Complainant

Respondent

Parties

Ms Zara Wachuku

Mr Derek Merrins

Complainant

Respondent

Anonymised Parties

Representatives

Mr Setanta Landers Solicitor Setanta Solicitors

Mr Hugh O’Donnell BL instructed by Murphy Gibbons Solicitors

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-00071703-001

20/05/2025

This matter came before the Workplace Relations Commission dated 20/05/2025 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977 (Constructive Dismissal).  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 19/12/2025. 

The Complainant was employed as a Counter Teller at all material times.  The Complainant commenced employment with the Respondent on 15/08/2023 such employment terminating 14/02/2025 by way of resignation.  The Complainant worked 20 hours per week for which she received €13 per hour.

The Respondent is the Post Master of a post office.     

The Complainant claims constructive dismissal.

The Complainant’s claim is denied by the Respondent. 

Both parties provided written submissions and documentation in advance of hearing. 

CA-00071703-001

Overview of Complainant written submission

It is submitted the tests to establish constructive dismissal is a subjective one and the burden of proof lies with the Complainant to demonstrate they have been constructively dismissed.  The Labour Court in Rehab v Roberts [UDD20206] re-stated the principle that there is a two-part test for determining if a constructive dismissal has occurred. 

Law relied upon by the Complainant includes Get Fresh v Walshe [UDD 2142]; Allen v Independent Newspapers (Ireland) Limited [2002] 13 ELR 84.

In Allen v Independent the Tribunal in upholding a claim for constructive dismissal, made specific reference to the Complainant having lost faith in the employer’s ability to address her grievances due to its previous failure to do so and made specific reference to the Complainant’s health and safety concerns as being justification for her resignation. 

It is submitted the Respondent’s conduct was demonstrably unreasonable.  The Complainant could not be expected to have remained in a position where her health and safety was compromised.  The Respondent ignored the Complainant’s and her Solicitor’s correspondence raising protected disclosures concerning the health and safety of their staff.  The Complainant lost trust and confidence in the Respondent’s ability to maintain a safe place of work in those circumstances.

It is submitted the Complainant has clearly met the test for constructive dismissal in respect of both the contract test and the reasonableness test.

The Complainant raised protected disclosures that her work environment was not safe and as a result two dangerous events occurred.  The Respondent did not reasonably engage with the Complainant to investigate or resolve these concerns.  The Respondent did not refer the Complainant to occupational health or counselling services. 

The Complainant lost trust and confidence in the Respondent to provide a safe place of work and she was subsequently constructively dismissed. 

CA-00071703-001

Overview of Respondent written submission

In cases alleging constructive dismissal the employee must establish that the resignation was not voluntary and was caused by the intolerable/unreasonable actions of her employer. Simply put, having regard to the factual circumstances at issue here it cannot be alleged that the Respondent acted intolerably or unreasonably towards the Complainant. 

Constructive dismissal is defined in section 1 of the Unfair Dismissals Act 1977.   Law relied upon by the Respondent includes Berber -v- Dunnes Stores [2009] 20 ELR 61; Conway v Ulster Bank Ltd. (UD474/1981); Harrold v St. Michael's House [2008] ELR 1); Pungor v. MBCC Foods Ltd (UD584/2015)

The first element of the constructive dismissal test that the Complainant must establish is whether the conduct of the Respondent was such that it was a repudiatory breach indicating the Respondent no longer wished to be bound by the contract of employment or the Respondent's conduct was so unreasonable that it justifies the Complainant’s decision to resign.  The Complainant singularly fails to identify any element of the Respondent's actions which repudiated the contract or suggested that it no longer wished to be bound by her contract of employment. On the contrary, the evidence confirms the Respondent wanted to be bound by the terms of the contract of employment it had with the Complainant.  Furthermore, the Complainant did not invoke the internal grievance procedure.

The Respondent has not acted in breach of the Complainant's contract of employment.  The Respondent has not acted in a manner that entitled the Complainant to repudiate her employment relationship with the Respondent.  At all times the Respondent acted in a lawful manner and in a manner which accords with the terms of the Complainant's contract of employment. 

