Complainant

Respondent

Parties

Ciara  Walsh

Maap Childcare Ltd, t/a Tots Creche And Daycare

Representatives

Morgan Conaty BL, instructed by Seán Lawler, Robinson Solicitors

None

Act

Complaint Reference No.

Date of Receipt

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

CA-00071052-001

23/04/2025

The Complainant contends she was constructively unfairly dismissed on 18 April 2025.  The Respondent refutes the claim.  

*The following is a summary of the Complainant’s oral testimony.  Evidence given in relation to the Complainant’s medical condition has been redacted, including details of the precise nature of remarks alleged to have been made by Ms Moniszko to the Complainant.

The Complainant commenced employment with the Respondent on 27 August 2020 in the position of pre-school leader.  She was promoted to curriculum co-ordinator in 2023.  She was promoted twice in 2024 – first to assistant manager and then to service manager.  The foregoing required her to work at different locations including Newbridge, Naas and Kildare town.  She reported to Ms Moniszko.

The Complainant described the treatment she was subjected to by Ms Moniszko.  The first incident occurred in 2023 when Ms Moniszko disclosed the Complainant’s serious medical condition to other staff without her consent and placed pressure on her to return to work early following surgery for that medical condition.  The second issue arose mid 2024 when Ms Moniszko began subjecting her to offensive remarks regarding her physical appearance (these remarks were outlined in evidence).  The third issue centred on Ms Moniszko’s failure to ensure the Complainant received the necessary training and support in the two promotional positions she undertook in 2024.  The Complainant told the hearing she felt overwhelmed in the promotional posts due to inadequate training on the system for keeping records, understaffing and lack of support from Ms Moniszko in particular.  Ms Moniszko made comments such as “I will show you once and once only”.  She was frequently unable to take breaks and was advised to amend electronic records on a weekly basis to ensure the business looked compliant.

The Complainant decided to speak with Mr Cacsiani, Recruitment and HR Manager, following his appointment in October 2024.  It was agreed the Complainant would first speak to Ms Murray (co-owner) regarding her concerns as she had a great relationship with Ms Murray. 

In November 2024, the Complainant met with Ms Murray.  She told Ms Murray of the difficulties she was encountering in the role and of the issues she was having with Ms Moniszko.  In relation to the difficulties she was experiencing in her promotional post, she was told to stick with it, help was coming.  Ms Murray then proceeded to call Ms Moniszko into the room.  Ms Moniszko denied everything and began crying.  The Complainant outlined how Ms Murray then “spun the complaint around” to lay the blame with two other persons (“D” and “B”).  None of the concerns the Complainant had raised in relation to Ms Moniszko were dealt with at that meeting, but  Ms Murray said she would call a meeting within days with all staff “to thrash it out”.  However, at that meeting Ms Murray asked staff to make complaints about “D” and “B” as she wanted to shift the blame away from Ms Moniszko as Ms Murray and Ms Moniszko were friends.  Ms Murray again did not deal with the Complainant’s actual complaint against Ms Moniszko.  Ms Murray then announced that the Complainant was going to become a manager at a newly opened creche.  The Complainant outlined that she had no idea she was going to be the manager at that creche until 5 minutes prior to that meeting.  She expressed her concerns to Ms Murray about her readiness for same and was told by Ms Murray that she would be well able for it.   

The Complainant outlined the day-to-day difficulties she continued to face in her new role without support from Ms Moniszko, and the impact same was having on her physical and mental health.  She was vomiting before going to work and had lost 3 stone.  In December 2024 she told Mr Cacsiani and Ms Murray over the phone of the difficulties she continued to experience and the impact of same on her.  Ms Murray told her she did not want to get involved as her and Ms Moniszko were friends outside of work.  Mr Cacsiani told the Complainant to write everything down and send her notes to him so he could investigate her complaint.  The Complainant sent her notes to Mr Cacsiani on 15 January 2025.  Mr Cacsiani agreed to meet the Complainant in January 2025. The meeting ultimately did not take place as Ms Murray arrived at the premises at the same time.  The Complainant told Ms Murray she wanted to speak to Mr Cacsiani  as she was “sick going to her as she was doing nothing”.  She said she was going to her union.  Ms Murray responded that no union would be coming into the place.

