Complainant

Respondent

Parties

Donna  Caden

Bord Gáis Energy Limited

Representatives

Aengus Ó Maoláin BL

instructed by Crushell & Co Solicitors

Andrea Tancred of Ibec

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-00065562-001

23/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00065562-002

23/08/2024

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

CA-00065562-003

23/08/2024

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

CA-00065562-004

23/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00065562-005

23/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00065562-006

23/08/2024

The Complainant was employed by the Respondent in their Marketing Department for approximately six years. Over this time, she performed highly and successfully moved into a “brand” role. This is a particularly strategic aspect of Marketing/PR and was the Complainant’s preferred speciality. She was promoted in mid-2023. In early 2024 the Respondent began a brand repositioning project and a new Head of Marketing started in the business, referred to as Ms A in this decision. The Complainant resigned in August 2024 citing, amongst other things her exclusion from the repositioning project and its impact her role.      

The Complainant’s counsel made written and oral submissions on her behalf. The Complainant was constructively dismissed on the basis of both the contract ground and reasonableness ground.

The Complainant was effectively demoted which does not come within the terms of the flexibility clause of her contract of employment as the duties she was be reassigned to were not consistent with her level of responsibility. The proposed alternative position was not a temporary one and constituted a demotion which she would have had to accept by remaining in the role.

The Complainant’s grievance handled in a slapdash manner. The investigator believed Ms A’s demonstrably false statements regarding her proposal to move the Complainant into a reduced role. The Complainant was waiting for clarity that never came while out on work related stress leave, she could not continue to work for the Respondent.

The Complainant gave evidence under affirmation. Where relevant to my decision this evidence is referred to in the findings and conclusions section.  The Complainant’s former line manager Ms Ms Irene Dowing provided a written statement as she was unavailable to give evidence. As this is hearsay I have only considered this statement where supported by other evidence.

The Respondents’  representative made oral and written submissions on their behalf. The Complainant has not met the legal threshold for constructive dismissal. The Respondent acted within her contract at all times. When she raised concerns about her role going forward the Respondent addressed these issues and those conclusions were reached in separate processes by two different officers. In both outcome letters the assurances sought after by the Complainant were given.  At all times the Respondent wished to resolve this issue however the Complainant chose resignation in August 2024 while engagement was ongoing. A return to work could have been attempted and wasn’t. No one was trying to impede the Complainant’s career trajectory and the brand review probably would have given her more opportunities in due course.

Ms Martina Williamson the Respondent’s HR Director gave evidence under affirmation. Where relevant to my decision this evidence is referred to in the findings and conclusions section. 

Unfair Dismissals Act CA-00065562-004

The Complainant joined the Respondent in November 2018 on a fixed purpose contract carrying out maternity leave cover for the position of Sponsorship Programme Manager. This role mainly focused on the Bord Gáis Engergy Theatre  (“the theatre”) which is sponsored by the Respondent. In January 2020 the Complainant was awarded a permanent contract in the role of Brand Communications Manager. This involved a slight increase in salary and, more importantly for the Complainant, a move into “Brand” related work which is a distinct and particularly strategic function in corporate communications. The Complainant had a background in this and wanted it to be the focus of her career.

During the course of the Covid pandemic the Respondent moved to remote working. The Complainant sought and was given permission to permanently relocate to West Clare and the then head of function agreed for her to work mostly remotely going forward, attending Dublin only when necessary.

On the 30th of May 2023 the Complainant was promoted to Marketing Specialist, still focused on Brand. Her new contract contained a detailed job description requiring her to lead 14 key “brand transformation” projects as well as have input into the brand strategy and partnerships with third parties. The contract includes the following clause: “Your duties will be as specified in the attached job description. However, you may be entitled to undertake other or alternative duties or assignments consistent with your level of responsibility.”

This role resulted in her being promoted to a higher grade and having her pay increased by roughly 20%.  She reported directly into Ms Irene Dowing who was the Head of Brand, Consumer and Business Sponsorship. This team sat under a Head of Marketing who reported to the  Director of Customer and Commercial (also referred to as the Director of Retail) who is part of the six person Senior Management Team.  

The Complainant performed well in her new role and this was reflected in a positive performance review in February 2024. The Complainant was in this role for approximately 9 months when a new head of Marketing, Ms A, joined the Respondent in March 2024. Ms A had worked with the business as an external consultant before taking this role as a senior manager.  