The constructive dismissal complaint is entirely unclear and lacking in particulars. The Complainant at no time raised a grievance and it is not clear what is the conduct of the employer which she alleges caused her to resign. The Complainant has provided no detail in respect of her alleged losses and mitigation of loss in respect of her complaint of constructive dismissal.

CA-00071703-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I have carefully considered the caselaw to which I have been directed by the parties.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.   

Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

The Relevant Law

Constructive dismissal is included in the definition of “dismissal” at section 1(b) of the Acts, as follows:

“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,”

There are therefore two situations envisaged in which a resignation may be considered a constructive dismissal; where the employer’s conduct amounts to breach of contract or repudiation of the contract (the “contract test”) or is such in relation to the employee that it was reasonable for the employee to resign (the “reasonableness test”).  

The Contract Test

The accepted statement of this test is by Lord Denning MR in Western Excavating v Sharp [1978] ICR 221 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 discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  … [T]he conduct must … be sufficiently serious to entitle him to leave at once …”

The Reasonableness Test

Constructive dismissal may arise where the employer’s conduct was such that it was reasonable for the employee to terminate his or her employment.  Lord Denning MR addresses this concept in the same case as follows:

“It is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving.”

It is well-established in this context that there is a reciprocal duty on an employee to act reasonably in terms of affording an employer the opportunity to address any issues.  This is clearly set out in Reid v.Oracle EMEA Ltd [UD1350/2014] where the EAT stated: 

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”  [emphasis added]

In this regard, the Employment Appeals Tribunal in Conway v. Ulster Bank Ltd (UD474/1981) held that a complainant had not acted reasonably in resigning “without first having substantially utilised the grievance procedure to attempt to remedy her complaints.

The Labour Court in Ranchin v. Allianz Care S.A.[UDD 1636] held as follows:

“In constructive dismissal cases, the Court must examine the conduct of both parties.  In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.” 

InMary Kirrane v. Barncarroll Area Development Co Ltd[UDD1635] the Labour Court held that the person complaining of constructive dismissal must also access available grievance procedures to deal with the circumstances which led him/her to resign.  [emphasis added] 

In Berber v. Dunnes Stores [2009] 20 ELR, the Supreme Court held as follows:

“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 Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee as a whole when assessing if constructive dismissal has in fact occurred; and the following four principles are noteworthy: 

1. The test is objective
2. The test requires that the conduct of both employer and employee be considered
3. The conduct of the parties as a whole and the accumulative effect must be looked at
4. 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.

In Berber the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

“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.  An objective test means the issues detailed must be viewed not in relation to this particular employee and her personal circumstances; rather did the conduct of the employer objectively judged repudiate the contract. If not a contract breach, was the conduct of the employer so unreasonable to justify leaving?”

In considering whether there has been a constructive dismissal I have to determine whether there has been a repudiatory breach of contract by the Respondent, or, if there has been no repudiatory breach, whether the Respondent engaged in conduct which made it reasonable for the Complainant to terminate her contract. 

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v. Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

I note the Complainant submits she lost trust and confidence in the Respondent to provide a safe place of work and she was subsequently constructively dismissed.  I note in her letter of resignation the Complainant cites the behaviour of the Respondent to be unreasonable with such behaviour going to the root of the contract and the continuing trust that is required. 

The Complainant claims that the Respondent penalised her by the failure to provide a safe place of work (as set out in ADJ-00056414) and I note it is further argued that also constitutes (whether in whole or in part) grounds for constructive dismissal. 

There is a significant overlap in the evidence adduced underpinning all complaints as presented to the Commission.    

The Contract Test:

I must consider whether there has been a repudiatory breach of the contract of employment. 

The Relevant Facts

The Complainant submits she lost trust and confidence in the Respondent to provide a safe place of work. 

