Anonymised Parties

A shop worker

A Shop

Representatives

Self-represented

Peninsula Business Services Ireland

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-00070393-001

31/03/2025

The Complainant worked for a chain of shops. She was the manager of two stores, each based in a County town, in Co. Cork.

She submits that she was subject to a campaign of bullying and harassment by another employee in the Respondent business, both in work and outside of it. She submits that she received abuse in the street from the alleged perpetrator and from her mother. She submits that she has moved from the town she lived in due to the behaviour, and that the matter is the subject of a Garda investigation.

The Complainant submits that she suffered significant mental health difficulties, made an attempt on her life and was the subject of psychiatric care. She attributes her mental health difficulties and/or their exacerbation to the alleged bullying.

The Complainant submits that she was constructively dismissed by her employer. She particularly objects to its handling of the alleged bullying, what she submits was a failure to support her return to work post-sick leave and the alleged perpetrator being favoured. She particularly objects to being blocked off the company’s promotions page.

The Respondent denies the Complainant’s claims. It submits that she was not dismissed, constructively or at all. It submits that the Complainant never raised a bullying complaint utilising its grievance procedure. It submits that she was the subject of allegations herself, subsequent to which she took sick leave, and that it made three attempts to arrange a welfare/return-to-work meeting. The Complainant cancelled the first, the Respondent cancelled the second and both parties allege they but not the other party were in attendance at the third. It further submits that she was given an opportunity to reconsider her resignation and to put in a grievance utilising its grievance procedure.

As per the Complainant’s complaint form:

The Complainant submits that she was bullied by another employee and took medical leave due to almost killing herself.

She sets out that the sick leave commenced on 19/2/2025, that the doctor issued a fit to return to work cert for 24/03/2025, that she was supposed to have welfare meeting to return to work on 26/03/2025 but that the employer never arrived for the meeting.

The Respondent employer has a shop in [Location No. 1 (County Town)], Co. Cork and another in [Location No. 2 (County Town)], Co. Cork, in addition to other locations.

The Complainant submits that she could not get to the [Location No. 2] shop on weekdays as she has children in school, which she submits that she told the employer several times.

The Complainant submits that on 29/03/2025, the employer requested the Complainant attend at the [Location No. 2] shop at 10am to have her welfare meeting and then start her shift but she submits that the people she was due to meet never arrived.

The Complainant outlined that as a manager of the [Location No. 1] shop, in her three-year employment, she was not paid for lunch breaks or rest breaks, which she submits she was told she would be. She submits that she always worked through.  

The Complainant submits that she is not the only employee who cannot make it to the [Location No. 2] shop but submits that she is the only one being forced to go.

She submits that she has asked several times and has been ignored by her boss and rostered into the [Location No. 2] shop on weekdays.

She submits that she was unfairly demoted from manager three (3) times for other employees

The Complainant submits that she feels like she is being forced out of her role in the company for having mental health issues, which she submits were caused by another member of staff.

The Complainant submits that she tried to put in a complaint about the bullying situation but that her boss would not consider dealing with it, mentioning that she was on protected sick leave. The Complainant disputes this.

The Complainant submits that she dedicated three (3) years of her life to building these shops up and maintaining a pretty good sales for this company and have never had an issue like this before with her employer.

She submits that the doctor had previously stated that upon her return to work that the [Location No. 1] shop would suit her better as she is more comfortable there.

The Complainant submits that at her last shift in the [Location No. 2] shop, she suffered an [unrelated] injury, when a chair she sat on broke under her and she hit her head off the shelving unit. She submits that she suffered a delayed concussion.

She further submits that on two previous occasions, she suffered a physical injury at work – once a door collapsed on her and, secondly, a light fell from the ceiling nearly hitting her and causing fear and anxiety. She submits that she had to continue working on both occasions.

The Complainant submits that she feels like she is being pushed out of her job and role.

At the hearing, the Complainant gave evidence on her own behalf.

She outlined that she was hired for the [Location No. 1] shop, that she became mentally unwell due to bullying in the [Location No. 1] shop, as well as outside of work by the alleged perpetrator and her family.

The Complainant was on sick leave due to a physical injury – she sat on a chair, fell and suffered a delayed concussion.

She said she made enquiries as to how to put in a bullying complaint, on February 6th.  She asked about access to HR, who the HR company was. She said that she tried to followed the procedure by going through her manager first. She said that she was told it could not be dealt with until her return from sick leave.

She said she never got a chance to return from sick leave, that her mental health got worse. She said that she tried to return but was told that there were no hours available for her in [Location No. 1].

