ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00052209

Parties:

Complaints:

Date of Adjudication Hearing:  13/09/2024, 29/11/2024 & Post-hearing Written Submissions

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

These complaints were referred to the Workplace Relations Commission (hereinafter ‘WRC’) under Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts 1977-2015 on 29th May 2024.  Detailed written submissions and an extensive volume of documentation were received on behalf of both Parties.  There was no issue regarding the inter partes correspondence as forming a record of the communications between the Parties.  Following delegation to me by the Director General, I inquired into these complaints and gave the Parties an opportunity to be heard and to present any relevant evidence.  These complaints were heard in Lansdowne House on 13th September 2024 and 9th November 2024. 

The Complainant was represented by Ms BébhinnMurphy BL instructed by Hanlon & Company Solicitors and the Respondent was represented by Mr Peter Ryan of RA Consulting.  Complaint Reference Number CA-00063813-003 was withdrawn and the remaining two complaints proceeded.  The same evidence pertains to both complaints which are inextricably linked.  The Respondent’s two Directors, Ms A and Mr B were present at the two hearing dates when the Complainant’s evidence was heard.  An issue arose regarding what professional medical advice the Respondent had been relying upon to insist that the Complainant undergo a hair strand test.  It was noted that the Complainant’s Solicitors had written directly to the Company Doctor seeking confirmation of his attendance.  The Respondent’s Representative indicated that it would be relying upon the expertise of Ms A and/or would call medical evidence.  It was also confirmed that Mr B was present to support her position.  However, following the closure of the Complainant’s case, the Respondent declined to attend at a further hearing date or proffer evidence on oath citing various difficulties.  This Adjudication Officer offered to accommodate the Respondent with a further hearing date.  When this was declined, the Respondent was afforded time to complete its case by way of written submissions on the proviso that any factual matters in dispute would be untested and accordingly, would be afforded the requisite weight.  There was a further exchange of submissions in 2025.  Further written submissions were received on behalf of the Respondent.  The Complainant’s Solicitors were afforded a right of reply and further written submissions were received on his behalf.  Accordingly, all of the submissions received have been set out in full and considered in detail in the findings and conclusions below.  As these complaints contain sensitive medical and personal information pertaining to the Complainant deemed to constitute special circumstances, with the Parties’ consent, I directed that this matter be heard in private pursuant to Section 8(6) of the Unfair Dismissals Acts and Section 41(14) of the Workplace Relations Act 2015 and further that no details be published that might identify the Parties.

Background:

The Complainant was employed by the Respondent from September 2016 as a Manager of a Residential Care Home on an annual salary of €65,352 until his resignation on 12th April 2024.  He claims that he had been constructively dismissed following his placement on an unspecified form of unpaid leave from 10th January 2024.  He seeks compensation for constructive dismissal under Section 8 of the Unfair Dismissals Act 1977 and the non-payment of his wages under Section 6 of the Payment of Wages Act 1991.  The Respondent contends that it had acted within the terms of the Complainant’s employment contract and denies that he was entitled to pay in the particular circumstances or that he was constructively dismissed. 

Summary of Complainant’s Case:

Complainant’s Direct Evidence

The Complainant gave evidence under affirmation confirming his employment with the Respondent since 28th September 2016 as a Manager of a Residential Care Home for minors on an annual salary of €65,352.  (Note: This figure was agreed between the Parties as representing his gross annual salary.)  He also received well-being and on-call allowances and re-imbursement of VHI of €1,068 annually.  (Note: His 2016 employment contract provided for sick pay whilst his 2019 contract did not but this was not aired herein).  He had enjoyed a good working relationship with the Director, Ms A who oversaw the operation of the Respondent, and had a blemish-free work record.  Mr B was also involved in the operation of the Respondent (noting an immaterial dispute between the Parties as to whether he was a registered Director at the material time).  The Complainant’s contract provided that he reported to the Director of Services, the Board of Management and to Ms A and Mr B.  At the material time, he reported to Ms C in relation to the daily functioning of the Care Home he managed and he also closely liaised with Ms A.  From November 2023 onwards, there was a deterioration in his relationship with Ms A arising from what he contended was unreasonable conduct and a breach of his employment contract forcing him to resign on 12th April 2024.  He contended that this constituted constructive dismissal, outlining the circumstances as follows:

On Friday 24th November 2023, the Complainant had received a phone call from Ms A, expressing her concern regarding his general health and suggesting that he was suffering from either depression, drug addiction or malnutrition.  He had informed her that he was not suffering from any of these conditions.  They had an in-person meeting on 4th December 2023, where there was a discussion around his general health.  He informed her that he had been feeling at a low ebb in terms of energy since having contracted Covid-19, concerns around his family's illness history and a recent relationship break-up.  He confirmed that he had been consulting with his General Practitioner whenever necessary and assured Ms A that his health was fine.  He continued to work as normal.  On 11th December 2023, he received a phone call from Ms A requesting that he attend the Company Doctor.  She also sent a text message stating: “I would really like you to go and talk to him / have blood tests, etc.”  He informed her that he would seek professional advice and revert.  On 12th December 2023, he received a phone call from Ms A requesting that he attend at a Medical Lab for the purpose of undertaking a drugs test the following day.  She indicated that she did not wish to involve the Company Doctor due to professional conflict (noting that he was also GP to Ms A and to the Care Home residents).  The Complainant received advice to the effect that there was generally no issue with an employee being required to attend for standard drug testing but that hair strand drug testing was inappropriate, disproportionate and generally not required.  Accordingly, the Complainant informed Ms A that he consented to tests entailing providing blood and urine samples.  He also messaged: “I’d say go ahead and make that appt but I do want to take it under advisement this evening before I say for sure.”  On 13th December 2023, Ms A texted him: “…hope you’re well are you going to that appointment this morning?”  When he presented at the Medical Lab, he was informed that a hair sample was required.  This came as a complete surprise and he called Ms A who confirmed that she had requested a hair sample test.  He said he needed to take advice.  She followed up with a text: “…I would really like it if you were just do the test”.  He replied: “I’m not happy and feel like I’m being railroaded and would like to seek further clarification.”  Ms A responded: “…would you not just do it today?  I promise you, whatever you are (seeing) as potential problems, I am only seeing as solutions.”  He replied:  “I need to take advice”.  He confirmed to the Lab that he consented only to providing blood and urine samples and no test of any type proceeded.

Later on 13th December 2023, Ms A asked the Complainant to present to the Company Doctor for examination, which he agreed to.  He presented on 14th December 2023 and informed the Company Doctor that he was happy to undergo a medical examination and also consented to all standard drug testing, including providing blood and urine samples.  The Company Doctor informed him that he was solely concerned with his physical health.  The Complainant signed a consent form to allow the Company Doctor to perform a physical examination and for blood samples to be undertaken to assess his physical wellbeing.  The Company Doctor confirmed to him that he had found nothing of concern and that the results of the blood test were expected by the following Monday.  As no stage did he advise that a hair strand test was required.  The Complainant phoned Ms A to update her, and it was agreed that he would attend work to meet with his Deputy Manager before going on his Christmas leave.  It was also agreed that he would work from home on 15th December 2023 once the results of the blood test did not show anything of concern.

On 17th December 2023, the Complainant received an email from Ms A outlining alleged concerns about his fitness to work and asserting that the Respondent was precluded from allowing him to work as normal as follows: “As you are aware, I am extremely concerned about your health and also your current ability to meet the critically important role requirements as they relate to children in our care.  I am committed to supporting you in your return to full health and confirm that this will include payment towards rehabilitation treatment if you choose to avail of this important step.  Given the nature of your work and our obligation to those in our care, we cannot facilitate a return to work until such time as you are fully fit to undertake your normal duties.  I have arranged for your shifts to be covered on an interim basis and though I am aware that you have indicated a wish to return on Monday, I must advise that we are precluded (generally under our service agreement with TUSLA) from allowing you to undertake your duties until you are fit to do so.  Despite your obligations as per the terms of your contract (attached and please see Section 11) you would not consent to normal medical testing (just a basic screening) and the provision of a hair sample during the two recent referrals.  This precludes us from obtaining the independent medical assessments which will facilitate an early return… you are an important member of the team and I really want you to get better and return to work as soon as possible.  It distresses me greatly to see the deterioration in your health and I urge you to take the steps necessary towards a full recovery.  As per my previous offer to help you with a deposit for a house purchase, I would be willing to make direct payments to your landlord (in contribution towards your rent) if you are unwilling to take the steps necessary to effect an early recovery.  While discretionary sick pay was provided to you until now, I am concerned that this may have contributed to your condition and your choices.  It's the extraordinarily large number of sick days over the last few months that has alerted me to this concern...  I don't want to see you deteriorate further and hope that you will respond appropriately.  Please advise when you would be willing to consent to medical assessments which are required and I look forward to receiving your thoughts in respect to the offers as outlined above.”  The Complainant had been gobsmacked by the allegations of drug misuse and called Ms A reminding her that he was in full health and fully fit for work.  Ms A agreed that he could work from home for the following week as he was the only appropriate person available to carry out the relevant duties for that week. 

On 21st December 2023, the Complainant received an email from Ms A regarding materials that had not been returned to a central office, characterising this as a workplace irregularity as follows: “I think it’s another indication of you not functioning in your role.  I hope that you’ve got to speak to your legal advisor this evening and that you will come back to me tomorrow… as I have said on the telephone, what I would like is for you to show you are fit for work by undertaking the medical test I require.”  On 22nd December 2023, the Complainant sent an email to Ms A assuring her that he was in full health and seeking his test results.  He also explained the position regarding the return of materials to a central office.  On 24th December 2023 whilst on annual leave, he received an email from Ms A asserting that the Company Doctor had tried to contact him but he had no missed calls or messages.  She also chastised him regarding the return of the materials: “As manager the responsibility lies with you, and if you ask the team to do something, you are required to check it's done.  My concern is only growing and I am seeing increasing evidence of work not done.  I remain really concerned about your performance and ability to perform your role.  I cannot satisfy myself that you are fit for work, and you keep insisting you are isn't convincing.  Your colleagues and staff team have also shared concerns, and I remain committed to you returning to work.  Can I ask if you've received your legal advice and if you are willing to go for the medical I require next Wednesday.”  On 27th December 2023, the Complainant received a further email from Ms A stating that she did not consider him fit for work and alleging further poor work performance and excessive absenteeism.  None of these issues had been brought to his attention previously.  He gave explanations for all the purported performance issues which were not challenged under cross-examination.  In fact he had been performing well and working hard towards bringing the Care Home back to full compliance following governance issues under his predecessor.  Ms A also made a further request that he undergo hair strand testing relying on an update to the Employee Handbook (not previously furnished to the Complainant) to permit the Respondent to refer an employee to an independent medical practitioner for intoxicant assessment with cause as follows: “The new handbook states: “…the company reserves the right to have all employees medically examined at any time during their employment to assess their continued fitness for work.  Such medical examinations will be paid for by the organisation and the company shall be entitled to receive full details of the results of examinations.  The company has not been able to undertake a medical assessment of (your) continued fitness for work, but as Director and on the basis of the reports, my observations, etc. I am satisfied that you are not, currently, fit for work and this has primacy over your own opinion - particularly as you are not consenting to the medical examination (which the company reserves the right to undertake).  You are correct in saying that ‘(I) cannot force you’ to provide a hair sample but similarly, you cannot force me to allow you to return to work when I am not satisfied that you are fit to undertake your duties.  Importantly, given the responsibility for children in care, various regulatory obligations apply to both the company and to me (as Director) -  these have primacy and the risk is too great.  Sitting alongside these concerns is my very genuine concern for your health, and my resolve to help you.  You are a valued manager and I wish you to return to your duties once you are in full health.  I must ask you now to apply for statutory sick pay, as your sick days have been exhausted.  As a company, we have been very generous regarding leave but you have exhausted this, and we are not in a position to extend you anymore sick pay.”  She also stated that she was arranging for the collection of his work devices but did not follow through on this.  In fact, later on the same date and notwithstanding her view that he was unfit for work, Ms A sent the Complainant a work request requiring him to use his laptop to action same.  On 28th December 2023, he had a telephone conversation with Ms A wherein he advised that he could not access legal advice until 3rd January 2024 in order to respond and she had agreed that this was not unreasonable.