Ms Williamson gave evidence that this was a time of significant change at the highest levels of the Company and that there were a number of changes in senior management. The Senior Management Team decided at this time to change the Respondent’s strategy towards becoming a “net zero” business. This required a major review of the businesses’ brand and they decided to bring in a new third party marketing firm to lead that review and relaunch. They ceased their relationship with the brand agency they had used since their last rebranding project in 2020 and retained a new one. Ms Williamson’s evidence was that this was a decision made above not just the Complainant and Ms Dowing’s level of responsibility but Ms A’s also.

As this shift was being anticipated at the time of Ms A’s joining and she soon communicated to the Complainant that much of her work would be paused as it revolved around the existing brand strategy. Emails from March show this was not just communicated to the Complainant but Ms Dowing also and the employee occupying the Complainant’s former role (Brand Communications Manager) and that they were asked to shift their work to develop a new plan for the theatre amongst other things. Ms Williamson’s evidence was that the naming arrangement with the theatre had only recently been renewed and as such there was a focus on making sure the Respondent was getting the most out of that arrangement.

The Complainant met with Ms A on the 19th of March and her evidence was that she was told that Ms A would be working on the brand reposition project with an external agency and confirmed that the Complainant was to stop working on the majority of what she’s doing. She was really surprised and asked why she was not being included in the repositioning work going forward but was not given a clear answer.

The Complainant tried to get further information on her work over the course of the year and sought a further meeting with Ms A which was agreed for the 27th of March. Email correspondence shows that Ms A was contemplating moving the Complainant out of her role and had been discussing moving the Complainant into a currently vacant role focused on the theatre. Ms A was clearly contemplating a permanent move on the basis that the Respondent needed to “reinvigorate” their role within the theatre. This move was proposed despite Ms Downing highlighting the Complainant’s strengths in working in brand and that the role was at a grade junior to the Complainant’s current grade.

The Complainant’s evidence is that on the 27th of March she was told by Ms A that she wanted her to move into the theatre role. The Complainant asked if she could be brought into the brand project later but Ms A was not clear she could and expressed the view that her current role was ill-defined.

The Complainant was really upset by this proposal as she understood that the role she was being offered was the role she had done up until 2020 and was a massive step back for her. While she always assumed her grade and pay would be protected in any move she believed the implications for her career direction would be profound. As this point she engaged with her line manager who revealed the exchange she had had with Ms A by email.

The Complainant and Ms A met again on the 17th of April where the Complainant again raised that the theatre role was a demotion and queried her exclusion from the ongoing brand work. Ms A suggested that she should look around for another role and then later that day sent a marketing role to the Complainant. This again did not suit her career goals as marketing work involves bringing short term campaigns to life rather than strategic long term brand work. She believed this role would have also been perceived as a demotion and understood that it had previously been graded a level below hers.

The Complainant emailed Ms A in reply to the offer of the marketing role and sought confirmation as to what was happening to her role. She received an obfuscating reply stating that the role was evolving due to the rebranding project and the new third party agency coming on board. Ms A did not say that the role was gone due to this change but referred again to the two previously mentioned vacancies. The Complainant was then on annual leave and Ms A did seek to meet with her again on her return in May.

After the April meeting and the email exchanges the Complainant decided to raise a complaint regarding Ms A with Ms Williamson.

She alleged that Ms A was impeding her ability to do her job and had taken away her role by excluding her from the brand repositioning project which she argued was within the scope of her role and that she had been asked to look for other roles. She alleged that her role was being made redundant.

The Complainant also raised allegations of inappropriate behaviour including the changes to her team being made without consultation. The Complainant raised that Ms A was assigning her ad hoc work in front of colleagues on the basis she had availability and characterised this as undermining behaviour. She also raised that she was receiving late night emails. The Complainant informed Ms Williamson that the stressful work environment and the derailment of her career had taken a significant toll on her health and well-being.

The document ended with her asking for a redundancy exit package.

Ms Williamson arranged a meeting with the Complainant and the head of function, Ms A’s line manager and a member of the six-person senior management team, Ms B. This took place on the 7th of May 2024 and I have the benefit of a summary minute of this meeting which the Complainant contributed to in a different colour text.

Ms B confirmed that the changes being brought in related to the Respondent’s brand projects had come from her and the senior leadership and that this was going to impact the Complainants work. Ms B confirmed that the Complainant was not being asked to work with the third party due to confidentiality reasons and asked her to consider other roles and responsibilities while the brand work was paused. The Complainant did not accept this as she believed these changes would be permanent. The Complainant clarified that she felt she was being bullied by Ms A and did not feel physiologically safe reporting to her. Ms Williamson initially sought to arrange to bring Ms A into the meeting so they could clear the air but the Complainant did not think this would be appropriate.