She said she was the acting manager of [Location No. 1], that [Location No. 2] was too far away, and that she needed to be close to home and her support network.

She said that she tried to kill herself.

She was certified as fit to return to work by her GP. The GP suggested she work in [Location No. 1] which provided proximity to her home and support network.

[Adjudication Officer’s Note: The Complainant was not referred to Occupational Health by the Respondent.]

The Complainant explained that she had been doing the rosters for about a year and a half. She said she could do the hours in [Location No. 1]. She said that they were a single car family and she had two children in school.

She said that her contract was for [Location No. 1].

She said that the moment she handed in her notice (August 2022), the Respondent company hired the person who she alleged had been bullying her for the [Location No. 1] store. She said that she had previously been passed over, but that she kept going because she loved the job. She said that she had done a couple of hours of training in the shop in Cork city and occasionally had filled in as a favour, on a couple of occasions.

She said, in response to the employer’s complaints that none of them are connected. She said that this was the first time she heard of those complaints, that she ‘wasn’t allowed hear of them’ because she was on medical leave when they came in. She was told that while she was on sick leave, the company could not engage with her.

On Cross-examination

The Complainant was asked about her work history. She said that on 6th June 2022, she was hired as a manager, trained as a manager, and then bumped to shop assistant. She said that as somebody who was trained as a manager, she was bumped three times.

It was put to her that in December 2023, she was in the role of the manager of the two stores [Location No. 1 and Location No. 2]. The Complainant disputed this. She said: ‘No. I was only the manager of the [Location No. 1] store, not the [Location No. 2] store.’

She said that in mid-August 2022, she was based in [Location No. 1]. She said that [Location No. 2] didn’t open and he knew I didn’t get to Cork [city].’

She was asked about her contracts. There was a 2022 contract and a 2024 one. The Complainant said that in relation to the 2024 contract, she had not signed it, that the title was incorrect and the date she started was incorrect too. The Complainant was asked whether they listed a place of work.

It was put to her that she was promoted to the position of manager of both stores. She was asked whether she became manager of the store in [Location No. 2]. She said that she was promised €20 per hour to manage both stores, that she had two children to feed, and she acknowledged that she had accepted it. She said she was never paid what was promised. She said that she was ‘acting manager’ of the store in [Location No. 2]. She objected to being paid €14 an hour to manager two (2) shops and eight (8) people.

She was asked about the complaints the Respondent had received The Complainant said that she did not know about the complaints raised against her, [that she was on sick leave when they came in.]

The Complainant said that she ‘shouldn’t have been blocked from the FaceBook page’, that she ‘shouldn’t have been barred from the shop.’ She said that happened ‘when I was still in employment.’ She said: ‘I have her family attacking me on the street.’ She said that person is now the new manager of the shops in [Location No. 1] and [Location No. 2].

She said that she sent a message around February 7th, seeking to raise a bullying complaint and that her employer told her they would discuss it with her when she was fit to work, that they would pass her message on to HR, and be in touch when they heard back from them. The Complainant said that she had previously raised this verbally (on November 6th) with NK, who was another employee, at the time.

She said that she did not feel like she was being given any intention, of her return to work. She said that she felt that she was being ‘pushed out.’

She submitted that any time she tried to come back, she submitted that the employee (against whom she alleged bullying) made it physically and mentally impossible. She said that she had received the ‘height of abuse from her from behind the counter’ on one occasion when she went into the shop in [Location No. 1] when she was off work and the other employee was working in the shop that day. She said that she had made a report to the Gardai about the abuse she had received from the other employee. She said that she was attacked by the employee’s mother and sister, in the street, also. She said this had occurred between February and March, on approximately 24th February. She said that she was terrified of being attacked at work, that she was pushed out of her managerial role.

In terms of her return to work, she said that she had a couple of days where she was on, but nothing beyond that. She said a meeting was arranged and was cancelled twice. She said that she cancelled it the first time as she was unwell, that she ‘couldn’t get out my front door without panic attacks and fainting’. The second meeting cancelled due to the Respondent’s van breakdown. Then, on 26th March, the meeting was arranged for [Location No. 2] store. She said that she sat across the road at the bus stop, waited them for 15 minutes but there was no sign of the people she was due to meet (the owners). She said that she drove off. She said: ‘They were not there – I could see into the store.’