On 2nd January 2024, the Complainant received a further email from Ms A stating: “Further to my e-mail December 17th last… I wish to reconfirm that we are fully committed to supporting you in your return to full health and work.  As previously outlined, we require you to consent to the medical assessments before we can facilitate an early return to work.  Having requested your thoughts on the various offers…, I note that I have yet to receive your response.  Unfortunately, and for the reasons outlined we will not be in a position to facilitate your return until such time as the necessary and complete medical confirmations are received.  Should you require any details or confirmation for your social welfare illness benefit application, please let me know and I will be happy to assist.  I look forward to receiving your thoughts and supporting you in your return to work.  On 2nd January 2024, the Complainant emailed Ms A indicating that he still had to seek legal advice as advised during their recent telephone conversation.  He again requested that the results of his medical examination with the Company Doctor be furnished as being required to prepare his response.  He reiterated that he was not in ill health and asked her to refrain from any such narrative.  He further requested to take his accrued annual leave until such time that the impasse was resolved.  On 5th January 2024, the Complainant received an email request from Ms A for a remote meeting to be held on 10th January 2024.  He confirmed his availability noting that he was still awaiting the results of the medical examination.  He also confirmed that he had been unable to access any Social Welfare payment as he had not been certified unfit for work by any medical professional.  On the same date, Ms A replied indicating that he had not responded to two separate messages from the Company Doctor.  The email further stated: “As per my previous emails…, I note you would not consent to normal medical testing (as per your contractual obligations) and provide the necessary hair sample.  Your full cooperation is required for the reasons as outlined and in order to facilitate an early return to work.  Please let me know when you are willing to consent to the medical testing and provide the necessary hair sample.  Immediately upon receipt of your confirmation, I will arrange for the appointments to be made.  In the meantime, I expect that your own GP can assist with the social welfare documentation.”  On 9th January 2024, he had a further exchange of emails with Ms A confirming his attendance on 10th January 2024.  He again confirmed that there had been no contact from the Company Doctor noting that the Company Doctor had indicated during his examination that the Respondent would forward the results to him as it had commissioned the examination.  He again indicated his preference that they meet after the results had been furnished.  He confirmed that he could not access Illness Benefit as his own Doctor could not certify him as being unwell.  He also requested an attendance list and an agenda for the meeting.  He received a response from Ms A confirming the attendees but no examination results or agenda.  The meeting proceeded on 10th January 2024 with Ms A and Ms C present.  The Complainant confirmed that he had been advised that hair sampling was not accurate or reliable and that he would not be submitting to same.  He outlined his concerns including the stress that the situation was causing him, the financial impact of having no earnings, the fact that his GP would not certify him sick, the absence of the results from the Company Doctor and what the staff had been told.  However, the only issue that they were willing to discuss was whether he would consent to a hair strand test.  (Note: This was confirmed in meeting minutes provided by the Respondent.)

By email to Ms A on 12th January 2024, the Complainant made a Data Subject Access Request (DSAR), confirmed his fitness to work and raised a number of critical questions.  In particular, he stated: “I would firstly like to clarify that I am currently in no way unwell and am more than willing to return to my role as unit manager….  During the meeting on Wednesday last you indicated that my own GP could assist me in claiming social welfare sick pay benefit however as I am currently not unwell I cannot do so.  I have been advised to claim any such benefit when I am in full health would in fact be fraudulent.”  Referencing four previous requests, he again sought the results of his examination and blood test from the Company Doctor.  He sought clarification of what leave he was on given that he had not been signed off as sick by any professional.  He queried why the team he manages had been informed that he would be on leave until the end of January 2024 when no such conversation had been had with him.  He also sought clarity as to what financial supports were being made available to him during this period as: “Dublin is a very expensive city and I have financial commitments that I have to honour on a monthly basis.  I have no other income other than my salary and again as I am not unwell I am not entitled to any social welfare payment.”  On 16th January 2024, he obtained a letter from his own GP confirming: “I reviewed him on 16th of January 2024.  His medical examination was normal.  I performed a random drug urine test.  It was negative and he was fit for work.”  On 29th January 2024, he received an email from Ms A stating that his DSAR was being prepared.  She restated her view that he was unfit for work and claimed that staff had not been told anything improper.  Ms A further stated: “You will appreciate that it is the professional medical practitioner who will determine what tests are required.  As outlined we have not received results from the incomplete assessment and I am sure you will recognise that these will be of little value.”  On the same date, the Complainant emailed Ms A pointing out that she had failed to clarify what type of leave he was placed on and informing her that his own GP had certified him fully fit for work.  He also advised Ms A that he was not contractually obliged to submit for hair strand testing, and that this requirement was not standard and was disproportionate.  On 2nd February 2024, Ms A emailed the Complainant referencing her previous emails and stating: “As previously outlined, we are fully committed to supporting you in your return to full health and to work.  I have also emphasised your obligations as they relate to the medical assessments and that is a matter for the professional medical practitioners to determine which tests are required.  While I note your contention that you have ’made yourself available for urine and blood testing’, you will be aware that selective tests are of little or no value.  Please advise when you are willing to make yourself available for each and all of the required tests.”  He confirmed that at no stage did any medical practitioner express a view that he required a hair strand test, either verbally or in writing.  On the same date, Ms A forwarded the Complainant’s partial HR file obtained via an Administrator in alleged satisfaction of his DSAR. 

On 7th February 2024, the Complainant emailed Ms A again requesting clarification as to his leave status and raising an issue regarding an illegal deduction from his wages under Section 5 of the Payment of Wages Act 1991 in circumstances where he had not been paid for that month.  He sought clarification by 9th February 2024 and also queried the completeness of his DSAR.  He further confirmed: “With regard to your continued and unfounded speculation regarding my health may I remind you that I am certified healthy and fit for work.”  Later on the same date, Ms A copied him in on an email requesting Payroll to investigate his payment of wages query.  In response to a further email of the same date from Ms A asking him what he meant regarding the wages so she could refer to Payroll, on 8th February 2024, he emailed Ms A confirming a deduction from his January salary with no legal basis and objected to Payroll being copied in with sensitive personal information contained within the email thread.  Having heard nothing back, on 13th February 2024, he emailed Ms A again regarding all of these issues.  On the same date, Ms A responded with a lengthy email referencing her previous emails and stating that that as the Complainant had decided not to comply with his contractual obligations, he was not entitled to the payment of his wages as follows: “Though we remain committed to supporting you in your return to work and full health, we (and Tusla) must be satisfied that all employees are fit to meet the needs of those entrusted to our care.  You will appreciate that it is against this background that you are required to meet your obligations as they relate to the medical assessments.  Furthermore, this is a contractual requirement (as per your contract of employment) and you cannot be under any doubt that it is a matter for the professional medical practitioners to determine which tests are required.  Your decision to breach your contractual terms precludes you from any entitlement to remuneration and you were previously advised that as company sick pay had been both exceeded and exhausted, I was willing to provide relevant information to support your social welfare application.  Regarding your reference to leave, this is a term which was introduced by you (in your e-mail of January 12th) and should be considered as a misnomer.  While your term was used in a more general sense to advise colleagues that you were absent (please see the note of our call on January 10th last) this was shortly after you requested to take some of your outstanding annual leave.”  The email further maintained that his DSAR had been fully satisfied apart from a “… a photo which it is alleged, belonged to you and was seen by others.  You will appreciate the rules governing protected disclosures and that we will be required to investigate the allegations upon your return to work.”  This introduced for the first time, the prospect of the imposition of a disciplinary process against the Complainant in respect of an apparently inappropriate photograph which had been unearthed in October 2023 and which had nothing to do with him.  Finally, the email raised the prospect of the Complainant’s position changing owing to workplace restructuring and introducing the prospect of redundancy for the first time as follows: “Separately, I should advise that you are likely to see some changes upon your return to work as we provided Tusla with notice that we will be ending the remaining Mainstream Unaccompanied Minor contract at your Centre.  In future, this premises will operate as a Section 5 Temporary Accommodation Centre.  This may have staffing implications as we anticipate that some colleagues will not wish to transition to roles which are less aligned to their social care qualifications and/or career preferences.  Where this is the case, voluntary redundancy applications will be considered and this is likely to result in certain changes which are yet to be determined.”

Thereafter, the Complainant’s Solicitors took over and tried to engage with both Ms A and her Representative via an ad nauseam exchange of correspondence (it is not proposed to set this correspondence out in full particularly as it refers to matters extraneous to the WRC).  An initial letter of 7th March 2024 from the Complainant’s Solicitors to Ms A raised all of the aforesaid issues including the lack of clarity regarding his unpaid leave in breach of contract, the non-payment of his wages since January 2024, the absence of a disciplinary process in relation to any alleged misconduct and the failure to furnish the results of his examination and blood test with the Company Doctor but to no avail.  The correspondence clearly advised that a failure to remunerate the Complainant and clarify these issues within seven days would result in a referral to the WRC.  Regarding Ms A’s requirement that the Complainant undergo a hair strand test it stated: “… our client is in no way obliged to undertake a hair follicle sample test.  There is no statutory requirement for an employee to undergo testing for intoxicants in the workplace and although our client finds your request humiliating, upsetting and insulting our client has already confirmed his consent to attend at a G.P. and undergo a physical examination and provide blood and urine.  Anything further is unreasonable, inappropriate and disproportionate.”  On 8th March 2024, the Complainant’s Solicitors made Freedom of Information and DSAR requests including any documentation relating to the photo being attributed to the Complainant.  The letters also advised Ms A to avail of immediate legal advice and requested that she and/or her Solicitors revert directly and not communicate with their client in relation to these matters.  In apparent response, Ms A sent the following WhatsApp message to the Complainant on 10th March 2024: “Hello.… I received your solicitors letter and that's fine.  It's just HR processes, I understand.  As before…, on a human level I just want to say I care about you.  That this wasn't a good time for me to not have you in work, but my concern for your health was more important than letting this carry on.  You can still call me anytime.  And again, I want to extend a genuine offer of help, and confirm I want to support you getting back to work.  I'd like you to work with me.  Whatever the issue is we can face it, and move forward. I really mean that.  Please, go for the test and let's just deal with whatever together.”  On 11th March 2024, the Complainant’s Solicitors responded objecting to this direct contact with their client in disregard of their request on his behalf to desist from doing so as being inappropriate.  On 19th March 2024, Ms A responded objecting to the tone of the Solicitors’ letter in the strongest of terms and seeking an apology and withdrawal of the “allegations and claims” made on behalf of the Complainant.  She also indicated that she would continue to communicate directly as she deemed necessary and appropriate.