The Complainant had an online meeting with Mr Cacsiani on 6 February 2025.  She outlined the difficulties she was experiencing and said she was “blue in the face” telling management she needed support, and she outlined to him the toxic work environment.  She understood that following this meeting her complaint was being treated as a formal complaint.  Mr Cacsiani sent the Complainant details of the employee assistance programme and minutes of their meeting of 6 February 2025.  Those minutes were titled “Formal Complaint”.  The Complainant asked for time to read and correct the minutes.  Mr Cacsiani followed up to see when she was going to respond regarding the minutes.  She returned the corrected minutes to Mr Cacsiani on 10 March 2025.  Correspondence between the Complainant and Mr Cacsiani after this date were opened to the hearing.  The Complainant outlined that it was apparent that Mr Cacsiani had no intention of dealing with her complaint as a formal complaint and he repeatedly asked her if she still intended to make a formal complaint despite her having already done so.  Eventually, Mr Cacsiani told the Complainant that he would be siding with Ms Ackerlind, co-owner/director, due to his friendship with Ms Ackerlind.

In the interim, on 3 March 2026, the Complainant was told that Ms Ackerlind, wanted to meet her.  The Complainant thought the purpose of the meeting was to deal with her complaint as outlined to Mr Cacsiani.  On 4 March 2025, the Complainant met with Ms Ackerlind.  Ms Ackerlind told her that the Complainant and Ms Moniszko were “two grown adults and the bitching needed to stop”.  She told the Complainant that what the Complainant needed was more medication and counselling.  She kept referring to “personal issues” the Complainant was allegedly dealing with, but the Complainant had no idea what she was referring to.  Ms Ackerlind offered to pay for private counselling for the Complainant.  This was accepted by the Complainant.  She also demoted the Complainant to her previous management position and told her to take the rest of the week off.  The Complainant went to her doctor the following day.  She was certified as unfit for work. 

The Complainant did not return to her workplace after 5 March 2025.  She resigned on 18 April 2025.  The Complainant outlined that during her sick leave her personal belongings were searched and medication not belonging to her was planted in her personal belongings.  Despite repeatedly requesting a formal investigation into her complaint, no investigation was carried out.  She felt that due to Ms Murray’s and Ms Ackerlind’s personal friendship with Ms Moniszko, nothing was going to be done about her complaint.  The Complainant described to the hearing the impact that the treatment she experienced had on her physical and mental wellbeing, and that she had no option but to resign due to management’s failure to deal with her concerns.

At the time of her resignation, she was earning €18.25 per hour and worked an average of 38.75 hours per week (gross €707.19/net €615.63).  The Complainant was out of work and on illness benefit from 18 April 2025. She commenced employment with another creche on 28 April 2025 earning €16.78 per hour on a part-time basis but continued to experience ill-health and only stayed 2 weeks with this employer.  She commenced employment with her current employer outside the country on 11 August 2025, earning approximately €18.76 per hour for a 30-hour week. 

In cross-examination, Ms Byrne on behalf of the Respondent put it to the Complainant that the Grievance Procedure encourages informal resolution and asked why the Complainant did not speak directly to Ms Moniszko about her alleged inappropriate behaviour.  The Complainant responded that she spoke informally to Ms Murray and Mr Cacsiani.  The Complainant accepted she socialised with Ms Moniszko outside of work.  The Complainant responded she did not have an option regarding taking the management position in Grey Abbey. She felt “rail roaded” into the position and had no option but to take it.  The Complainant accepted she was familiar with the Respondent’s Grievance Procedure and the provision therein regarding representation, however, when she said she was bringing her union to a meeting, she was told by Ms Murray that “they wont set foot in the place”.  It was put to the Complainant that during her employment she had resigned on a number of occasions.  The Complainant agreed that she resigned previously when she got a better offer but retracted her resignation.  The Complainant was asked what she understood the informal and formal process under the Grievance Procedure to involve.  The Complainant outlined how she had exhausted the informal stage and had repeatedly requested a formal investigation.  The Complainant was asked if she ever reported the alleged data breach by Ms Moniszko in 2023.  The Complainant confirmed she did and named the person to whom she complained.