She said that her anxiety builds through the Respondent building. She said it was a medium sized store with a big window - shop front, back room, toilet. She said they had previously discussed meeting in a café near the [Location No. 1] shop. She said on the third occasion of the scheduled meeting, she was outside the shop [Location No. 2] and that she was afraid to go in on her own. She said that she sent a text when she was leaving.

She said that the meetings were to discuss the complaints against her and the return-to-work (welfare) meeting, not the complaints she wanted to put in. That was March 28th, 2025. She said that she previously felt, on February 26th, 2025, as she outlined, that she was being pushed out of her job. She said that she sent a letter to her employer at the time from her GP stating that she had to work in [Location No. 1] shop.

She said that she was in [Location No. 2] once a month to cover people’s shifts, that she never got paid to be the manager of [Location No. 2], she said she never really got paid to be the manager of [Location No. 1].

In relation to her resignation, the Complainant said that she ‘felt like I had no other choice’, that she received ‘no sympathy’, ‘no support.’ She said that she was ‘getting phone calls when I was off’ in relation to the Cork shops. She said she felt ‘so unwanted, not safe, unsupported’, that she felt that she was ‘at the top of a cliff’ and ‘my boss didn’t look after me.’ She said that she was their longest standing employee and that it was the darkest time in her life. She ultimately resigned her employment on April 1st.

She said that they refused to pay her for the meeting she was not at. [The [Location No. 2] meeting at which both parties submit they showed up to attend, but did not see the other.] She submits that they told her about the public transport. She said that they only gave her hours for the [Location No. 2] shop.

She said: ‘I actually had to check myself into a mental health facility.’ She said she had told the other employee: ‘Please stop bullying me. Please stop.’ She said she got no support for her grievances. ‘Tell me how I wasn’t forced out.’

She said that she was ‘blocked off the promotions page’, ‘tell me how I wasn’t forced out, with their hands on their back, pushing me out of a job I adore.’ She said that the employers are meant to look after their staff. She said that she had resigned prior when she was told her grievance would be discussed – when she returned to work. She said that she was still getting abuse, from the other employee, nine months after leaving her job.

Mitigation

She outlined that she had been hospitalised. She said that she was ‘too anxious’, that she was ‘unfit to work due to illness’ and was in receipt of illness benefit.

In response to some queries from the Adjudication Officer, at the hearing, the Complainant said that the instance of her receiving abuse from the other employee from behind the counter in the [Location No. 1 ] shop happened after she was told she could go back. She said that she did not realise that the other employee was working that day.

She further explained that she thought it was possible for her to return to work doing hours in [Location No. 1] shop because employees are rostered to work alone.

Closing remarks by the Complainant

She said: ‘I felt pushed out. I felt very unsupported by an employer. I shook the whole way down to [Location No. 2]. I had to leave my town that I grew up in over this.’ She said she had a fear of her employers, that she was ‘terrified’ and had ‘no support.’

She said she was told: ‘We can’t talk to you until you come back to work.’ She said she was struggling with her mental health when she tried to come back to work. She said that her ‘doctor’s orders’ were that she work in [Location No. 1], that was ‘most safe and comfortable.’ She said her employer told her: ‘No – [Location No. 2], [Location No. 2], [Location No. 2].’

She said that her boss told her about public transport options, in order to get to [Location No. 2]. She expressed the view that she was viewed as someone who was becoming a liability due to her mental health.

As per the Respondent’s written submissions

The Respondent denies the Complainant’s claim that she was constructively dismissed. It submits that she resigned her employment, having failed to utilised the Respondent’s internal procedures, and in doing so acted unreasonably.

The Complainant commenced employment with the Respondent on 6th June 2022 as a shop assistant. She received a copy of her Terms and Conditions of Employment. (Copy of Terms of Employment submitted). She received a copy of the Respondent’s Employee handbook (Copy of Handbook submitted).

She was subsequently promoted to manage two stores of the Respondent, their stores in [Location No. 2] and [Location No. 1].

In February 2025, the Respondent received a number of complaints regarding the Complainant’s conduct.

This included but was not limited to:

-          Selling vape products to minors 

-          Retaliating against staff by reducing hours

-          Giving out stock to the public for free

-          Not showing up for rostered shifts and failing to inform management

It should be noted there are ongoing proceedings regarding the sale of vape products to minors including the Complainant.

In light of the seriousness of the accusations, the Respondent immediately sought to commence an investigation into these breaches.

The Complainant, however, commenced sick leave on 6th February 2025.

The Complainant remained on sick leave until 24th March 2025 when the Complainant received a medical cert from her GP to certify her as fit to return to work.

