week.” 

Having regard to the foregoing, it is apparent that the Respondent is in breach of this provision, and the complaint is deemed to be well-founded. Regarding redress, I award the Complainant the sum of €200 in compensation.

CA-00069686-003 – Complaint under the Organisation of Working Time Act

I find that the complaint is deemed to be well-founded. Regarding redress, I award the Complainant the sum of €500 in compensation.

Disciplinary, Constructive Dismissal, Uninterrupted break.