A follow-up letter from the Complainant’s Solicitors to Ms A copying in the Respondent’s Representative dated 21st March 2024 reiterated his position and sought a response by return, warning that failing same the Complainant would have no other option but to consider himself constructively dismissed.  By email dated 25th March 2024, the Respondent’s Representative replied: “I can confirm that I shall be pleased to support (the Complainant’s) return to work in accordance with the requirements as outlined.”  By email dated 27th March 2024, the Complainant’s Solicitors sought confirmation of what these requirements were and when they had been outlined to the Complainant along with a substantive response to its initial letter.  If further urged that immediate legal advice be obtained and threatened legal recourse if matters were not rectified.  The Respondent’s Representative responded by email dated 2nd April 2024 placing reliance upon the correspondence from Ms A to date and stating: “…though I had suspected that (the Complainant) was reluctant to engage constructively around an early return to work, it’s a shame that you have been unable to prevail upon him to do so.  Regarding your queries…, I believe that the organisation’s requirements should be clear from the various communications.  However and in short, (the Complainant) is contractually obliged to submit for medical examination, and you will appreciate that it is a matter for the relevant professionals to determine the nature of tests required.  You should also be aware that (the Complainant) has not acquiesced to the testing required.”  It was denied that the Complainant had been placed on any type of ‘leave’, was the subject of any disciplinary investigation or action or had been suspended.  It asked the Complainant’s Solicitors to “refrain from creating obstacles and making unfounded allegations” and stated that it was hoped that the Complainant would engage constructively around an early return to work. 

Accordingly, the impasse continued whereby the Complainant remained on an unspecified form of unpaid leave without any proper contractual basis over a protracted period of time and was unable to access Social Welfare.  He had also become the subject of spurious allegations in relation to his use of illicit drugs, work performance and absenteeism.  These matters seemed to be constructed in an attempt to justify his suspension without pay as he had no prior notice of same, they had not been fairly put to him and at no stage was the Complainant subjected to either an investigation or disciplinary process.  The Complainant had not been permitted to return to work since 27th December 2023.  Having exhausted his annual leave, he had not been paid any wages since 10th January 2024.  Nor was he ever furnished with the examination and blood test results from the Company Doctor or certified unfit for work notwithstanding a written request including his authority directly to the Company Doctor for same.  Given that he had been left in financial hardship without access to Social Welfare, the Complainant did not consider the purported concerns of Ms A and limited offers of financial assistance to be genuine.  He also believed a formal grievance to be futile in circumstances where the conduct being complained of related to whom he regarded to be the sole Director of the Respondent.  He came to the view that the impasse could not be resolved and due to economic necessity, he was forced to resign from the Respondent and to seek alternative employment.  His resignation was confirmed in a letter sent on 12th April 2024 from his Solicitors to Ms A referring to the absence of a substantive response to its correspondence and stating: “Due to your failure to engage with our client the current situation has become untenable and our client finds himself with no other option but to consider himself constructively dismissed.”  In a further email dated 17th April 2024, the Complainant’s Solicitors raised various queries regarding the Respondent’s position that only a hair strand test would suffice.  Confirmation was sought of what ‘relevant professionals’ had determined that a hair strand test was necessary, whether the Complainant had attended with them, when any such advice was given along with a copy of same and related documentation.  It was noted that at no stage had the Company Doctor advised that such a test was necessary.  It was again pointed out that the Complainant’s contractual obligations required him to attend a medical professional which he had complied with and he had offered to do so again.  However, they did not extend to undergoing a hair strand test.  It sought confirmation of the terms of the Complainant’s employment which permitted the Respondent to retain him on unpaid leave in the circumstances and in the absence of any investigation or disciplinary action; the processes and procedures being relied upon; a substantive response to the queries raised to date and confirmation of how the Respondent was committed to ensuring his return to work noting that he was willing to engage constructively. 

Following a further exchange regarding the documentation exchanged to date, on 24th April 2024, the Respondent’s Representative affirmed its position that notwithstanding his claim of constructive dismissal, the Complainant could return to work if he consented to the medical test in question i.e. hair strand testing, being the central and only issue precluding a return to work.  It was also contended that he “would not consent either to normal medical testing or the provision of a hair sample.” and “I have also advised (i) that it is a matter for the relevant medical professionals to determine the nature of tests required and (ii) that (the Complainant) has not acquiesced to the testing required.  The suggestion that someone might provide a blood sample, but not consent to the medical testing of such a sample seeks to obfuscate, but (the Complainant’s) contractual obligations are clear.”  Regarding the source of the advice that hair strand testing was required of the Complainant, it stated: “Questions in respect of medical opinion, its justifications and your client’s acceptance of same may be argued at the WRC if this proves necessary.”  The letter called upon the Complainant to reconsider his position and resignation.  There was a final exchange of correspondence with each side reaffirming their respective positions.  In a letter dated 26th April 2024, the Complainant’s Solicitors took issue with the suggestion that the Complainant had not consented to medical testing per se.  (Note: It was not in issue at the hearing that he had consented to providing blood and urine samples and had in fact provided a blood sample to the Company Doctor.)  Written confirmation of his employment status was also sought for the purposes of an application for Social Welfare.  The Respondent’s Representative responded on 29th April 2024 refuting that he had been constructively dismissed and provided a letter stating that he had been absent from work since December 2023 and had chosen to claim constructive dismissal.  These complaints were then referred to the WRC on 29th May 2024.

On 1st May 2024, the Complainant received a further email from Ms A denigrating his Solicitors’ advices: “I’m assuming your solicitor isn’t a friend and is a professional appointment, whilst I’m sure she’s operating in what she believes are your best interests, I don’t feel you are getting the right advice.”  She insisted that he had an addiction problem and offered support through any rehabilitation programme, noting that a current member of staff had availed of an alcohol treatment programme and: “The same is available to you.  Drugs and alcohol addiction is an illness… and I remain committed to supporting you.”  She further repeated her view that hair strand testing was required as other forms of testing would not detect any drugs taken outside of a 48-hour period: “… I said to you on the phone, you offering to do late bloods or urine was of no consequence as the time for substances to show up had passed by 48 hours, going from when I first expressed my concerns.  I said to you in no uncertain terms, you had not satisfied me that you were ok, and I required hair testing.  I'm just taking this as an example, when all that matters is that I asked you to do hair testing, and you wouldn't.  I care about you and I'm appealing to you once again to take the hair test and work with me.”  The Complainant found her direct interventions upsetting and aggravating.

In terms of mitigation, the Complainant provided uncontested vouching confirming that he had immediately sought alternative employment.  He confirmed that he was successful in obtaining new employment with two start-up companies commencing from 13th July 2024.  By way of remedy, the Complainant sought compensation as opposed to reinstatement owing to the breakdown in the employment relationship.  He sought compensation for constructive dismissal under the Unfair Dismissals Act 1977 in respect of the 13-week period between his resignation and commencing new employment on 13th July 2024 of €16,328 @ €1,256 weekly.  He estimated future losses of €4,520 annually in terms of a reduction in salary and loss of on-call allowance.  In relation to any further loss of statutory entitlements, as restructuring was intimated which might have resulted in the Complainant’s position being made redundant, he sought additional compensation for his lost entitlement to a statutory redundancy payment of circa €9,700 based upon his length of service.  He also sought compensation for the non-payment of his wages under the Payment of Wages Act 1991 in respect of the 13-week period between his unpaid suspension from 10th January 2024 and resignation on 12th April 2024 totalling €16,328 @ €1,256 weekly. 

Cross-Examination of the Complainant

Under questioning from the Respondent’s Representative, the Complainant agreed that he had previously thought highly of Ms A and they had enjoyed a good working relationship.  He accepted that there had been an open door and he could raise professional concerns with Ms A and Mr B and to a degree with Ms C.  He also agreed that he had shared personal information with Ms A who had offered to help him with a deposit for a house purchase.  He said he had enjoyed his work and had been keen to return to his role in January 2024.  The correspondence and text messages between the Parties was put to the Complainant and he was repeatedly asked what efforts he had made to engage with the Respondent to come to a resolution.  He replied that he had written to Ms A seeking clarification on various issues including the basis for his unpaid suspension where his rights were being breached.  He had clearly informed Ms A that he could not avail of Social Welfare in circumstances where he could not be certified as being unfit for work as he was not unwell and he wished to return to work.  He confirmed that he would not be providing a hair follicle sample but had offered to submit to other forms of drug testing.  However, it was clear from all their communications that Ms A would not yield on her requirement that he underwent a hair strand test and an impasse had ensued.  He further contended that Ms A had refused to respond to his queries until he underwent a hair strand test.  He regarded the requirement to undergo a hair strand test as a ‘redline issue’ as it breached his rights.  He did not undergo the hair strand test ‘under protest’ for the same reason. 

It was put to the Complainant that he had not invoked the Respondent’s formal grievance procedure which was opened.  He replied that as his queries to Ms A went unanswered and he did not know what type of leave he had been placed on, he was unaware of the nature of the grievance to pursue.  He only knew that he was not being allowed to return to work and was not being paid.  It was put to the Complainant that a letter of grievance would have differed from his correspondence he had sent to Ms A in that it should have been directed to Ms C in the first instance.  The Complainant maintained that there was no point in raising a grievance with Ms C when the complaint was against Ms A, Ms C reported to Ms A and there was no one to whom Ms A reported.  He could not recall whether he had read the grievance procedure before resigning.  When asked why he did not appeal, he replied that as Ms A was at the top of the food chain, there was no one else to whom he could appeal and the grievance procedure did not specify anyone.

The Respondent’s Representative sought to put to the Complainant, information apparently sourced online regarding various drugs testing methods and the invasiveness of each method to test the veracity of his position that hair strand testing was more invasive.  In particular, he sought to put it to the Complainant that blood and urine testing would be more invasive than hair strand testing.  This Adjudication Officer queried whether the Respondent intended to call expert evidence grounding this line of questioning.  The Respondent’s Representative confirmed that he did not intend doing so and this was ‘general knowledge’.  This Adjudication Officer directed that the questioning focus on the matters in issue, the state of knowledge of the Parties at the time and whether professional medical advice had been received to the effect that hair strand testing was required in the particular circumstances.  The Respondent’s Representative then sought to put it to the Complainant that hair strand testing provided more accurate results as it can detect drug use over a significantly longer period than blood and urine testing.  The latter only detected drugs taken within a 48-hour window and such testing could be delayed.  Objection was taken to this line of questioning in circumstances where there had been no allegation under any disciplinary process that the Complainant had been under the influence of drugs.  The Respondent’s Representative sought to question the advice the Complainant had received to the effect that hair strand testing was inappropriate and disproportionate.  He replied that it was in breach of his employment rights.  For the record, he confirmed that he had no concern that any type of drugs testing would have returned a positive result.  A letter from the Company Doctor dated 26th August 2024 was put to the Complainant stating: “On 14/12/23 (the Complainant) attended as arranged and consented to general blood tests but refused the drug screening.  When (Ms A) phone to see if all testing had been completed, she was informed of the refusal of drug testing and at this time she advised that the medical report would not be required as all testing was not completed and the requirements where not met.  In conclusion, this gentleman presented to (the Medical Lab) for the purposes of Company required tests and drugs screening but he declined drug testing.”  Objection was taken with the insinuation that the Complainant had declined drug testing per se as it was undisputed that he had submitted to blood testing with the Company Doctor on 14th December 2023.  The Respondent’s Representative also suggested that the Company Doctor had in fact made the referral for the hair strand test at the Medical Lab.  This Adjudication Officer noted that nowhere in the letter from the Company Doctor which the Respondent sought to rely upon without calling him was this indicated and it would be necessary for him to give evidence under oath if this was being contended.