Ahead of her return the Respondent wrote to the Complainant requesting she attend a welfare meeting.

This was organised for a number of occasions but were cancelled by the Complainant on one occasion and by the Respondent on another.  

Ultimately the Respondent arranged to meet the Complainant, at their [Location No. 2] premises on 26th March 2025.

Ahead of her proposed return to work the Respondent engaged in discussions regarding her shifts and it was agreed she would return on a part-time basis initially.

For the first week of her return, it was proposed she would work two (2) days at the [Location No. 2] store as it was a quieter store. This could then be increased to three (3) days the following week as requested by the Complainant.

The Respondent wrote to the Complainant on 14th March 2025 stating the following:

Hi [Name redacted]. Thanks for your message. We can definitely accommodate returning work on reduced hours, just to get you back on your feet as you said.

I'll schedule you for two shifts next week. for after our meeting on Tuesday. I can see you requested to be placed in the [Location No. 2] shop.

At the moment, the shifts we have available are for the [Location No. 2] shop. We can see about getting you in the [Location No. 1] shop in the future, but beginning in the quieter shop would be best for getting you back in the swing of things.

The Complainant stated that she could not work at the [Location No. 2] store during the week despite having previously managed the store.

On 21st March 2025, the Respondent received a message from the Complainant stating the following:

As I was employed as the manager of the [Location No. 1] shop on full time hours this is not acceptable.

I am happy to resume my duties as manager of the [Location No. 1] and [Location No. 2] stores on Monday the 24th of March as per the return to work cert that I have provided.

To clarify this is the first time my doctor has certified that I am fit to return so this should assist you in predicting when I will return to work.

As I will be returning to my previous duties this will include rostering so I will be happy to assist you with any difficulties you have in locating the necessary hours in [Location No 1].

I am confident that we will be able to solve these issues as I do not wish to have to seek professional advice and view your precious [sic] messages as a termination notice.

The Respondent cancelled the scheduled welfare meeting on 26th March 2025 due to a breakdown of a vehicle.

The meeting was then rescheduled for Saturday, 29th March 2025 at the [Location No. 2] premises of the Respondent.

The WhatsApp exchange regarding this cancellation has been reproduced below:

Respondent: Hi [Name redacted] we are going to have to postpone as we have come to Derry to pick stock up and the vans broke down. We will meet you at [Location No. 2] on the Friday at 10 before you start your shift.

Complainant : I won’t be going to [Location No. 2] Friday  

Respondent: Hi [Name redacted] we are going to have to postpone as we have come to Derry to pick stock up and the vans broke down. We will meet you at [Location No. 2] on the Friday at 10 before you start your shift.

[26/3, 15:16] [Name Redated, Location No. 1]: I wont be going to [Location No. 2] Friday [Manager’s Name redacted] I cannot get there

[26/3, 15:23] [Name Redated Location No. 1]: I’ve mentioned several times now I can’t get there I need shifts in [Location No. 1 on the weekdays I can do weekends in [Location No. 2] I feel like you repeated changes and insistence of me working the [Location No. 2] shop is making me feel like your trying to push to quit which isn’t going to happen My doctor has stipulated that I work in [Location No. 1] and be close my safety network I am a employee who has been bullied by another employee and I’m feeling very ignored and pressured by you

In this correspondence, the Complainant refused to attend the premises of the Respondent in [Location No. 2] which she managed.

On 29th March 2025, the representatives of the Respondent were present in [Location No. 2] to meet the Complainant.

They arrived at 9.30am and were at a nearby café.

The following correspondence also occurred at the same time.

On 28th March 2025, the Complainant sent the following message via WhatsApp: [Name redacted (Manager)] you have no hours available for me in [Location No. 1] as I’ve requested several times and have made you more than aware that I cannot get to [Location No. 2] on the weekdays and was hired as manager for the [Location No. 1] shop not the [Location No. 2] shop I am now counting this as my termination and request my p45 to be forwarded asap And please provide a correspondence address for head office as this now is being viewed as constructive dismissal. This will be my last communication with ye as a company All the best And sorry you have forced this outcome.

Later the same day the Complainant further stated in correspondence:

There seems to be confusion I did not offer a resignation.

I asked that you facilitate my return to work by working in [Location No. 1]. You have not done so and scheduled me to work in [Location No. 2] which is not what I requested. I have been advised that this could be viewed as constructive dismissal but have not taken any steps yet.

To clarify I was hired as manager in [Location No. 1] before there was a shop in [Location No. 2]. I occasionally assisted [Name of Respondent redacted] by covering in other shops but was never fully flexible.