I note the Respondent maintains he set about acquiring protective screens within a week of the incident that occurred in the workplace on 19 July 2024 and an email was opened to the hearing dated 28 August 2024 that provided a quote for Perspex screens.  I note it was not until 27 September 2024 the Perspex screens were installed and I accept the evidence of the Respondent that as a franchisee he did not have control of the fit out of the post office and An Post had to approve the installation. 

However, I note a text from the Complainant on 2 August 2024 as follows: “Hey Deirdre, are you able to get someone to cover tomorrow, I actually don’t feel comfortable being there on my own on a Saturday right now” to which the DH replies “Hey Zara I am working in Galway this week and I don’t think I have anybody at all to cover it…..” to which the Complainant replies “Okay”.

I note there was an arrangement in place that the Complainant and a colleague would work shifts together but the Complainant clearly found herself working alone in the post office on 3 August 2024.  There was no evidence presented to me of a recurrence.   Notwithstanding, I note and it is significant that the Complainant continued to work for the Respondent for a further five months after this until such time as she resigned on 10 February 2025.    

I note the Respondent asked the Complainant if she would prefer to work in an alternative work location after the incident on 19 July 2024.  I note the Complainant at hearing submits she does not remember being asked.  I note the location offered was Ballinteer and, on objective analysis, I am satisfied it is more likely than not that this offer was made as I take into account all other relevant factors and surrounding circumstances including the proximity to the Complainant’s home address as set out in the WRC complaint form.     

I note an objective test means the issues detailed must be viewed not in relation to this particular employee and her personal circumstances; rather did the conduct of the employer objectively judged repudiate the contract.  If not a contract breach, was the conduct of the employer so unreasonable to justify leaving?

I am unable to find that the Respondent has breached a term going to the root of the contract of employment namely the implied term of mutual trust and confidence if what I am being asked to rely on is the instance cited above.   I am not satisfied that the implied contractual term was breached to an extent that the Complainant had no option but to resign.   

I am satisfied no breach of any term of employment, implied or otherwise, has been proven that would give rise to a repudiation of the contract. 

Turning now to the reasonableness test.  The statutory test also provides for a reasonableness test even where no contract provision has been breached that would repudiate the contract.

The Reasonableness Test:

The proofs which the Complainant must advance to prove her case is that the behaviour of the Respondent and of which she complains corresponds with the requirements laid out in the reasonableness test and was behaviour which left her with no option other than resigning. 

The Relevant Facts

It is difficult to reconcile the Complainant’s claim that the behaviour of the Respondent was unreasonable to the extent that she had no option but to resign in circumstances where the evidence that is before me as set out hereunder does not support that claim. 

I note on 2 October 2024 the Complainant received a text from the Respondent as follows: “Hey Zara are you available for full shifts when [redacted] is off please?” to which the Complainant replies “hey yeah I am.”  

I note on 20 January 2025 the Complainant sent a text to DH as follows: “Hey Deirdre I’m doing this Saturday for [redacted] if you can change it on the roster when you get a chance, thanks!”

I am not satisfied that these are the actions of an employee who finds the conduct of her employer to be so unreasonable that resignation is the only option in circumstances where the Complainant is accepting extra full shifts when a colleague is unavailable and is requesting a roster change because she has volunteered to work an extra day for a colleague. 

I am of the view there was a functioning cohesive relationship between the parties and my observation from the text traffic between the parties was that the relationship had remained cordial throughout for the following reasons. 

I note there are texts from the Complainant advising that she would be late as her bus is delayed; or she will be late as her bus never came; or she is going to be late as the bus is stuck in traffic and the replying texts she receives from the Respondent include “That’s no problem thanks for letting me know” and similar. 

I note a text from the Complainant on 11 December 2024 as follows: Hey Deirdre, I just seen on the sheet that next weeks a long Saturday, I booked tickets to a show a month ago and it starts at 2:30, I’d only be able to stay until 2 that Saturday.”  I note in this instance authorisation was sought to close the post office at 2 to facilitate the Complainant. 

Insofar as the Complainant resigned in the face of allegedly unreasonable behaviour, there is insufficient evidence to establish that any such behaviour was of sufficient gravity as to leave the Complainant with no choice but to resign.  I am satisfied the Complainant had other choices; she could have availed herself of the offer of the alternative work location in Ballinteer had she wished to do so. 