The Complainant refuted the Respondent’s position that Ms A’s correspondence was supportive and said he had found it disingenuous and accusatory.  He agreed that he had not availed of the rent payments or rehabilitation offered to him.  He took no issue with the various clauses from his employment contract and 2019 Handbook permitting the Respondent to refer an employee to a suitable medical practitioner nominated solely and exclusively by the Respondent; providing that the Respondent is entitled to seek a full medical report in order to make reasonable decisions in relation to an employee’s capacity to undertake the terms and conditions of their employment and “If there is any indication that you may be under the influence of alcohol or drugs whilst at work the Organisation reserves the right to request you to leave work immediately without pay for the day.  You may also be required to be assessed by an independent medical practitioner nominated by the company for this purpose.”  He said that he had attended with the Company Doctor as requested notwithstanding the conflict of interest.  Regarding his claim for unpaid wages, it was put to him that he would have been able to return to paid work if he had submitted to the hair strand test.  He repeated this had been a redline issue as being in breach of his rights, inappropriate and unnecessary. 

Contractual Provisions regarding attendance with a Medical Practitioner and Drugs Testing

It is common-case that the Complainant’s first written contract of employment was signed on 20th October 2016 and was updated by way of signed contract and Handbook on 11th July 2019.  In relation to his contractual obligations to attend a medical practitioner or undergo a drugs test, Paragraph 11 provided:

“11.4     The Organisation retains the right at any time during employment to refer an employee to a suitable medical practitioner nominated solely and exclusively by the Organisation and to seek a full and medical report in order to make reasonable decisions in relation to the Employee’s capacity to fulfil their terms and conditions of employment.

11.5      If there is any indication that you may be under the influence of alcohol or drugs whilst at work, the Organisation reserves the right to request you to leave work immediately and without pay for that day.  You may also be required to be assessed by an independent medical practitioner nominated by the Company for this purpose.  Any employee found to be under the influence of alcohol or drugs whilst at work may be subject to the Organisation's disciplinary procedure.”

In relation to the application of the Company Handbook, Section 19 further provided: “In addition to the terms and conditions of employment set out in this document, the Organisation has in place an Employee Handbook which details further the policies and procedures which operate within the Organisation.” 

Although Ms A had referenced an updated Handbook in the course of correspondence pertaining to these complaints as set out above, the Respondent has sought only to rely upon the 2019 Handbook.  Accordingly, it is unnecessary to set out the variances between the two versions.  In relation to medical referrals and drugs testing, the relevant portions of the 2019 Handbook are set out as follows:

Under the heading: ‘Sick Leave and Fitness to Work’, the 2019 Handbook provided: “The Organisation expects acceptable levels of attendance from employees in fulfilling their statement of terms and conditions of employment.  To this end, Management retain the right at any time during employment to refer an Employee to a suitable medical practitioner nominated solely and exclusively by the Organisation and to seek a full medical report in order to make reasonable decisions in relation to the Employee’s capacity to fulfil their terms and conditions of employment.  Circumstances which are likely to give rise to such a report being sought are where absence is excessive or there are patterns of absence leading to a suspicion of abuse of sick leave or where it is felt that Employee’s health is having a negative impact on work performance.  The Organisation is committed to encouraging employees to return to work following periods of absence.  However, persistent and or excessive absenteeism may result in disciplinary action or frustration of the Employee’s contract of employment.”  Under the heading: ‘Short Term Absence Procedure’ it provided: “Records will be retained of Employee sick leave and where this is deemed excessive, or where patterns of leave are identified, the Employee will be notified of the Organisation's concerns and the steps that will be taken.  Such matters may be dealt with through the disciplinary procedure where appropriate."  Under the heading: ‘Drugs and Alcohol’, “…the use of non-prescribed illegal substances, the abuse of prescribed legal substances or the use of alcohol is strictly forbidden during working time or at work.”, and may give rise to disciplinary action, up to and including dismissal.  Under the heading: ‘Health Monitoring – Drug and Alcohol Testing’ it provided: “Given the potential safety risks arising out of Employees being intoxicated in the workplace the Organisation will carry out the following testing as part of the Organisations Health Monitoring: - During employment employees may be subject to random health screening onsite in line with the Organisation’s Health Monitoring Programme, this includes alcohol and drug screening.  The screening will be unannounced and carried out at random.  With Cause Drug and Alcohol Testing will be carried out when an Employee is suspected of being under the influence of an intoxicant.  Testing will be conducted by an occupational medical physician.  Testing will be carried out offsite.  All employees are expected to cooperate fully with such testing as a condition of continued employment with the organisation and in accordance with the Organisations Health Monitoring Programme.  Failure to cooperate with testing may be subject to disciplinary action, up to and including dismissal.  Employees who test positive for the presence of intoxicants may be subject to disciplinary action, up to and including dismissal.”

Complainant’s Pre-hearing Submissions

On behalf of the Complainant, it was contended that the Respondent had acted both unreasonably and in fundamental breach of his employment contract such that he was entitled to claim for unfair constructive dismissal.  It appears from the inter partes correspondence between the Parties that Ms A believed the Complainant to have an illicit drug addiction rendering him unfit for work based upon her view of his appearance.  There was no medical or other foundation for this belief.  He was never sent home from work under suspicion for consumption of intoxicants.  No investigatory or disciplinary procedures were commenced which might have afforded the Complainant fair procedures.  Ms A had unilaterally insisted that the Complainant undergo hair strand sampling for drug testing purposes in the absence of any medical advice that same was necessary, contractual basis or his consent.  The Complainant at all times consented to blood and urine sampling which he believed was proportionate.  Based upon the evidence adduced, the Respondent has treated the Complainant in an egregious manner including making unsubstantiated allegations of illicit drug use, unsubstantiated allegations regarding his performance, suspension without basic pay; a failure to answer his queries regarding same; the absence of any formal process or fair procedures; the lack of transparency or legal basis for the process engaged in; the failure to provide test results; and the misapplication of the relevant Employee Handbook which was retrospectively amended to make the case that he was in breach of same.  It was submitted that this amounted to wholly unreasonable conduct on behalf of the Employer leaving the Complainant with no option but to resign from his position.  In this respect, it was submitted that the Respondent had been entirely unreasonable, that is to say without reason or basis, in subjecting the Complainant to any form of disciplinary process including that provided for within the Company Handbook, if that was indeed what the Respondent was doing without notice to the Complainant.  Without prejudice to the aforementioned, even if there existed circumstances which would ground any formal investigation, the Respondent acted entirely unreasonably in failing to follow fair procedures.  Further or in the alternative, the Respondent failed to progress any investigation in an orderly or timely manner which may have at least alleviated some of the stress which the Complainant suffered.

It was further contended that at all times, the Complainant had consented to blood or urine testing over and above his contractual obligations.  It was submitted that, as a matter of settled law, medical examination does not include drug testing by way of bodily fluids or other corporal sampling, and employers can only insist on intoxicant testing their employees when either the employee consents; or a drug and alcohol testing policy has been developed in conjunction with staff which provides for testing with cause, or a clearly set out random testing regime which is proportionate and necessary pursuant to the employer’s obligations under the Safety, Health and Welfare at Work legislation; and / or there is provision for same in its Safety Statement.  The Complainant is a stranger to and puts in issue whether or not the Respondent’s Safety Statement provides for same, or what consultations took place with staff in development of the Drugs & Alcohol Policy.  It is respectfully submitted that the provisions in either Handbook only permit the Respondent to refer an employee to an independent medical practitioner for intoxicant assessment with cause.  However, the clauses relied upon do not withstand legal scrutiny as the nature of the assessment permitted by the independent medical practitioner is not identified on either Handbook.  On their face, the clauses do not identify the nature of the testing and accordingly there is not a fully developed intoxicant policy which sets out what types of testing must be undergone by employees.  Therefore, the Employer was also acting outside its powers when it demanded a hair sample from the Complainant, particularly when he at all times reasonably consented to both blood and urine sampling.

Suspension without Pay and Complaint under the Payment of Wages Act 1991

In relation to the Complainant’s unpaid suspension from 10th January 2024 until his resignation on 12th April 2024, reliance was placed upon Section 5 of the Payment of Wages Act 1991 providing: “(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.”  In the High Court judgment in The Governor and Company of the Bank of Ireland -v- James Reilly [2015] IEHC 241 (paragraphs 40-41), Noonan J. stated the following with regard to the suspension of an employee: "The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing.  It is potentially capable of constituting a significant blemish on the employee's employment record with the consequences for his or her future career.  As noted by Kearns J. in Morgan -v- Trinity College Dublin [2003] 3 IR 157, there are two types of suspension, holding and punitive.  However, even a holding suspension can have consequences of the kind mentioned.  Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. "  The Court then outlined the circumstances when a 'holding suspension' may be justified: "Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question.  It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct.  It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer.  In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.” 

It was submitted that there was non-compliance with the law cited above and/or any reliance placed by the Respondent on same is entirely undermined by its own denial that the Complainant had been 'placed on leave' or that he was suspended when that was the factual reality.  Furthermore, the2019 Handbook only provides for an employee’s paid suspension under the heading ‘Disciplinary Hearing Process’ as follows: "An Employee may be suspended on full pay at any stage during the disciplinary process, even before any allegation is presented to the Employee.  This is done with no inference of guilt or otherwise against the Employee.  Suspension will be for a reasonable period only and will often depend on the duration of the disciplinary investigation process."  Furthermore, his contract of employment provides for unpaid suspension or a deduction of wages which is only operable pursuant to the Respondent’s disciplinary process as provided for in the 2019 Handbook under 'Alternative Disciplinary Sanctions' as follows: "In addition to the sanctions outlined in stages 1 to 4 of the disciplinary procedure, the Organisation also retains the right to impose alternative disciplinary sanctions as outlined in this section.  This will only occur where deemed appropriate.  Such action is an optional stage of the procedure, rather than a required stage.  Where appropriate, alternative sanctions which may be imposed may include a transfer, demotion, suspension without pay, or withholding of a salary review for a period or removal of another benefit.” 

Complaint of Unfair Constructive Dismissal

Albeit not expressly referenced, Section 1(b) of the Unfair Dismissals Act 1977 provides for constructive dismissal as follows: “dismissal, in relation to an employee means-… (b) 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 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 Complainant further relied upon case law on constructive dismissal including Malik -v- Bank of Credit and Commerce International S.A. [1997] ICR 606 at 621 which held that an employment contract is subject to an implied term that an employer shall not "... without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”  In Courtaulds Northern Textiles Ltd -v- Andrew [1979] IRLR 84, Arnold J. stated: "It was an implied term of the contract that the employers would not without reasonable and proper cause conduct themselves in a manner calculated or likely to destroy or seriously damage the confidence and trust between the parties”.  In BBC -v- Beckett [1983] IRLR 43, it was held that an employee may resign as a result of a disciplinary enquiry if the grounds for the enquiry are themselves unreasonable or if a disciplinary enquiry led to disciplinary action which was disproportionate to the alleged wrong as follows: "The imposition of a punishment which is "grossly out of proportion to the offence" (per the Industrial Tribunal in Theedom -v- BRB [1976] IRLR 137) can amount to a repudiation of a contract of service.”

On behalf of the Complainant, it was acknowledged that there is usually an obligation for an employee to engage with an employer's grievance procedures before resigning and claiming constructive dismissal.  However, the failure to raise a grievance or the absence of strict adherence to a grievance procedure is not fatal (A Worker [Mr O] -v- An Employer (No. 2) [2005] ELR 132).  This is particularly the position in the instant case where the Complainant made all reasonable efforts to raise queries and concerns about the processes at issue.  Furthermore, the raising of a grievance in the particular circumstances was of even less value when the person subject to the complaint was the apparent sole Director of the Respondent.