Ms Williamson’s evidence was that due to these comments that she felt that the matter needed to be further investigated and asked the Complainant to provide further details and outlined that they might divide the matter into two issues, one being her role and the other being allegations of bullying. The Complainant’s evidence was that she felt interrogated and that this meeting caused her upset. The Complainant went on sick leave following the meeting and remained on sick leave until her resignation.

Ms Williamson and the Complainant emailed over the course of the coming week and the Complainant was asked to detail her bullying complaints. The Complainant did not respond for a couple of week and then replied requesting an update and minutes to the initial meeting. When it was pointed out that they were waiting for further information from her she outlined that she expected further follow up on the issue of her role at least and provided further details of bullying allegations which mostly related to the earlier meetings she had had with Ms A. The Complainant put in a DSAR at this point and emailed Ms B formalising her earlier complaint.

At this point Ms Williamson made the decision to retrospectively treat the process they were in a formal grievance process and communicated this to the Complainant. Her evidence was that having had a detailed informal meeting which had an agreed minute and then the follow up emails it was reasonable to proceed to investigate the matter formally rather than redo the same meeting under a different step of the policy. Her evidence was that this seemed particularly reasonable in the circumstances where the Complainant was outlining that she was finding the process extremely stressful and had gone on sick leave immediately following the meeting of the 7th of May. 

The Complainant’s evidence was that during this period she felt isolated and that her line manager who she had a close working relationship with, had gone on leave also.  She did not feel she could return to her role with so much uncertainty and ad hoc duties being assigned.

On the 5th of June 2026 Ms A was interviewed. While I only have a redacted version of this interview obtained by the Complainant in her DSAR it is clear that Ms A did have issues with the scope of the Complainant’s role outside of the need for elements of it to cease for the duration of the brand repositioning project. However, she did also assert that she was only proposing interim changes for the Complainant in proposing other roles. She clarified that if the Complainant chose not to take these roles she would continue to assign her ad hoc work based on her availability during the course of the brand repositioning project.

On the 14th of June Ms B issued an outcome to the Complainant’s grievance. In regard to her role and alleged role infringement, it was confirmed that her role was temporarily amended until the brand review would be completed. She continued to carry out key parts of the role and that alternatives were only being offered on an interim basis. The outcome also noted that due to a collective agreement compulsory redundancies were not permitted within the business and as such no entitlement to redundancy could arise. The Complainant was told that there would be further engagement on her work during the brand repositioning when she returned. The Complainant emailed Ms B asking for an explicit breakdown of what parts of her job the Respondent was asking her to perform, what elements were discontinued and when they were expected to resume. Ms B replied again explaining that this matters would be discussed on her return which the Complainant found unsatisfactory.

As Ms B was senior to Ms A and the head of function, Ms Williamson’s evidence was that this outcome was the Respondent’s definitive and unambiguous position in relation to the Complainant’s role and that it remained in place but with elements of it temporarily on hold while the project was ongoing. The Complainant’s evidence was that this failed to address the views and position previously expressed by Ms A and left her with a lack of transparency and certainty as to what was going to happen with her role.

In regard to alleged bullying by Ms A, Ms B found that the communications between the Complainant and Ms A were appropriate and best understood in the context of the rebranding exercise and Ms A joining the Respondent. In that context Ms A was required consider and reassign roles and responsibilities. It was acknowledged that there had been delay in providing clarity in relation to the ongoing changes to the Complainant’s responsibilities but this was again attributed to the brand repositioning project.  Ms B was clear that there is no expectation for the Complainant to respond to emails outside of working hours.

 The Complainant appealed this decision on the basis that she believed she had been made redundant due to the loss of most of her role and responsibilities. She also raised the unsuitability of the alternatives previously offered and her general disappointment from being excluded from the brand re-evaluation project. The Complainant also raised a number of new complaints relating to the how the process had been handled so far alleging lack of care towards her, delay and change in the process. The Complainant also requested that the Respondent agree a new reporting line with her.