I find the Complainant has failed to establish she was constructively dismissed particularly when regard is had to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” pursuant to the Unfair Dismissals Act.  I cannot find the Respondent acted in a manner which was so unreasonable as to make it impossible for the Complainant to continue in the employment.

I note the Complainant resigned through her solicitor on 10 February 2025.  The Complainant representative maintains that it was not incumbent on the Complainant to raise a grievance and the letter from the solicitor can be taken as her grievance which was sent two days after the second incident and sets out as follows:

… “We have written to you in separate forms in respect of personal injuries and WRC claims which have been raised on behalf of our client for your inaction in respect of the incident on 19 July 2024. 

It is clear that the behaviour of you, as an employer is unreasonable which goes to the root of the contract and the continuing trust that is required.  The most solemn duty of an employer is to provide a safe place of work. 

Accordingly, our client is treating her employment as being constructively dismissed by your inaction.

You may take this communication as a formal notice that our client’s last day of service shall be Friday 14 February 2025.”

Based on my careful consideration of the written and oral submissions, I find the Complainant has failed to discharge the burden of proof to support her claim that she was constructively dismissed for the following reasons.  There is no evidence to suggest that the Respondent no longer intended to be bound by any essential term of the contract of employment. 

Having carefully reviewed all the facts as presented to me I cannot accept the proposition that the Respondent’s conduct was such that the Complainant could no longer be reasonably expected to put up with it so as to leave the Complainant with no option but to resign.  The facts do not tend to support the test as referenced in Berber. 

Furthermore, the Complainant failed to ventilate her grievance prior to resigning.  There was a grievance procedure provided for in the Respondent Policies and Procedures which the Complainant failed to invoke. 

It is an inescapable fact in this case that the Complainant resigned without engaging in any attempt at raising a grievance and this does undermine her case.  I am mindful of the Labour Court in the case of Mr O v. An Employer (no2) [2005] 16 ELR 132 where it was held as follows:

“The Court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.” [emphasis added]

While there may be situations where a failure to utilise or give prior formal notice of a grievance may be justified such as Liz Allen v Independent Newspapers [2002] 13 ELR 84 however, I do not find factors present which might excuse the Complainant’s failure to avail of raising a grievance in the within case. 

The Complainant seeks to advance the argument that the resignation letter is the grievance which is an argument I am not inclined to accept.   

I note civil proceedings have issued and are extant and it is likely in such circumstances correspondence from her solicitor, including the resignation letter, was forwarded to the insurers as submitted by the Respondent.       

The Complainant’s notice of resignation was clear and unequivocal as set out in the above correspondence from her solicitor.  I note the aforesaid correspondence provided for a notice period of one week and there was no evidence presented to me that she did not work her notice period although I note a text from the Complainant to DH on the night of 13 February 2025 advising that as she was feeling unwell she might not be in the following day which would have been her last day.    

This matter was not canvassed at hearing and I address it here for completeness and for the following reason.      

I find the fact the Complainant worked her notice is counter intuitive to the proposition that the Complainant’s position at work was so untenable that she had no option but to resign.  If the actions of the Respondent were so unreasonable that she had no option but to resign, it is implausible that the Complainant would work out her notice period.  

The Complainant bears the burden of proving on the balance of probability that, due to a fundamental or repudiatory breach of contract and/or unreasonable behaviour on the part of the Respondent, she had no option but to resign.

I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that she had no option but to resign her position or that the conduct of the Respondent was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. 

In the circumstances I find that the Complainant resigned from her employment of her own volition and she has not discharged the burden of establishing that she was constructively dismissed within the meaning of section 1 of the Unfair Dismissals Act, 1977. 

For the reasons outlined above I am not persuaded by the Complainant that resignation was her only option. 

Accordingly, I find that she has failed to establish she was constructively dismissed and her complaint cannot succeed.

CA-00071703-001

For the reasons set out above I decide this complaint is not well-founded.