Accordingly, the Respondent’s refusal to pay the Complainant’s wages from 10th January 2024, forcing him to resign amounted to an illegal deduction from wages, and a sanction which was unwarranted, irregular and in fundamental breach of his contract of employment and statutory rights.  The Respondent had acted unreasonably and in breach of the Complainant’s contract of employment by firstly demanding a hair strand drugs test and secondly, by refusing to allow him to return to paid work until same was undertaken, constituting an unfair suspension.  A holding suspension should not be a punishment or a sanction.  Even if there had been any basis for suspending the Complainant which there was not, he would have been entitled to full pay prior to the outcome of any disciplinary process in accordance with his contract of employment.  In the circumstances, it was submitted that the Employer's failure to maintain the Employee's level of full pay and allowances during his suspension constituted a pre-judgement of the issues at stake and a punishment, and therefore a breach of the principles of natural justice and fair procedures.  This situation is further inflamed by the Respondent’s complete lack of transparent invocation of its own disciplinary process against the Complainant for alleged misconduct, being the implied allegation that the Complainant had presented for work under the influence of illegal drugs, or even for failing to comply with the alleged requirement to submit for hair strand sampling.  The decision to suspend him and then failing to carry out an investigation in a transparent manner was severely prejudicial to the Complainant, undermined his dignity at work and was procedurally unfair.  Furthermore, this allegation of serious misconduct against the Complainant was being presented as a caring response by the Respondent in a pseudo compassionate tone, using terminology such as “to facilitate an early return to work", whilst at the same time setting this up as an impossibility.  In the circumstances, owing to the unreasonable conduct and fundamental breach of contract leading to a breakdown in trust and confidence, the Complainant was entitled to treat his contract of employment repudiated and consider himself constructively dismissed. 

Accordingly, the Complainant sought compensation for his loss of earnings between 10th January 2024 when the Respondent ceased paying his wages until the date of his resignation on 12th April 2024 under Section 6 of the Payment of Wages Act 1991.  He further sought compensation for unfair constructive dismissal for his loss of income for the subsequent period of his unemployment, loss of future earnings and prospective loss of statutory redundancy under Section 7 of the Unfair Dismissals Act 1977 as particularised in his direct evidence above.  It was further submitted that he had discharged his duty to mitigate his losses in accordance with the threshold set out in EAT -v- Continental Administration Co. Ltd UD 858/199.

Post-hearing Submissions and Response to the Respondent’s Post-hearing Submissions

In response to the Respondent’s post-hearing submissions, on behalf of the Complainant, reliance was placed upon further case law in relation to claims of constructive dismissal where the burden of proof rests with the claimant.  It was submitted that the statutory definition provided by Section 1(b) of the Unfair Dismissals Act 1977 mirrors the classic formulation of the ‘contract’ and‘reasonableness’ tests required for a constructive dismissal to succeed.  This was set out by theCourt of Appeal of England and Wales in Western Excavating (ECC) Ltd -v- Sharp [1978] IRLR 27.  These tests areinterchangeable and the satisfaction of one or both tests will suffice.  The ‘contract test’ provides: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”  The reasonableness test requires an assessment of whether the employer has “conduct[ed] himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”  The Supreme Court, in the context of a complaint of constructive dismissal in Berber -v- Dunnes Stores [2009] IESC 10, noted that in determining whether there has been a breach of the implied term of mutual trust and confidence in an employment contract: “(1) The test is objective.  (2) The test requires that the conduct of both the employer and the employee be considered.  (3) The conduct of the parties as a whole and the cumulative effect must be looked at.  (4) The conduct of the employer complained of must be unreasonable and without propercause and its effect on the employee must be judged objectively, reasonably andsensibly in order to determine if it is such that the employee cannot be expected to putup with it.”  In Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the Labour Court set out the ‘contract’ and ‘reasonableness’ tests which may be used either individually or together to assess whether an employee has been constructively dismissed.  The ‘contract’ test provides: “If the employer is guilty of conduct which is a significant breach going to the root of thecontract of employment, or which shows that the employer no longer intends to be bound byone or more of the essential terms of the contract, then the employee is entitled to treat himselfas discharged from any other performance.”  The reasonableness test assesses the conduct of the employer and whether the employer conducts “…affairs so unreasonably that the employeecannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” 

The case law confirms that an employee must have firstly exhausted all alternative avenues before terminating the employment contract as per Conway -v- Ulster Bank Limited UD 474/1981.  However, there are situations whereby employees have been found to be justified in resigning with immediate effect e.g., in circumstances of a fundamental breach of contract, or where grievances have not been investigated in a proper or timely manner.  Applying the case law to the present case, it was submitted that the central issues for determination are whether (a) the Respondent was guilty of conduct which constituted a significant breach going to the root of the contract of employment, or showing that the Respondent no longer intended to be bound by one or more of the essential terms of the contract, and (b) it was objectively reasonable for the Complainant to have treated the employment relationship as having been terminated.  It was submitted that the prolonged and repeated failure to pay the Complainant’s wages alone constituted a significant breach going to the root of the contract of employment and illustrates that the Respondent no longer intended to be bound by one or more of the essential terms.  This is even more amplified in circumstances where the Complainant was suspended from work in the absence of the Respondent invoking any disciplinary process against the Complainant which might have clearly formulated any grounds for a suspension.  Therefore the unpaid suspension of the Complainant by the Respondent was unfounded, unfair, and amounts to a significant breach going to the root of the contract of employment.

In relation to the onus on an employee to exhaust all alternative remedies before revoking a contract of employment through resigning as a last resort, it was submitted that the Respondent was well aware that the Complainant was unhappy with his workplace situation.  He had made this clear in his repeated messages, his conversations during formal meetings, and in legal correspondence sent on his behalf.  Moreover, and despite his repeated and clear messaging to the Respondent regarding his disquiet with the situation, this elicited no response acknowledging his stated unhappiness with the position he was in and the procedural defects he had identified and/or raised issue with.  The Complainant was never invited or directed by the Respondent to raise same with any other person within or connected with the business.

Summary of Respondent’s Case:

Respondent’s Pre-hearing Submissions

As set out above, the Respondent declined to go into evidence under oath.  In written submissions, it was outlined that the Respondent was established in 2004 and provided medium to long-term residential care and assessment services for young people (aged 8 to 18 years), who are placed in care by TUSLA - Child and Family Agency.  More recently, the Respondent has been offering similar services to unaccompanied displaced children (from warzones, etc.) who are orphaned or separated from their parents.  From September 2016 until his absence in December 2023, the Complainant was responsible for the management of its Care Home providing services for up to six young people.  Mandatory young person to care worker ratios are prescribed by TUSLA and the Complainant was supported by a team of eight qualified social care staff which included two team leaders and one Deputy Manager, all working within a highly regulated environment.  Given the particularly sensitive nature of the role, all of the staff including the Complainant were subject to Garda vetting i.e. to confirm suitability for work with vulnerable children.   Due to the nature of its operations and necessity for safeguarding the welfare of vulnerable children, all staff are also subject to drug and medical testing i.e. to determine their ongoing fitness for work. 

Contractual Position regarding Medical and Drug Testing

In signing an updated employment contract in 2019, the Complainant agreed to be contractually boundby the terms of the contract as cited above and particular by paragraph 11 providing as follows:

“11.4  The Organisation retains the right at any time during employment to refer an employee to a suitable medical practitioner nominated solely and exclusively by the Organisation and to seek a full and medical report in order to make reasonable decisions in relation to the Employee’s capacity to fulfil their terms and conditions of employment.

11.5      If there is any indication that you may be under the influence of alcohol or drugs whilst at work, the Organisation reserves the right to request you to leave work immediately and without pay for that day.  You may also be required to be assessed by an independent medical practitioner nominated by the Company for this purpose.  Any employee found to be under the influence of alcohol or drugs whilst at work may be subject to the Organisation's disciplinary procedure.”

Furthermore, the Complainant’s original (2016) contract included the following clause: “The Company at any stage during your employment, with due cause, may require you to undergo a medical examination by a practitioner nominated by the Company.  The cost of any such examination or examinations will be met.”

In signing his contracts, the Complainant also agreed to be bound by the terms and conditions contained in the Respondent’s 2019 Employee Handbook including the Sick Leave and Fitness to Work policy which includes the following provisions: “The Organisation expects acceptable levels of attendance from Employees in fulfilling their statement of terms and conditions of employment.  To this end, Management retain the right at any time during employment to refer an Employee to a suitable medical practitioner nominated solely and exclusively by the Organisation and to seek a full medical report in order to make reasonable decisions in relation to the Employee’s capacity to fulfil their terms and conditions of employment.  Circumstances which are likely to give rise to such a report being sought are where absence is excessive or there are patterns of absence leading to a suspicion of abuse of sick leave or where it is felt that Employee’s health is having a negative impact on work performance.  The Organisation is committed to encouraging Employees to return to work following periods of absence.”  Similarly, the Complainant is contractually bound by the Drugs and Alcohol Policy within the Handbook which includes the following:

“Health Monitoring – Drug and Alcohol Testing

Given the potential safety risks arising out of Employees being intoxicated in the workplace, the Organisation will carry out the following testing as part of the Organisation’s Health Monitoring:

▪ During employment, employees may be subject to random health screening onsite in line with the Organisation's Health Monitoring Programme, this includes alcohol and drug screening.  The screening will be unannounced and carried out at random.

▪ With Cause Drug and Alcohol Testing will be carried out when an Employee is suspected of being under the influence of an intoxicant. 

Testing will be conducted by an occupational medical physician.  Testing will be carried out offsite.  All employees are expected to co-operate fully with such testing as a condition of continued employment with the Organisation and in accordance with the Organisation's Health Monitoring Programme.  Failure to cooperate with testing may be subject to disciplinary action, up to and including dismissal.”

Concerns for the Complainant’s Welfare & Medical Testing Requirement

It was the Respondent’s position that Ms A, Director of the Respondent had developed a very positive relationship with the Complainant over the course of more than seven years such that confidences were shared and various offers of support (including a deposit for a house purchase) were extended to him.  Having previously worked at an addiction centre, Ms A’s concerns for the Complainant’s health and welfare became pronounced during the latter part of 2023 given the various substance misuse tell-tale signs including (i) extreme and sudden weight loss, (ii) a prevalence of cold and flu-like symptoms and (iii) ongoing health issues/low immunity.  Concerns were further raised on 21st November 2023 when the Complainant failed to attend a scheduled premises viewing, did not answer his phone and was not at work two hours later.  When Ms A saw him on the street later that morning, she had difficulty recognising him.  She relayed her concerns to the Complainant by phone on Friday 24th November 2023 requesting that he reflect on whether he might need help or wish to speak with her the following Monday.  The Complainant did not report for work on the Monday and further intermittent absences occurred.  Significantly, he also missed the Managers’ Christmas Lunch on 6th December 2023.  In addition to the concerns for the Complainant’s welfare, Ms A was fearful that any failure to address clear warning signs would have the effect of enabling his behaviour.  On 9th December 2023, Ms A also raised these concerns in an email to the Respondent’s Representative herein, being its HR Advisor at the material time which was furnished.  (Note: The email also referenced obtaining anecdotal evidence of the Complainant’s alleged illicit drug use.)

Ms A met with the Complainant on 11th December 2023, re-emphasised her concerns and asked him to attend the Company Doctor for drug testing.  Later that morning, she advised him that an appointment had been made for the following morning.  The Complainant phoned Ms A to advise that he wished to seek advice before consenting and did not agree to attend for the appointment.  Ms A suggested an alternative appointment (at a hair strand sampling clinic referred to as ‘a/the Medical Lab’) on13th December 2023.  The Complainant replied: “go ahead”, again stating that he wanted to “take it under advisement” and subsequently texted to say “Ok il confirm my attendance in the morning”.  He attended the Medical Lab on 13th December 2023 but called Ms A from the Lab to say that he would not consent to providing a hair sample.  Instead, he would offer a urine sample but only if the Respondent committed to not mentioning the issue again.  Given her knowledge and experience in the area of drug treatment, Ms A advised that a urine sample would not provide a valid result due to the passage of time and a hair sample was required.