This appeal was considered by the Respondent’s General Counsel and was rejected. They confirmed that the Complainant’s role was subject to some, temporary, reassignment of duties but a large part of the role remained intact. This mostly related to the research work the Complainant undertook which was going to continue. The Complainant’s evidence was that this work was always ongoing but would tend to only be a major part of her role one week out of any given month. The appeal outcome noted that the final approach on brand positioning was not yet determined and the Complainant’s work, when she returned, would be determined by the business needs at the time of her return but that she would continue to be a “senior resource” within her Department. It was clear that she would be reassigned other duties on a temporary basis.

The appeal outcome was explicit that the recent changes to the Complainant’s role arose from the brand repositioning review which was being led from the top of the organisation and was not caused by the Complainant or any performance concerns. 

The appeal outcome issued on the 18th of July and the Complainant resigned three weeks later on the 6th of August. The Complainant’s evidence was that she tried to return to work but felt “passed around” by the organisation. The HR official she had been dealing with directed her to new line management which the Complainant did not agree to. Her evidence was that she was seeking mediation with Ms A but the Respondent did not provide this. This was inaccurate in that the Respondent was arranging mediation to be facilitated by an HR official from elsewhere in their group of companies. The Complainant objected to this and sought an external mediator. Ms B was on a period of annual leave so unavailable to make a decision on the request at that time.  

The Complainant’s evidence was that she felt no choice but to resign. Her letter of resignation was submitted on the 6th of August and was effective immediately. Her letter reiterated her allegation that she had been prevented from working her role, that Ms A had tried to get her to permanently leave her role and this reality had not been acknowledged, that she had had her reporting line changed specifically to frustrate her request of independent mediation and that the grievance process had been mishandled and delayed. The Complainant felt under significant stress and did not think she could continue working for the Respondent.

The Law

The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns. This is outlined in section 1 of the act which defines dismissal as to include:

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,

The above has been interpreted as putting the burden on the employee to establish not only was their decision to resign reasonable but that it was due to the unreasonable conduct of the employer.

Or as the UK Court of Appeal put it in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221:

“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. He can go, with or without giving notice, and claim compensation for unfair dismissal”

The above is often referred to as the reasonableness test.

The Complainant has also alleged that the were constructively dismissed on the basis of the “contract test”. This is also outlined in Western Excavating, Lord Denning stating:

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. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant B without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. 

 Conclusions

The Complainant has not established that her resignation was caused by the Respondent acting so unreasonably that it would be unfair to expect her to carry on in employment.

She set out the following reasons in her letter of resignation:

Diminution of role and impediments to performing my job: I have been consistently blocked from fulfilling my job responsibilities, stripped of key roles and responsibilities, have not been permitted to work on a major brand project or according to my job specification.

The Respondent has established that there was temporary disruption to the Complainant’s role due to the brand repositioning. This became clear in mid-March 2024 and the Complainant continued actively working for about four weeks before commencing annual leave and then sick leave shortly thereafter. The outcome and effects of this repositioning were still unclear at the time of her resignation, particularly to the Complainant herself as she had been out on sick leave for a period of four months. The Complainant’s return to work may not have worked out but she cannot be constructively dismissed because grounds for constructive dismissal might have arisen in some point in the future had she returned.

Forcible attempted removal and unsuitable alternative offered: I was repeatedly told to permanently vacate my role by “Ms A,” with the implication that it would cease to exist thereafter. Despite my extensive experience and specialisation in brand strategy, I was offered an inferior and unsuitable generalised marketing role, permanent in nature. This was a clear demotion and does not align with my skill set or career trajectory.

At the time of her resignation the Respondent, and specifically Ms A’s line manager, had clarified that the Complainant’s role was not permanently supressed.

Unjust Treatment and Lack of Transparency: There has been a lack of transparency regarding the future of my role. The attempted permanent removal from my position by Ms A has not been acknowledged as having taken place.

I do agree that the Respondent was unreasonable in not addressing the position of Ms A in March/April 2024 which was clearly that the Complainant should permanently vacate her role and that she had concerns about that role resuming after the brand repositioning. Ms A was of course entitled to hold that view as the Complainant reported to her but when this issue was avoided in the grievance process it clearly damaged the Complainant’s view of the Respondent. This unreasonableness is not sufficiently serious as to allow the Complainant to consider themselves constructively dismissed, particularly (as outlined above) the Complainant was anticipating the implications of Ms A holding this view while her position was in a state of flux. She did not know how the situation would play out in circumstances where Ms B had determined that the Complainant’s role would remain available to her.