Oral Testimony of Ms Ewa Moniszko

The witness outlined her role and confirmed she was the Complainant’s manager.  She outlined the nature of her personal friendship with the Complainant outside of work. She outlined how the Complainant was a fantastic support to her.  Various text messages were opened to the hearing to illustrate the nature of the friendly relationship between them.

The Complainant denied making some of the comments (outlined in the Complainant’s oral testimony) she is alleged to have made.  She explained that she did make some comments but added that the Complainant referred to herself in that manner also and that “all of us were joking” and that the Complainant never asked her to stop. 

The witness outlined that she did not think the Complainant needed support in Grey Abbey as she was very competent. The witness added “I truly believed she didn’t need the same level of support as others”.

In cross-examination, the witness was asked if she was aware on the date the Complainant spoke to Ms Murray that the Complainant had made a complaint about her.  The witness responded that Ms Murray told her that the Complainant said another manager (“D”) was saying bad things about the witness.  The witness became upset and the Complainant hugged her.

It was put to the witness that while she thought the Complainant did not need help, the Complainant had repeatedly asked her for help.  The witness agreed the Complainant asked for help on various occasions and when she did request help that help was given to her.  It was put to the witness that she said: “I will tell you once and once only” and that “I am not here to hold your hand”.  The witness replied she did not say the latter but did say the former, but that she always meant that as a joke.

The witness outlined that she was not aware the Complainant met with Mr Cacsiani, and that none of the issues raised with him were ever brought to her attention.

Oral Testimony of Ms Annette Ackerlind

The witness is a co-owner/director of the Respondent business.  She met with the Complainant on 4 March 2025.  She received a call from the other co-owner/director Ms Murray on 3 March 2025 telling her that the Complainant was having an emotional breakdown outside of the creche.  She reached out to Mr Cacsiani to ask him to request that the Complainant meet with her the following day. 

The Complainant came to her office as requested on 4 March 2025, but before the Complainant had come through the door she was crying and extremely distressed.  The witness told her not to be upset as there was nothing that could not be fixed.  The Complainant told the witness that she had a lot on her plate, she outlined her medical issues, and the personal issues she was dealing with.  The witness asked her if she would engage with the employee assistance programme.  The Complainant said she reached out to them in November 2024.  The Complainant stated she wanted to go to private counselling but could not afford same.  The witness said she would pay for it.

The witness outlined that the owners were always encouraging the Complainant to go up the management chain as she had great potential.  The Complainant outlined to the witness that her mental health was not great and she felt overwhelmed.  The witness said to the Complainant that she thought the timing of the last promotion was not great, particularly given it was responsibility for a new creche.  She said to the Complainant that she should take time off for her well-being and that she should return to her previous role where she had great relationship with the manager at that location.  The witness felt that was the best thing for the Complainant.  She told her promotional opportunities were plentiful and she could progress to the role of manager after she had counselling and felt well enough to do so.  The witness said to the Complainant that she was aware that the Complainant had concerns regarding Ms Moniszko, but she didn’t feel that day was the day to deal with it.  She suggested that they sit around a table another day with Ms Moniszko and discuss the Complainant’s concerns.  The Complainant said “OK”.  The Complainant gave her a hug and left.  The Complainant later sent a text message to thank her for paying for the counselling.    The witness documented the meeting and sent the record to Mr Cacsiani.  She contacted the manager in the Devoy creche and told her the Complainant would be returning there. 

The Complainant then forwarded a medical certificate.  The next thing she knew was the Complainant resigned.  She got a copy of the resignation but did not contact the Complainant. 