The Complainant was referred back to the Company Doctor on 14th December 2023 but would not consent to drug testing as confirmed in a letter from the Company Doctor dated 26th August 2024.  (Note: As there was no question that the Complainant had provided a blood sample and consented to providing blood and urine samples, this must be taken as a reference to hair strand testing.  The letter also stated that Ms A had informed him that a report for the Complainant was not required as testing had not been completed.)  Other referrals and appointments were made for 13th December 2023 and 20th December 2023 with the Company Doctor (for non-invasive hair strand testing).  The Complainant did not attend on either occasion.  Recognising the seriousness of the issue, Ms A wrote to the Complainant on 17th December 2023 as cited above outlining her extreme concerns in respect of his health; offering support and assistance including with rehabilitation and associated costs; indicating that the Respondent’s service agreement with TUSLA required that he needed to be fully fit to undertake normal duties; noting that he would not consent to hair strand testing (just a basic screening) preventing the Respondent from obtaining an independent medical assessment to facilitate his early return to work; urging him to take the steps necessary towards a full recovery; noting his high level of absence and that the payment of discretionary sick pay may have contributed to his condition and choices; and emphasising the requirement to respond appropriately and consent to the required test.  Ms A wrote to him again on 2nd January 2024 seeking a response and confirming the Respondent’s commitment towards supporting his return to full health and work but that it could not facilitate his return to work until such time as the necessary medical examinations had been completed.  The Complainant replied advising that he would be taking legal advice, planned to take some annual leave and would revert on 9th January 2024.  A meeting subsequently took place on 10th January 2024 with the Complainant, Ms A and Ms C present.  The minutes recorded the Complainant’s threats that he would “need to resign”; Ms A’s request that he refrain from making “any hasty decisions”; the Respondent’s consistent messages in respect of the fitness for work imperative; the necessity for an independent medical assessment and supports available.  This point was re-emphasised in the email from Ms A to the Complainant of 29th January 2024 stating: “On the question of financial support and the offer contained in my email of December 17th, I advised (on 10th January 2024) that this offer remains in place and is contingent upon your consent to the medical assessments”  Ms A sent a further similar email to the Complainant on 2nd February 2024 re-emphasising the requirement for a medical assessment.  On 7th February 2024, the Complainant wrote to Ms A making certain demands and on 13th February 2024, Ms A wrote to him again to address his queries and restate her requirements as already outlined above.

It was contended that despite Ms A’s concerns for the Complainant’s welfare and attempts to support his recovery, his Solicitors wrote to Ms A on 7th March 2024 making horrible and untrue allegations while also demanding compensation for alleged defamation.  Consistent with the attempts to support the Complainant, Ms A sent him a text message on 10th March 2024 as cited above expressing her concerns for him, offering him help and asking him to go for the hair stand test.  The Complainant’s Solicitors responded to Ms A the following day of 11th March 2024 demanding for a second time, that no direct contact be made with our client by you, your servants and/or agents and strongly advising that she contact a solicitor in relation to this matter.  Ms A responded to the Complainant’s Solicitors on 19th March 2024 restating her concern for the Complainant, highlighting the efforts made to encourage his return to work and requesting that they correspond with the Respondent’s Representative to facilitate his return.  In their response of 21st March 2024, the Complainant’s Solicitors advised categorically (twice and underlined) that the Complainant “will not” agree to the medical assessments which the Respondent regarded as contractually binding.  Rather than seeking to engage with the Respondent around a resolution to facilitate the Complainant’s return, it was contended that the Complainant’s Solicitors had sought to pursue a contentious approach by stating: “We would, again, strongly advise that you contact a solicitor in relation to this matter”.  The Respondent’s Representative wrote to the Complainant’s Solicitors on 25th March 2024 to confirm a willingness to engage in supporting his return to work.  It was contended that rather than engaging constructively or in good faith, they threatened “immediate legal recourse” and again advised that the Respondent should “seek legal advice immediately”.  The Respondent’s Representative replied on 2nd April 2024 noting a reluctance on the part of the Complainant’s Solicitors to “engage constructively around a return to work” and their inability to prevail on the Complainant in this regard.  The letter re-emphasised his contractual obligations along with the requirement for an independent professional medical opinion.  While certain other falsehoods and allegations were addressed, the Respondent’s Representative restated a wish to engage with the Complainant’s Solicitors to support the Complainant in his return to work. 

Rather than engaging with either the Respondent or the Respondent’s Representative, the Complainant’s Solicitors wrote to Ms A on 12th April 2024 to advise that: “our client finds himself with no other option but to consider himself constructively dismissed” and that “he will be making the appropriate application to the Workplace Relations Commission in this regard”.  The Respondent’s Representative wrote to the Complainant’s Solicitors on 17th April 2024 to advise that the Respondent’s various offers to provide the Complainant with assistance “still stand”, that it “remains committed to supporting his return” and indicating a willingness to work with his Solicitors in that regard.  In a subsequent email of 24th April 2024 to the Complainant’s Solicitors, the Respondent’s Representative stated that the Complainant “…may return to work as early as next week if he chooses to consent to the medical testing…” and noted that it was “a matter for the relevant medical professionals to determine the nature of tests required” and (ii) the Complainant “had not acquiesced to the testing required”.  The offer that: “…he may return to work at the earliest opportunity if he chooses to consent to medical testing” was restated in an email of 29th April 2024 from the Respondent’s Representative.  The Respondent’s Representative also invited the Complainant to agree to testing ‘under protest’ but once again, neither he nor his Solicitors chose to explore related options.  To encourage the Complainant to reconsider his position and choices, Ms A sent him a very personal and pleading email on 1st May 2024 as cited above in which she expressed her heartfelt concern, care for him and offers of assistance.  Furthermore, she cited a related case in which another employee was suffering with addiction had been supported by the Respondent, emphasising that similar supports were available to him and indicating that he could call her at any time.  It was noted that the other employee has since completed a rehabilitation programme and returned to work with the Respondent.  It was submitted that although various options were open to the Complainant (and communicated both to him and to his Solicitors), he chose neither to engage with nor invoke the organisation’s grievance procedures.  It was also contended that the Complainant’s Solicitors had failed to engage in mediation offered by the WRC following the referral of these complaints.  In response to a query from this Adjudication Officer, it was confirmed that the Respondent had not offered mediation before the Complainant’s resignation.  It was further contended that in fact the Complainant had remained an employee of the Respondent because he remained on ‘Payroll’ and had continued to receive a monthly ‘wellbeing allowance’ and VHI payment.

Constructive Dismissal Complaint and Legal Imperatives

It was submitted that as per precedent and established practice, employees are required to invoke and exhaust grievance procedures before they can claim constructive dismissal.  The late Dr Mary Redmond captured the fundamental requirements succinctly as follows: “There is something of a mirror image between constructive dismissal and ordinary dismissal.  Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance.  The duty is imperative in employee resignations.  Where grievance procedures exist, they should be followed” (Redmond, M. Dismissal Law in Ireland, P. 340)  In Conway -v- Ulster Bank Ltd UD474/1981, the EAT considered that the claimant did not act reasonably in resigning and without first having “substantially utilised the grievance procedure to attempt to remedy her complaints”.  The WRC reaffirmed this position in ADJ-00001293 stating: “In this regard the law is settled concerning the standard of reasonableness required on the part of the employee.  Therefore other than in exceptional circumstances and in almost all cases the employee in the first instance is required to use any/all agreed dispute resolution mechanisms available where it would not be unreasonable to do so.  The so called “mirror image concept” has been adopted to envisage the particular requirement.  The fact that he [the employee] did not do so renders his position fatally flawed.”

Similarly, when considering the question of constructive dismissal and an employer’s entitlement to expect that contractual terms will be met, in ADJ-00040821, the WRC stated: “(1) In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, the employer has breached his contract and as a result, the employee is entitled to resign.  (2) I am cognisant of the decision of the Employment Appeals Tribunal in Conway -v- Ulster Bank UD474/1981 which stated: “The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints”.  In the circumstances, I am not satisfied that the Complainant acted reasonably in failing to bring his complaints to the attention of his employer prior to resigning”.  In considering whether the Respondent’s attempts to encourage the Complainant to meet his contractual obligations were unreasonable, the Supreme Court’s guidance in Berber -v- Dunnes Stores [2009] IESC 10 is important where Finnegan J. stated: “The conduct of the employer complained of must be unreasonable and without proper cause, and its effects 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.”  The high burden of proof rests on employees/claimants as per the EAT case of Cosgrave -v- Kavanagh Meat Products Ltd UD 6/1988.  At no stage was the Complainant, or his Solicitors, justified in terminating his contract on the grounds of constructive dismissal.  In M Reid -v- Oracle EMEA Ltd UD1350/2014, it was held 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”.  Obviously, the Respondent was not only entitled to expect the Complainant to meet his contractual obligations, but it was also required to do so in discharging its duty of care to vulnerable children as young as eight years of age.  The Complainant’s obligations under Section 13 the Safety, Health and Welfare at Work Act 2005 requires at all times, that he is not in “such a state as to endanger (his) own safety, health or welfare at work, or that of any other person”.  This underscores the Complainant’s contractual obligations and illustrates that the Respondent did not act unreasonably in requesting him to meet his core requirements.  This is necessary in all workplaces, and particularly those which are licenced and regulated to provide care for extremely vulnerable young children.  By failing to engage in any discussion whatsoever, and to explore possible alternatives to medical testing, this claim of constructive dismissal is likewise ‘fatally flawed’.  In chastising Ms A for her attempts to encourage the Complainant to return to work and refusing to explore possible solutions with the Respondent’s Representative, his Solicitors created unnecessary and insurmountable obstacles to a resolution of this matter.  Had the Complainant and/or his Solicitors engaged constructively, he would either (i) have returned to work in January 2024 or (ii) benefitted from rehabilitation (at the Respondent’s expense) and returned to work shortly thereafter.

Payment of Wages Complaint

Although the Complainant and his Solicitors continued to insist that he “will not” undergo medical testing (confirmed as referring to a hair strand test) and both have failed to engage (either with the Respondent, its Representative or the WRC) around a return to work, the Complainant nevertheless claims that he is due three months’ pay.  Specifically, he claims to be owed salary payments for the period from 10th January 2024 until the date on which he claimed constructive dismissal on 12th April 2024.  There is no basis for any such claim where an employee refuses to meet their contractual obligations and would not engage around a return to work.  The Complainant’s sick pay entitlement is limited to that provided for under statute and his contract states: “The Organisation does not operate a sick pay scheme.”  Notwithstanding same, discretionary sick pay was extended to the Complainant before the Respondent considered that such payments were having the effect of enabling his behaviour and choices.  Indeed, absence and attendance details compiled in preparation for this case show that the Complainant missed 69 days (18 due to sickness and 51 unexplained absences) in the period of 1st January to 11th December 2023.  This represents an absence rate of 30 per cent for the period and the Complainant was paid in full.  In relation to his complaint under the Payment of Wages Act 1991, the High Court, in Balans -v- Tesco Ireland Ltd [2020] IEHC 55 and Dunnes Stores (Cornelscourt) Ltd -v- Lacey [2007] 1 IR 478 confirmed that the first consideration is what (if anything) was properly payable.  Similarly, in UCC -v- Finbarr Waldron PWD 212, the Labour Court confirmed: “The Act does not make provision for the determination of what wages are properly payable on an occasion on the basis of what the Court might think reasonable.  Rather, the Act requires the Court, having investigated the matter, to make a determination as regards what wages were properly payable on a given date by reference to objective criteria.”  Accordingly, in the instant case, as the Complainant would not consent to medical testing to confirm his fitness for work, he was not entitled to any sickness benefit in excess of his statutory entitlement.  Furthermore, he did not provide any independent medical opinion to indicate his fitness for work.  Accordingly, no monies are properly payable to the Complainant where he was not in a position to attend work and insisted that he would not meet his contractual obligations.