 You’ve refused to provide me with an amended job specification that would reflect how much of my role has been suspended and what other responsibilities I am being asked to undertake in the meantime. I’ve been given no clear timeline for this suspension of duties.

The Respondent outlined to the Complainant a number of times they were engaged in a project that would result in changes to her work and that project was ongoing. They were entitled to reserve their position until the implications of this were clearer.

Diminished Reporting line: In an apparent effort to avoid a requested mediation session with an independent to facilitate my back to work meeting, you changed my reporting line without consultation to an unsuitable alternative manager who specialises in general marketing as opposed to specialist field of brand strategy and development. This has had the effect of shrinking my role to an inferior position, limiting my professional reach in the business and singling me out from the rest of my team. There has been repeated lack of clarity from you on the order of mediation and return to work process and asked me to return on trust alone and to meet a lesser line manager with whom details of my grievance had been shared without my consent. You refused to acknowledge these concerns.

The Respondent is entitled to change reporting lines and changing the Complainant’s reporting line away from Ms A had been raised as a possibility from the outset of the process. Much of the above constitutes speculation on behalf of the Complainant as to the outcome of this in circumstances where she had not yet returned to work or engaged with the new reporting line. There is no reasonable basis to allege that the Respondent was deliberately trying to avoid mediation.

Failure in Duty of Care: The company's handling of my grievance overall has been severely mishandled, with significant delays and confusion of process causing stress. At every stage I have been without clarity on the process followed, causing stress. There was a lack of appropriate communication, and multiple delays in providing first the initial support from Medmark and then the subsequent medical reports detailing the stress and anxiety I’ve suffered as a result of this grievance

 On review of the evidence before me I do not accept the above. The timeline of the grievance process was normal and it unclear what an earlier medmark report would have achieved. Ms Williamson’s decision to expedite the process from informal to formal was outside the policy but was not unreasonable and caused no prejudice to the Complainant who was still able to appeal her case to the General Counsel.

More generally the above letter, and the Complainant’s oral evidence to the WRC, ignored the context of her having sought a redundancy package from the outset of this process in April 2024. When that option was definitively rejected by the Respondent, for the third time, the Complainant resigned shortly thereafter citing the new changes in reporting line and a lack of immediate response to her request for an external mediator.

As the Complainant was working remotely from West Clare the financial implications of the decision to resign were significant and foreseeably so. I do not doubt that she felt dread and anxiety when anticipating how her career with the Respondent might work out over the course of what was clearly a period of significant change. The Complainant probably made the right decision given her own set of circumstances, however, change and uncertainty are things that an employee can reasonably be expected to put up with by their employer in the course of business and are not normally grounds for constructive dismissal. 

The Complainant has also raised the contents of her contract as a basis for constructive dismissal specifically noting that the contract states that “you may be entitled to undertake other or alternative duties or assignments consistent with your level of responsibility” submitting that the alternative duties were not consistent with her level of responsibilities. At the time of resignation it was not clear that this was the case as the Complainant had not yet taken on the alternative duties nor was it known how long those duties would be assigned to her for.  As outlined above an employee cannot be constructively dismissed because grounds for constructive dismissal might have arisen in some point in the future had they remained in employment.

CA-00065562-005 Minimum Notice & Terms of Employment Act, 1973

As the Complainant resigned and was not constructively dismissed no entitlement to notice arises.

CA-00065562-003 Terms of Employment (Information) Act, 1994

The Complainant has submitted a complaint related to changes to changes to her terms of employment under Section 3 of the above act. Such changes require the employer to notify the employee in writing of the nature and date of the change when the change takes effect.

Section 3.1A.h provides that an employer must notify an employee of either,the title, grade, nature or category of work for which the employee is employed, or a brief specification or description of the work. The Complainant’s grade remained the same throughout the rebranding project and her sick leave and as such the Respondent remained compliant with the act.

CA-00065562-006 Payment of Wages Act, 1991

The Complainant has asserted she is owed overtime payments as she was regularly working above her contracted hours. The cognisable period for her claim covers the February and March and April payrolls. The Complainant failed to provide specific evidence of specific payments properly payable to her for these periods. Her contract of employment states that no entitlement to overtime exists as a part of her employment.

As such I do not find that the Complainant has established any sums which were properly payable to her and which were not paid. 

CA-00065562-003

I find that the complaint is not well founded.

CA-00065562-004

I find that the complaint is not well founded.

CA-00065562-005

I find that the complaint is not well founded.

CA-00065562-006

I find that the complaint is not well founded.