As the Complainant had returned to the assistant manager position prior to her resignation her hourly rate was €17.50 at the time of her dismissal.

In cross-examination, it was put to the witness that the Complainant had given a different recollection of the meeting in her evidence and that she was not upset before coming into the office and had no idea what the meeting was about.  The witness responded: “that’s a complete lie she was already upset”.  She disagreed the Complainant did not know the purpose of the meeting.  It was put to the witness that she told the Complainant she had no choice but to return to the assistant manager position.  The witness responded: “that is 100% a lie.  She said her mental health was unstable, and I felt her new role wasn’t helping her in anyway.  She said she was struggling in that role and not getting support.  I knew the area manager was spending considerable time with her, and I asked her was she OK with the systems and offered her help by [name] in the UK.  It is completely untrue to say she was not supported. She might have felt that but that is not accurate”. 

The witness accepted that 3 March 2025 was not the first date she became aware the Complainant was having difficulties.  The witness added: “I was aware she was in need of further support in that creche.  She had never reached out prior to that.  If she did, she would have got whatever support she needed.  I wasn’t aware of anything causing her distress.  When I learned she was distressed at the meeting on the 4th I put a plan in place including counselling, time off, and told her of opportunities for promotion in time.  She thanked and hugged me so I can’t believe this has proceeded to the WRC”.   

The witness confirmed she knew the Complainant had sent an email about Ms Moniszko to Mr Cacsiani, but she did not feel the meeting on 4 March was the day to deal with it.  The witness added: “I believed they were friends and I thought when we sit around the table 9 times out of 10 it could be resolved.  I said to her when you are ready, we will deal with your complaint and arrange a meeting.  She agreed with that.  I didn’t believe her distress was anything to do with Ewa.  I didn’t think it was the day to speak about it. The situation between the 2 ladies could be resolved sitting around the table so I didn’t think that trumped her mental health.  There is no better way to resolve a problem than sitting around a table. Why would she send me a text thanking me if that meeting went so bad? Because it didn’t. It smells what she said”.  The witness denied she said that they were two grown women bitching.

The witness was asked why Mr Cacsiani did not escalate the Complainant’s concerns to her.  The witness responded: “HR didn’t escalate her communications because it wasn’t at that level”.  Ms Conaty asked: “Is a formal complaint not at that level?” The witness responded: “No. We sort things out”.  The Complainant’s written complaint to HR dated 6 February 2025 was opened to the hearing.  The witness was asked if the contents did not indicate that there were serious issues between the Complainant and Ms Moniszko that required HR to escalate the matter to her.  The witness responded: “No.  It didn’t require escalation by HR. It proves HR were dealing with it”.  The witness confirmed that she received the Complainant’s correspondence of 10 March 2025, but the Complainant was on sick leave and as it was now a formal complaint it could only be dealt with on the Complainant’s return.  The witness confirmed she did not acknowledge the communication of 10 March 2025, nor did she say it would be dealt with once the Complainant was fit to return to work.  She felt it would be reckless to correspond with a person absent from work due to mental health issues.  It was put to the witness that the lack of acknowledgement of the Complainant’s correspondence clearly showed the Respondent was not dealing with the Complainant’s concerns and had no intention to.  

Oral Testimony of Mr Adam Cacsiani

The Complainant works in the HR Department.  He was informed by the Complainant on 9 January 2025 that she was having issues with Ms Moniszko.  She outlined her concerns.  He regularly checked in on the Complainant thereafter as he knew there were a lot of issues going on for a new manager in a new creche.  He tried to help her as best he could.  The written correspondence he sent to her dated 6 February 2025 was minutes of the meeting he had with her.  He also sent a copy of the Dignity at Work Policy to her.  Prior to that they had general conversations over the phone.  The Complainant wished to review the minutes of the meeting of 6 February 2025.  She did not return the corrected minutes until 10 March 2025.  On 20 March 2025 she asked to make a formal complaint. The Complainant then went on sick leave and resigned.  The Complainant outlined that the gap in time in responding to her was due to his annual leave, and also the duration of time it took the Complainant to respond to the minutes of the meeting.  He was also trying to arrange an appointment for the Complainant with an occupational health provider. 