Post-hearing Submissions of the Respondent

In post-hearing submissions on behalf of the Respondent, it was contended that as the Respondent had acted within the terms of the Complainant’s signed contract of employment which had primacy within the realm of employment law, there was no lawful basis for either complaint.  Particular emphasis was placed upon the clause providing:  “The Organisation retains the right at any time during employment to refer an Employee to a suitable medical practitioner nominated solely and exclusively by the Organisation…”  As evidenced in a text message exchange of 12th December 2023 between the Complainant and Ms A, the Company Doctor had referred Ms A to the Medical Lab for hair strand testing.  It was contended that this was the Company Doctor making the referral based upon Ms A’s message to the Complainant as follows: “… there’s a place in town in Dublin 2 where you could have that app tomorrow Dr. sam referred me to, 11am?”  In this respect, it was submitted that notwithstanding same, under the terms of the employment contract, the Respondent was not required to obtain a medical opinion before referring the Complainant to the Medical Lab.  It was further contended that despite Ms A’s numerous requests and pleas in the most heartfelt terms and the comforting reassurances provided including her text message of 10th March 2024 cited above, both the Complainant and his Solicitors had insisted that he would not meet his legally binding contractual obligations.  He had shown further disregard for his contractually binding legal obligations by his non-acquiescence to non-invasive drug testing.  In doing so, he had sought to frustrate the Respondent in exercising its rightto “to seek a full and medical report in order to make reasonable decisions in relation to the Employee’s capacity to fulfil their terms and conditions of employment” provided for by the contract.  It was contended that the provision of a hair sample cannot be said to be painful, invasive or demeaning in any way.  From both a practical and legal perspective, it was reasonable for either the employer (or ‘a suitable medical practitioner nominated solely and exclusively by the Organisation’) to request a hair sample consistent with the terms of the contract.  Also consistent with the right to ‘make reasonable decisions in relation to the Employee’s capacity to fulfil their terms and conditions of employment’, the Respondent was required to insist on a non-invasive hair sample.  This became necessary as the Complainant had gone to great lengths to ensure that the testing windows of 24 and 48 hours for (relatively invasive) urine and blood testing, were circumvented.  Given the Respondent’s responsibility for the care of vulnerable young children, an obvious imperative arose for it to exercise both its rights and duty of care.  Accordingly, the requirement for the Complainant to provide a hair sample: (i) was not unreasonable and (ii) the Respondent had acted entirely within its rights when it requested same.

It was further submitted that Respondent had also acted within its rights in requesting the Complainant to remain away from the workplace until such time that: (i) he acquiesced to bona fide, valid drug testing and (ii) it was satisfied that he was not under the influence of drugs.  It was contended that his legally binding contract provides that wages are not properly payable under such circumstances as follows: “If there is any indication that you may be under the influence of alcohol or drugs whilst at work, the Organisation reserves the right to request you to leave work immediately and without pay for that day.  You may also be required to be assessed by an independent medical practitioner nominated by the company for this purpose.”  The latter sentence also copper-fastens the clause providing for the Respondent “to refer an Employee to a suitable medical practitioner nominated solely and exclusively by the Organisation.”  Accordingly, there can be absolutely no confusion in respect of the Complainant’s obligations.  Consistent with the case law (including WRC, Labour Court and High Court judgments), the Complainant’s wages were not properly payable in circumstances where he chose to disregard his fundamental and legally binding contractual obligations.  As held by the Labour Court in UCC -v- Finbarr Waldron PWD 212: “The Act does not make provision for the determination of what wages are properly payable on an occasion on the basis of what the Court might think reasonable.  Rather, the Act requires the Court, having investigated the matter, to make a determination as regards what wages were properly payable on a given date by reference to objective criteria.”  Accordingly, there is no basis, in law, for any such pay claim where an employee refuses to meet their contractual obligations and refuses to engage around a return to work.

The Complainant’s credibility was also called into question.  It was submitted that there are serious questions about the veracity of his written and oral evidence, including his statement under oath that he was not taking illicit drugs at the material time.  In particular, he had contended that he had been keen to return to work and that he and his Solicitors had engaged with the Respondent to find a resolution but to no avail and an impasse was reached and maintained by the Respondent.  Under cross-examination in sworn testimony, he had cited his email of 12th January 2024 as evidence of engaging with the Respondent but nowhere does this email support his contention.  His other correspondence references a need to consult with his legal advisors and indicates that he would only meet after receiving legal advice.  This is in contrast with Ms A’s messages and correspondence showing concern and offering support.  Additionally, the Respondent’s Representative wrote to the Complainant’s Solicitors on five separate occasions to: (i) confirm the availability of supports for the Complainant’s return to work and (ii) suggesting that the Complainant could agree to testing ‘under protest’ as a resolution.  Accordingly, it was apparent from his communications with Ms A that the Complainant had not tried to engage with the Respondent to come to a resolution in a meaningful manner.  His references to the longitudinal nature of hair strand testing and fact that it can test much further back than other forms of testing revealed his real motivation for declining.  Forewarned by the sources of his advice, he had refused to provide a non-invasive hair sample as it would have provided evidence of what he was seeking to hide from the Respondent and the WRC.  It was submitted that on the balance of probabilities, he would have been more than willing to provide a non-invasive hair sample if he (i) had been keen to return to work and (ii) had not been taking illicit drugs.

The Respondent’s position regarding its contention that the Complainant had not formally invoked the Respondent’s grievance procedures were reiterated and his reasons for not doing so did not stand up.  Specifically, it was contended that his concern that Ms A would be the sole decision-maker did not stand up as he should have raised a grievance with Ms C to whom he reported in the first instance and that he could have raised a grievance with Mr B (who was involved in the running of the Respondent but his directorship may not have shown up at the time owing to a temporary change in administration).  Additionally, Ms A had shown concern and offered assistance.  In direct evidence he had acknowledged a prior good working relationship with Ms A, her operation of an open-door policy and that she had assisted him in the past.  Accordingly, it was submitted that he had prejudged the outcome of the grievance procedure.  The Complainant had also confirmed that he understood what it meant to agree to testing ‘under protest’ and acknowledged that he did not choose to avail of this offer despite having the benefit of professional legal advice.  Instead, he chose to resign abruptly and indicated on his WRC claim form that he was not willing to engage in mediation and that he was seeking compensation rather than reengagement or reinstatement.

It was further contended that Ms A’s concerns for the Complainant’s health had been mischaracterised as performance criticisms and the work-related issues had properly been raised in the context of concern for his health as evidenced by her correspondence.  Importantly, concerns in respect of attendance and the apparent absence of weekly reports only came to light more than two weeks after his refusal to submit for drug testing when an interim manager had to be assigned to oversee the running of his Care Home.  If the Complainant and/or his Solicitors had any genuine misgivings, these should have been raised under the grievance procedure which he was obliged to invoke and exhaust before claiming constructive dismissal.

Finally, it was contended that the Complainant had made a retrospective redundancy claim (within its claim for compensation for Unfair Dismissal) which was not properly before the WRC.  It was confirmed that a redundancy situation did not arise within the organisation and accordingly, this should be withdrawn.

CA-00063813-002 – Complaint of Constructive Dismissal

Findings and Conclusions:

For a successful complaint of constructive dismissal under Section 8 of the Unfair Dismissals Act 1977, the Complainant must satisfy the definition in Section 1 which provides: “dismissal, in relation to an employee means- (b) 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 statutory definition is mirrored in the classic formulation of the ‘contract’ and ‘reasonableness’ tests required for a constructive dismissal set out by the Court of Appeal of England and Wales in Western Excavating (ECC) Ltd -v- Sharp [1978] IRLR 27.  The tests are interchangeable and satisfaction of one or both tests will suffice.  The ‘contract test’ provides: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”  The reasonableness test requires an assessment of whether the employer “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”  In the context of a complaint of constructive dismissal Berber -v- Dunnes Stores [2009] IESC 10, the Supreme Court noted that in determining whether there has been a breach of the implied term of mutual trust and confidence in an employment contract: “1. The test is objective.  2. The test requires that the conduct of both the employer and the employee be considered.  3. The conduct of the parties as a whole and the cumulative 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.” 

Unlike the position in relation to complaints of unfair dismissal provided for by Section 6 of the Unfair Dismissals Act 1977, the definition of constructive dismissal provided by Section 1 firmly places the burden of proof on the employee to show that termination of the employment contract was justified.  The case law also overwhelmingly supports the position that an employee must have firstly exhausted all alternative avenues before terminating the contract e.g. Conway -v- Ulster Bank Limited UD 474/1981.  However, there are situations whereby employees have been found to be justified in resigning with immediate effect e.g. where there has been a fundamental breach of contract, the employee has not been provided with any grievance procedures and/or grievances have not been investigated in a proper or timely manner.

The Complainant contends that the Respondent acted so unreasonably and in breach of his employment contract that he was entitled to consider the contract repudiated and resign whilst the Respondent contends the contrary position.  I must apply the law to the factual matrix herein to determine on the balance of probabilities whether the Respondent has behaved in such a way that amounts to a justified repudiation of the employment contract.  It is noted that although the Respondent chose not to go into evidence, most of the evidence adduced on behalf of the Complainant has not been substantively disputed.  My overall impression of the evidence was that Ms A had convinced herself that the Complainant who it seems had been undergoing various personal and health difficulties was engaging in illicit drug use.  Whether well-intentioned or not, she had also adopted an unyielding position that nothing short of a hair strand test would suffice in convincing her that the Complainant was clean and fit to work in his role as a Manager of a Residential Centre for vulnerable children subject to TUSLA oversight.  Her rationale appeared to be based upon a belief that a hair strand test would be more accurate than blood or urine tests which have a shorter window to detect illicit drugs.  It was maintained on behalf of the Respondent that Ms A was acting within the terms of the Complainant’s contract of employment in insisting that he undergo a hair strand drugs test before being permitted to work, and further, that the Respondent was not contractually obliged to pay his wages until he acquiesced.  This decision is not concerned with whether Ms A’s view that the Complainant had been engaging in illicit drug use was well-founded and/or borne out by the evidence but rather how the Respondent dealt with such concerns and the processes and procedures followed.

The Respondent did not seek to put any of the written communications between the Parties as cited above in issue.  Nor was it denied that the Complainant had never been furnished with the results from his examination and blood test with the Company Doctor.  It was also common-case that the Complainant had not been subject to any investigation or disciplinary process.  On the balance of probabilities, I make the following further findings of fact from the evidence adduced as being material to my decision:

• Ms A made repeated unsubstantiated allegations that the Complainant was engaging in drug misuse.  I make this finding based upon the undisputed evidence that Ms A had rang the Complainant making such assertions on 23rd November 2023 and in her letter of 17th December 2023 to the Complainant, had offered him payment towards rehabilitation treatment, direct payments to his landlord and stated that the payment of discretionary sick pay to date “…may havecontributed to your condition and your choices.”  Ms A had repeated this allegation in the presence of his Line Manager, Ms C during the meeting of 10th January 2024.  Ms A also repeated this assertion in her direct communication of 1st May 2024 following his resignation.  These assertions were made without any investigation in accordance with the Respondent’s Disciplinary process.  I do not accept the Respondent’s contention that it reasonable for Ms A to conclude that owing to the Complainant’s appearance and level of absenteeism that he must be involved in drugs misuse.