I expect the roster next week to be adjusted so I am working in [Location No. 1] and not [Location No. 2]. Im afraid this is not negotiable and will need a response in the next hour to facilitate childcare arrangements.

I really hope we can come to an agreement on this as it is causing me an unreasonable amount of stress and anxiety.

The correspondence continued as follows:

Respondent: Hello [Name redacted]. there still seems to be confusion about your position and place of work. You were hired as a manager in the business, and flexibility was an expressed term of your contract. We have shops in multiple areas and you have worked in all of them. The business required you to work in [Location No. 2]. We are looking to support you in your return to work. There will be no change to the rota. If you still want to proceed with a resignation, we will respect your wishes in this sense

Complainant: [Name redacted, Location No. 1]: I refer you to my previous message

Respondent: Will you be attending work tomorrow and next week ?

Complainant: If its [Location No. 1] yes weve had several conversations about my lack of transport to [Location No.2] I think Ive been extremely clear Thank you

In spite of alleging to be present at the premises of the respondent in [Location No. 2] at 10am the complainant was not seen on the camera of the respondent as observed by [Name of employee redacted]. Furthermore, the Complainant did not call the Respondent to state she was at the premises.

The Complainant then sent the following message:

Its 10 past 10 Im headed home wasted the little petrol I had left for this meeting disappointed no one turned up I expect to be paid for my full shift as ye didnt turn up to my welfare meeting prior to my shift this morning

On 1st April 2025, the Complainant sent the attached message resigning her employment:

[Name of owners of the business]

I feel that I have no choice by hand in my notice

Which according to my contract is 2 weeks

Between the bullying and the stress of being forced to go to [Location No. 2] when I spent the majority of my employment in the [Location No. 1] shop (since the day it opened) I am feeling extremely let down by ye as my employer

I am sad it has to end this way but I do feel Im being left with no choice as I am being treated a lot differently to my fellow employees

Please forward my P45 and any monies owed including last Saturday as I was i was available for work

Also please advise if my shift pattern for my 2 weeks notice asap in the [Location No. 1] shop as I cannot get to [Location No. 2]

[Name redacted]

In light of this the Respondent sent the following message to the Complainant inviting her to reconsider her resignation and inviting her to air her grievance:

Hello [Name redacted]. We have received your latest message outlining your resignation and other issues. The reference of bullying and stress in regards to rostering you to work in [Location No. 2] is troubling. You were rostered in [Location No. 2] in line with your terms of employment as outlined in your contract. All our employees have flexibility as a term of their employment, in order to facilitate the needs of the business. You are being treated the same as all other employees.

Last Saturday you didn't work, and didn't show to the welfare meeting so you will not be paid for that day.

We are supporting you in you return to work, and so ask that you reconsider your resignation. There are robust public transport links to [Location No. 2] from [Location No. 1] and the commute time is 25mins, all reasonable.

If you want to proceed with your resignation regardless we will respect your wishes.

As you are aware from our previous correspondence, your shifts will be in [Location No. 2]  for next week, and we will organise another welfare meeting prior to your first shift back.

If you cannot attend please let us know it advance.

Later the same day the Complainant replied:

I was hired for [Location No. 1] I will work in [Location No. 1] its not complicated You have forced me to resign please stop ignoring it

On 2nd April 2025, the Respondent replied as follows:

Hello [Name redacted].

In response to your WhatsApp message confirming you no longer with us, and following the tendering of your resignation on the 1st of April, wherein we responded asking you to reconsider and highlighted the grievance process is available for you and all staff at any time, we will move forward and accept you resignation as instructed.

However, please see the grievance procedure attached, which is available should you want to address the issues in your last message.

Grievance Procedure

It is important that if you feel dissatisfied with any matter relating to your work you should have an immediate means by which such a grievance can be aired and resolved.

Nothing in this procedure is intended to prevent you from informally raising any matter you may wish to mention. Informal discussion can frequently solve problems without the need for a written record but if you wish your grievance to be formally recorded and investigated then your grievance must be submitted in writing.

If you feel aggrieved at any matter relating to your work (except personal harassment, for which there is a separate procedure following this section), you should:

first raise the matter with the person specified in your Statement of Main Terms of Employment (Form SMT) either verbally or in writing. From time to time it may be necessary to appoint an external person to investigate any grievance matter; such an appointment will be deemed a last resort and only used where absolutely necessary. Should it be deemed necessary to engage an external person to investigate a grievance, all such investigations carried out will be in accordance with Company procedures. You agree to permit us to share any relevant special categories of data where it is necessary for the purposes of that hearing.