In cross-examination, the Complainant confirmed he commenced employment with the Respondent in September 2024.  He said it was possible the Complainant was in touch with him in September 2024 but the first time he recalls being told about the Complainant’s difficulties with Ms Moniszko specifically was 9 January 2025.  The witness could not recall if he directed the Complainant to speak to Ms Murray regarding her concerns.  He confirmed he had frequent phone conversations with the Complainant, but not all calls concerned Ms Moniszko.  He confirmed he told the Complainant to write everything down before he could investigate it.  Various written correspondence between the witness and the Complainant was opened to the hearing.  The witness was asked if the content of the correspondence did not worry him.  The witness responded: “yes, that is why I sent messages to her and was available to chat and establish rapport and that I was there as a friend and someone to talk to”.  He had arranged a face-to-face meeting with the Complainant in January 2025, but Ms Murray turned up at the creche and so that meeting did not take place.  The witness outlined that he had a soft spot for the Complainant and that is why he arranged to meet with her at the first opportunity and that he had acted as fast as he could.  The minutes of the meeting of 6 February 2025 titled “Formal Complaint” were opened to the hearing.  The witness submitted that the title was a typographical error, but he accepted that it would be reasonable to assume from the title that he was dealing with a formal complaint.  He agreed the complaint was a serious one and outlined that that was why he acted upon it.  He outlined that he held a meeting on 6 February 2025 and typed up notes of the meeting, but that it took the Complainant 4 weeks to confirm the minutes of that meeting.  He was trying to establish if there was something worth investigating.  He contacted an external HR consultancy in the interim.  He confirmed he did not tell anyone else within the company about the complaint and that he did not feel it was necessary to escalate the complaint.  The witness was asked if he was not concerned that the Complainant had told him she was so distressed that she was vomiting.  The Complainant responded “no, it is a creche, vomiting happens all the time  - you just go home.  I was there for her, and I recommended a book as someone who also suffers from [redacted]”.

The witness stated he believed he was dealing with an informal complaint, and that his response to her communication while she was on sick leave was to say he would add it to her file. He explained this was his response because he was going on annual leave, and he wanted to keep communication as brief and minimal as possible.  He outlined that he was probably trying to get his response together, but the Complainant resigned before he could do so.  He said he did not respond to her various communications in March and April 2025 because she was on sick leave and he was trying to minimise his responses as it is not the policy of the company to engage until a person is fit to do so.  It was put to the Complainant that he was not consistent in that approach and contacted the Complainant regarding medication she allegedly left assessable to children.  The witness responded that this was serious as a child could be affected so he had to act.  The witness could not recall if he told the Complainant why Ms Ackerlind wanted to meet her on 4 March 2025.

In response to a question from the Adjudication Officer, the witness confirmed he did not make an appointment for the Complainant with an occupational health provider, nor was he ever asked to do so by management.