• Ms A raised criticisms with the Complainant’s work and sought to raise a disciplinary issue regarding a purportedly inappropriate photograph within correspondence about his purported ill-health without these ever being brought to his attention by his line manager or any investigation.  I make this finding based upon the undisputed correspondence containing same as set out above.

• The requirement for the Complainant to undergo a hair strand drugs test was being driven by Ms A, not least because all her correspondence, emails and text messages refer to this as being her requirement.  This is also borne out by the letter from the Company Doctor which the Respondent sought to rely upon directing him not to issue a medical report until all tests were completed. 

Having reviewed the aforesaid evidence along with the terms of the Complainant’s employment contract incorporating the 2019 Handbook, I find that Ms A on behalf of the Respondent acted in breach of the Complainant’s contract, unreasonably and without proper causein numerous respects including:

• Acting on behalf of the Respondent, making allegations to the Complainant which she repeated in the presence of Ms C to the effect that he was engaging in drug misuse without any concrete evidence to support such allegations and without initiating any investigation into same.  Such unsubstantiated allegations would be damaging to anyone’s reputation and professional standing and particularly to a professional working with vulnerable children subject to vetting requirements.

• Raising criticisms with the Complainant’s work and seeking to raise a disciplinary issue regarding a purportedly inappropriate photograph within correspondence about his purported ill-health without these ever being brought to his attention by his Line Manager or any investigation.

• Raising the issue of redundancy within the context of correspondence about purported ill-health.

• Unilaterally requiring the Complainant to undergo a hair strand drugs test whilst repeatedly stating that the requirement for a hair strand test was a matter for the requisite medical practitioners / professionals to determine without obtaining and/or furnishing any medical opinion to this effect.  In this respect, none of the terms of the Complainant’s contract of employment or Handbook as cited above extend to permitting a Director to decide upon the nature of a drugs test which an employee should undergo.  In this respect, I have applied the tenets of interpretation law and as the wording of the clauses within the Complainant’s employment contract and his 2019 Handbook relied upon is clear and unambiguous, I have given them their natural, ordinary and everyday meaning.  I cannot read into these clauses (the wording of which is set out above), provision for a Director to require an employee to undergo a hair strand test for the purposes of drugs testing.  I do not accept the Respondent’s position that the contractual terms can be construed in such a manner as to permit the Respondent to unilaterally refer the Complainant for a hair strand test.

• Directing the return of his work equipment whilst sending him a work query on 27th January 2024.

• Attempting to introduce and rely upon an amendment to the drugs policy within the Company Handbook to support her position that the hair strand test was a contractual requirement.

• Not permitting the Complainant to work until he acquiesced with the hair strand test and thereby placing him on undefined leave or suspension from work without any contractual basis for same.

• Not paying the Complainant’s wages during his period of such leave from 10th January 2024 until his resignation on 12th April 2024 unless and until he acquiesced with the hair strand drugs test. 

• Insisting that it was open to the Complainant to apply for Illness Benefit when this clearly was not lawfully open to him in circumstances where neither his own GP or the Company Doctor had certified him as being unfit for work following examinations of him by both in December 2023.

• Not providing the Complainant with the results of his examination or the blood test with the Company Doctor notwithstanding his numerous requests for same, also made via his Solicitors.

• The manner in which Ms A engaged with the Complainant including contacting him whilst on leave over the Christmas period; continually requesting that he undergo a hair strand test before he had the opportunity to avail of legal advice, declining to address his queries and concerns or deal with same under the grievance process and contacting him directly when his Solicitors had come on record and she had been requested that she not to do so and/or criticising his Solicitor’s advices.

The breaches of contract and unreasonable behaviour set out above are inextricably linked, particularly as the latter undermines the implied contractual term of trust and confidence between the Parties.  I accept the submission that there were no contractual terms permitting the Respondent to act in the manner it did.  For the avoidance of any doubt, I consider the Respondent’s requirement for the Complainant to undertake a hair strand drug test in the particular circumstances, the refusal to permit him to undertake his role and the non-payment of his wages until be complied with same to constitute fundamental breaches of contract.  I am further satisfied that when judged objectively, reasonably and sensibly, the Respondent’s conduct was such that the Complainant could not reasonably be expected to put up with it and was justified in resigning.  Accordingly, I find that the Complainant was entitled to consider his contract of employment to be repudiated and the circumstances in which he was forced to resign constitute constructive dismissal.

Issue regarding utilisation of Grievance Procedures & whether Constructive Engagement

It is common-case that save for exceptional cases, there is a requirement for an employee to have exhausted all internal grievance processes before considering their contract repudiated and claiming constructive dismissal as established through case law.  The Respondent contends that the Complainant’s case is fatally flawed by virtue of the fact that he did not raise a formal grievance with Ms C in the first instance and/or appeal to Mr B.  On behalf of the Complainant, it is contended that such a course would have been futile in circumstances where the complaint lay against the main Director, Ms A who actively controlled the Respondent at the material time.  Having considered and applied all of the relevant law to the facts in the instant case, I wholly reject the Respondent’s position for the following reasons:

• As eloquently put by the late Dr Mary Redmond cited above on behalf of the Respondent, the rationale for the requirement to exhaust all internal grievance processes before resigning and claiming constructive dismissal is so that an employer has notice of the issues causing disquiet such that it is afforded a reasonable opportunity to remedy same. I am of the view that given the copious exchange of correspondence between the Parties and the Complainant’s Solicitors and the Respondent’s Representative setting out the issues subject to these complaints in detail, the Respondent could not be under any illusion as to same.  Indeed a prudent employer would have treated the Complainant’s initial correspondence as a grievance and applied the Respondent’s process accordingly, including provision for a representative to attend any meetings on his behalf.

• It is not in dispute that the Complainant could not have raised a grievance to Ms A in circumstances where she was the subject of same and the Respondent contends that a formal grievance should have been made to Ms C in the first instance. Ms C was in fact well aware of the issues having been copied in on correspondence by Ms A and attended the meeting of 10th January 2024 (which notably was conducted without inviting the Complainant to have a representative attend).  All of the evidence suggests that Ms C acquiesced in Ms A’s unyielding position that he not be permitted to return to work unless he underwent a hair strand test.  I also accept the point that as Ms C reported to Ms A, she would not have been an appropriate recipient.  Accordingly, any formal complaint directly to Ms C would have been futile.  Likewise, as a co-Director, any complaint/appeal to Mr B would have been futile particularly where all of the evidence including his attendance at the hearing to stand over the position adopted by Ms A suggests that he took a similar stance.

• The Respondent’s Grievance Procedure did not make specific provision for the procedures to be followed when a complaint arose against one of the Directors as occurred in this case.

• I do not accept that Respondent’s position that it sought to engage constructively with the Complainant in circumstances where it maintained its unyielding position throughout. The Complainant was well within his rights to instruct Solicitors to enforce his rights in circumstances where the Respondent had adopted an unyielding position.  At no stage in the exchanges of inter partes correspondence was mediation or any compromise suggested such as obtaining an independent medical opinion as to whether the Complainant should undergo a hair strand test. 

• I do not accept that Ms A’s purported offers of assistance to the Complainant were genuine offers of assistance in circumstances where she concurrently placed him on unpaid leave leaving him without income when he refused to accede to her demand that he undergo a hair strand drugs test.

• It is wholly improper to suggest that the Complainant should have undertaken the hair follicle test ‘under protest’ given that he was under no contractual obligation to provide same or availed of mediation following the referral of these complaints to the WRC in the particular circumstances.

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to a complaint of unfair dismissal in accordance with the relevant redress provisions.  For the aforesaid reasons, I find that the Complainant was unfairly constructively dismissed by the Respondent through no fault of his own.  Once a complaint has been declared well-founded, Section 7(1) sets out the various forms of available redress including reinstatement, re-engagement and financial compensation as the Adjudication Officer “as the case may be, considers appropriate having regard to all the circumstances.”  Section 7(1)(c) provides for compensation of up to 104 weeks remuneration in respect of the employment from which an employee was unfairly dismissed for financial loss attributable to the dismissal and up to 4 weeks remuneration if no financial loss was incurred.  Section 7(2) sets out the various factors to be considered in determining the amount of compensation payable.  Section 7(3) further provides that: ““financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;”

There is no issue in the instant case that the Complainant mitigated his losses by immediately setting about to seek alternative employment which was secured in early course.  He was unemployed for a thirteen-week period equating to a loss of earnings of €16,328.  I do not propose including an award for the prospective loss of statutory redundancy as there was no concrete evidence of restructuring of the Respondent that would have made the Complainant’s role redundant.  Noting that he was unable to find employment at the same salary and opted for employment with start-up two companies, I am awarding a further sum of €4,500 equating to a shortfall in earnings for one year.  I anticipate that given his expertise, the Complainant’s salary will rise to a similar level in early course.   I therefore award the Complainant €20,828 (less any lawful deductions), in compensation as being appropriate having regard to all the circumstances.  I direct that this sum is paid by the Respondent to the Complainant within 42 days hereof. 

CA-00063813-001 – Complaint of Non-payment of Wages

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant statutory provisions.  Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as “…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:”  There is no issue in the instant case that the sum sought constitutes ‘wages’ under the Act.

In relation to deductions from wages, Section 5(1) of the Payment of Wages Act 1991 provides: “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.”  It is well-settled law that a reduction in wages constitutes a deduction from wages under Section 5 of the Act.  The remainder of Section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages not applicable to the instant case.  Section 6 of the Act provides for the referral of complaints to the WRC and the available redress.

As stipulated in Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornelscourt) Limited -v- Lacey [2007] 1 1R 478, a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under Section 5 of the Payment of Wages Act 1991.  In the instant case, I am satisfied that the Complainant was contractually entitled to be paid €1,256 weekly in accordance with his contract of employment. 

The next question to be considered is whether the Respondent was lawfully entitled to withhold payment of the Complainant’s wages under Section 5 of the Payment of Wages Act 1991.  Based upon the aforesaid reasoning, I am satisfied that there was no contractual basis for such action.  Accordingly, I find on the balance of probabilities that the Respondent acted in breach of Section 5 of the Payment of Wages Act 1991 and unlawfully withheld the Complainant’s wages between 10th January 2024 and 12th April 2024.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions.  I find this complaint to be well-founded for the reasons set out aforesaid.  Once a complaint has been declared well-founded, Section 6(1) of the Payment of Wages Act 1991 provides that an Adjudication Officer may direct an employer to pay an employee compensation of such amount (if any) as considered reasonable in the circumstances not exceeding: “(a) the net amount of the wages (after the making of any lawful deduction therefrom) that- (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, where paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”  I consider it reasonable in all the circumstances including the financial hardship suffered and the fact that the Complainant had to engage Solicitors and pursue a complaint to the WRC, to direct that the Respondent pays the Complainant compensation in the sum of €19,172 (comprising of €16,328 in unpaid wages subject to any lawful deductions and €2,844 in compensation) within 42 days hereof.

For the avoidance of doubt, the total award to the Complainant in respect of both complaints is €40,000.

Dated:   29th September 2026

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Constructive Dismissal pursuant to the Unfair Dismissals Acts 1977-2015 – Non-payment of Wages pursuant to the Payment of Wages Act 1991 – interpretation of employment contract terms