Explain fully the nature and extent of your grievance. If you wish, a fellow employee can be present with you to help you to explain the situation more clearly.

If the problem has not been resolved within ten working days, you should agree a further time at which the matter will be discussed with a view to resolution. A decision reached at this meeting is final.

Kind regards

[Name of Respondent redacted]

The Respondent heard nothing further from the Complainant until the receipt of the WRC claim form.

The Complainant has alleged that she was constructively dismissed by the Respondent. 

This is wholly denied by the Respondent.

The legal test in constructive dismissal was provided by the UK Court of Appeal in Western Excavating (ECC) Ltd c Sharp [1978] IRLR 332, which the Labour Court cited with approval in Tusla v Flynn UDD1810 as follows:

Firstly, Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his position, often referred to as the “contract test”. This requires that an employer be “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” as held in Western Excavating (ECC) Ltd v Sharp[1978] IRL 332.

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so she is justified in leaving.

The question for the Court to decide is whether, because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for her, to terminate the contract of employment.

The Respondent further refers to the case of Debbie Kearns v Silverfern Properties Ltd. [2013] 2 JIEC 0701 the EAT held that ‘In order to succeed in a claim of constructive dismissal a claimant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.’

In the Labour Court case of Caci Non-Life Limited v Daniela Paone [2017] UDD 750, the Chairman, Mr Haugh stated: ‘It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.’

In the decision of Donegan v Co. Limerick VEC (UD828/2011) as referenced in Area Manager v Health Care Company [2019] ADJ-00020041 the Tribunal held that “the respondent’s conduct was not so unfair or damaging to the claimant’s rights and entitlements that she had no option but to resign from her position.” The decision went on to state that, “In particular the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace.”

It is submitted that the Complainant in the present case has failed to identify any alleged unreasonable behaviour.

The Respondent in the present case sought to meet with the Complainant on a number of occasions at a premises which she had managed for a long period of time.

It cannot be said that asking an employee to work at one of their places of work could constitute ‘conduct was not so unfair or damaging to the claimant’s rights and entitlements that she had no option but to resign from her position.’

Furthermore, it is submitted that the complainant failed to act reasonably in resigning and therefore any claim for constructive dismissal must fail.  

The Respondent refers to the decision referenced in Area Manager v Health Care Company [2019] ADJ- 00020041, Murray –v- Rockavill Shellfish Limited 2002/23 ELR331 saw the EAT state: “It has been well established that a question of constructive dismissal must be considered under two headings, entitlement and reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored.

The Respondent refers to the case of Conway v Ulster Bank Ltd. (UD 474/1981) where it was held that the complainant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints.” 

This is further supported by in Redmond’s Dismissal law [third edition Paragraph 19.14], which notes that just as an employer must go through disciplinary procedures before a dismissal for reasons of fairness and natural justice, so too should an employee utilise the employer’s grievance procedure in ana effort to resolve their grievance.      

M Reid v Oracle EMEA Ltd UD1350/2014 as referenced in Area Manager v Health Care Company [2019] ADJ-00020041, where it was stated that “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.”  

The Respondent would further refer to A Worker (Mr O) (complainant) v An Employer (respondent) No.2 [2005] 16 E.L.R 132 as recently cited Tanju v PBR Restaurants Limited [2024] ADJ-00044730 in where the Labour Court stated: ‘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.’ 

The Respondent had robust policies and procedures in place that they invited the Complainant to avail of prior to her resignation although the Complainant declined to avail of these.

The Complainant declined these opportunities and instead elected to resign.

The Respondent at all times sought to engage with the Complainant, including attempting to meet with the complainant on 29th March 2025.

The Complainant at no point met with the respondent following the commencement of her sick leave.

The Complainant, for reasons that are unclear to the Respondent, failed to meet with the Respondent on 29th March 2025 claiming the Respondent’s representatives were not present.

This was categorically untrue as the Respondent was nearby to the premises and was awaiting the complainant’s call.

As such, it is the Respondent’s submission that the Complainant did not act reasonably in resigning her employment before exhausting all the internal procedures.

At the hearing

Mr. X., Owner of the Respondent company

The witness outlined that he owned the Respondent company. The Complainant went on sick leave in February 2025. He said no complaint was raised by the Complainant at that time.

He said that complaints came in, in relation to the selling of vapes to underaged people. He said that there was a HR meeting, and that the Complainant went on sick leave.

He said that he arranged a meeting. The Complainant cancelled the first one. The Respondent cancelled the second one – their van broke down. He said that, at the third one, he was at the shop at 10 am, that he went across to Centra to get a coffee, told the person working in the shop to ‘give us a shout when she arrives.’ The Complainant never showed.

He said that she was the manager of both stores – [Location No. 1] and [Location No. 2].

He said in light of the grievances she had raised, he did not think it was appropriate to put her into the [Location No. 1] shop. They were ongoing issues.

On cross-examination

The Complainant disputed that she had not attended the third meeting, and put it to the witness that had he been there at 10 am, he would have seen her jeep parked outside.

Closing submissions on behalf of the Respondent

Submitted that there was a dispute between two employees, that there was conflicting evidence, which was never resolved by the Respondent, that the Respondent sought to engage with the Complainant but that at no point were they able to meet with the Complainant. He submitted that the Complainant failed to act reasonably.

The Adjudication Officer enquired as to whether the Respondent – in light of the nature and significance of the Complainant’s health issues – had referred her to Occupational Health. The representative for the Respondent confirmed that he had not. He submitted that the Complainant was certified as fit to return to work by her GP (March 24th). He said that the matter was going to be discussed at the return to work meeting which never took place [where both parties submit they but not the other party were in attendance].

Constructive dismissal – burden of proof

The burden of proof is on the Complainant, in a constructive dismissal case.

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘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.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.

Berber v Dunnes Stores

In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) held: ‘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 assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘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 held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in light of the employee’s precarious physical and psychological health.

In this case, re-instatement and re-engagement were not sought. Compensation was the remedy sought, and, if an Adjudication Officer is satisfied that a Complainant has been unfairly dismissed, he/she is required to award a sum which is ‘just and equitable’ in all the circumstances, which has regard to the conduct of the employer, mitigation undertaken by the Complainant, and economic loss including future loss, not exceeding two year’s remuneration, which is a monetary and not a temporal sum.

The question which falls to the Adjudication Officer to determine is whether the employee was constructively dismissed, i.e. whether through its accumulative conduct, the employer committed a repudiatory breach of the employee’s contract, or, alternatively, whether the employer’s conduct was so egregious/objectionable that an employee could not be required to tolerate it any further. I find that it does not. Having carefully considered the evidence and submissions, and applying the relevant law, I find that the Complainant was not dismissed, constructively or otherwise.

The test as to whether someone was constructively dismissed is an objective one and I find that the Complainant has failed to meet the threshold required with respect to constructive dismissal.

The threshold to establish constructive dismissal is a high one, as per the applicable legislation and case law in this area, and I find that the facts of the Complainant’s case do not meet that bar.

The Complainant was very aggrieved at her perceived treatment by the other employee and the

response of her employer.

Generally, there is a requirement on the employee to utilise the grievance procedure, prior to resignation, which the Complainant did not do in this case.

In this case, the Complainant alleges that her employer fatally undermined the trust and confidence between the parties through its conduct (specifically its handling of her allegations of bullying by another employee), thus constructively dismissed her. However, the Complainant had not raised a bullying complaint with her employer at any point prior to going on sick leave in February 2025.

The Complainant was extremely distressed and anxious at hearing. The Complainant outlined serious mental ill health difficulties, in her evidence. Money seemed to be a factor in this case - the Complainant said that she did not have transport to get to [Location No. 2] and that she did not have the price of bus fare to get to [Location No. 2]; and that she asked if she could work up a few hours in the [Location No. 1] store in order to make the money to pay for the bus to then work in the [Location No. 2] store and that was declined. She further pointed to her doctor’s suggestion that she work in the closer store, because she would be close to her support system. The fact she children in school was also cited in her written correspondence.

This appears to involve an interpersonal dispute between two employees, which exceeds the bounds of their employment. The Complainant submitted that she had to move town and she alleged that she received personal abuse from the other employee as well as from family members of the other employee, in the street; and that the matter is with the Gardai. She further outlined that the abuse has continued subsequent to her leaving employment.

The Complainant objects to being the person (of the two employees) who was ‘moved’. In response to a query from the Adjudication Officer as to how the Complainant anticipated this working in practice, she said that one person worked in the store, at a time; and that she was the one doing the rostering. She wished to be rostered to work the same store as the other employee just when the other person was not there. She perceived this to be a solution, in the circumstances, despite the ferocity of the impact alleged. She further alleged that she was subject to personal abuse when she went into the store, on one occasion when the Complainant was off and the other employee was working behind the counter. She also particularly objected to be blocked off the store’s promotions page.

It is important to emphasise that an allegation is not the same as a finding, and that the fact the Complainant sought to raise allegations is not determinative of the outcome of any investigation (or disciplinary) process against the alleged perpetrator. The Respondent employer outlined that there was a conflict of evidence between the two persons involved and that it had not been resolved by the employer, in circumstances where they had never successfully managed to meet with the Complainant. An employer in that circumstance has a duty to both employees, to mind them through the process.

The correspondence from the Complainant to the Respondent on 21st March is quite robust. She acknowledges that she is the manager of both the [Location No. 1] and [Location No. 2] stores, something that she denied in evidence at hearing. [I also note that she submitted on her WRC complaint form that her job was ‘Area Manager’.]

In her March 21st correspondence, the Complainant reiterates that her doctor has certified that she is fit to return to work and that she will be returning on Monday 24th March, in line with that certification. She also threatens to perceive being rostered to do hours in the [Location No. 2] store, as a ‘termination notice.’

She further suggests that she will be returning to her full duties, including rostering, in circumstances where I note that would have involved her doing the rostering for the person against whom she was raising a complaint; and that the employer had received a complaint in relation to manner in which she was rostering the hours, in circumstances where neither matter had been progressed successfully yet through the company’s internal processes, as the Complainant was on a period of sick leave.

I accept the evidence of both sides that they were in attendance at the third scheduled meeting, on Saturday, March 29th, but simply did not see the other. I think the most likely explanation is that they simply missed each other, on the day. The Respondent was a getting a coffee across the road from the shop (and had asked the shop assistant to let him know when the Complainant arrived), and the Complainant parked closeby but did not enter the shop. After waiting for a little while (and not seeing the person she was due to meet), she drove off. Neither party contacted the other while still in the vicinity of the shop, which is particularly odd in the Complainant’s instance as she was rostered to work that day, in the [Location No. 2] shop, subsequent to the welfare meeting.

The Complainant received a contract and an employee handbook from the Respondent. The contract dated 2022 sets out that her place of work is not in one location only. [There was a subsequent (disputed) contract also.] It is not unreasonable for the employer to initially roster the Complainant to one of the two stores in which she worked, in circumstances where she had made very significant allegations against another employee in the other store, and was also the subject of allegations, with a view to investigating the matters and addressing any grievances raised. Clearly, any such approach is time-bound, and the internal procedures would have to be deployed in a timely manner, with a view to resolution, and moving forward. If ongoing, with no utilisation of the internal processes, such a change could constitute penalisation.

The Complainant was given an opportunity to re-consider her resignation and further was given the option to submit a grievance. The Complainant did not raise a grievance with the company prior to going on sick leave. At hearing, she said that she had mentioned it to another employee, but that does not have the effect of putting the company on notice of any issue, or of engaging the company’s internal processes. She submits that she sought to raise a grievance while on sick leave but was not allowed to do so, until the employer had clarified her fitness to engage/work.

The employer responded to the Complainant when she made a reference to bullying in correspondence to it in March 2025 – that seems to be the first time she mentioned it to her employer – by expressing concern and directing her towards the grievance procedure. It also gave her an opportunity to reconsider her resignation and to put in a grievance, even if she was pursuing her resignation.

The correspondence from the employee seemed to indicate that the Complainant had an expectation of getting to decide how the employer would handle the matter, but actually, the employer has a duty to both employees and its obligation is to be fair and impartial. I accept the evidence of Mr. X, the owner of the Respondent business, that he did not think it was appropriate to roster the Complainant in the [Location No. 1] store, in the circumstances, until the company had an opportunity to address the matters which had been raised with the parties involved.

I note that the Complainant’s GP certified her as fit to return to work. Given the significant nature of the mental ill health experienced, a referral to Occupational Health may have been indicated.

Separate to the above, I note that the Complainant filed a WRC complaint alleging constructive dismissal on Monday, 31st March and then resigned her employment on April 1st, seeking her employer roster her for her two remaining weeks (her notice period) in the [Location No. 1] store. It therefore further appears that at the time she filed her WRC complaint, she was still an employee of the Respondent company, and had not been dismissed, constructively or otherwise.

For completeness, in respect of mitigation, financial loss and availability for work, the employee outlined in her evidence that she is in receipt of illness benefit, and therefore not available for work.

I find for the Respondent.

I find that this complaint is not well founded.

Constructive Dismissal