Oral Testimony of Ms Audrey Murray

Ms Murray outlined that she is a co-owner/director of the Respondent business.  She was the HR and Marketing Director at the material time.  She stated she had a fantastic relationship with the Complainant both in and outside of work.  The Complainant asked to meet with her in November 2024.  They hugged on meeting as was normal for them. The Complainant was very upset. She outlined she was struggling with the medical diagnosis she received in 2023 and that things were getting on top of her.  The witness told her to stop engaging on WhatsApp groups with staff as it was not good for her.  The Complainant told the witness about her issues with Ms Moniszko.  The witness outlined that she was shocked. The Complainant was a huge part of the business and to hear of potential bullying was a shock.  However, there was no concrete evidence provided by the Complainant, not even a text message furnished to substantiate what Ms Moniszko was alleged to having been saying and or doing.  The witness said to the Complainant that she couldn’t understand how Ms Moniszko could be bullying her as Ms Moniszko relied so heavily on the Complainant outside of work.  The Complainant responded that it was also ‘D’ and others also and that there was loads of bitching going on in Roseberry Hill.  They chatted for 2.5 hours.  She reminded the Complainant to get off the WhatsApp groups and to focus on how far she had progressed with the company.  Ms Murray said to the Complainant that the only way forward was to sit down as a group and discuss the issues.  The Complainant thought that was a brilliant idea. That is why she organised this meeting within 48 hours.  The purpose of the meeting was to tell staff that the communications on Whatsapp between staff was inappropriate.  It was the Complainant who brought up ‘D’s’ conduct.  The witness felt her response at that time to the issues raised by the Complainant was adequate in the circumstances and that the meeting would address the Complainant’s concerns.  The witness explained that the matters complained of by the Complainant were minor. She added that, had the grievance now being advanced before the WRC been presented to her at the time, she would have dealt with it.  What was happening was that the Complainant was allowing herself to get sucked into drama in Roseberry Hill and so the best thing to do was have a meeting and mandate everyone to attend.

The witness outlined that the Complainant was very competent and every promotion was a natural progression for her.  She was very excited at each promotion and described everyone as her family and that she would never leave the company.  The Complainant was never told she had to take any promotional role. 

On 15 January 2025 the witness had popped into the Complainant’s place of work.  She had no idea that the Complainant had planned to meet Mr Cacsiani at the same time.  She noticed that the Complainant was beyond distraught and was saying she only wanted to speak with Mr Cacsiani.  The witness told her that was OK.  The witness then asked her if she wished to talk as she was all over the place and the witness thought something had happened in her personal life.  However, staff had told the witness that the Complainant was off in her mood since she returned after the Christmas break.  She took the Complainant upstairs as she could not let her drive home.  She brought another colleague into the meeting also.  The witness asked the Complainant what was causing her such distress.  The Complainant responded: “I don’t know.  I don’t want to be here”.  The Complainant outlined other matters in relation to her mental and physical health [outlined in evidence].  The witness outlined that she formed the opinion the Complainant was not on the correct medication for her needs.  She also referred to a concern [outlined in evidence] she had regarding a parent of a child at the creche.  The Complainant was advised to take leave which she did.

The witness outlined that she received a call from the Complainant on 3 March 2025.  The Complainant was very upset and said everything was getting on top of her.  The witness suggested she take time off and told her she intended to arrange a meeting for her the next day with Ms Ackerlind.  The Complainant went home early that day.  The witness was of the view that the source of the Complainant’s concerns were personal issues. She had no inclination that things were as bad as she had put down on paper to Mr Cacsiani.

In cross-examination, the witness confirmed she had a close relationship with the Complainant.  She confirmed that the Complainant had told her she was having issues with Ms Moniszko, but that she was of the view that the Complainant’s issues with Ms Moniszko were so minimal such as the comment about the Complainant’s physical appearance.  It was put to the witness that she dismissed these comments as being minimal.  The witness responded that she did not dismiss them.  Instead, she organised a meeting within 48 hours.  The witness denied that she said they were to get on with it.   The witness denied announcing the Complainant was appointed as manager without her knowledge.  Instead, the Complainant announced she was taking that position.  The witness denied saying that the Complainant was silly if she thought she was not ready for the management position.  Rather she would not have accepted the position if she did not want it.  The witness said she told all staff gathered at the meeting that there were work related messages being sent outside of work and staff were to desist in inappropriate behaviour.

The witness was asked what supports she put in place for the Complainant following the meeting of 15 January 2025.  The witness said she told the Complainant that she was her port of call, and to come directly to her if she had any concerns.  The witness outlined that she did not know that the Complainant had raised these issues with Mr Cacsiani after her meeting with the Complainant and she did not see his notes of their meeting of 6 February 2025 until after 4 March 2025.  It was put to the witness that she was the HR Director at that time.  The witness responded that the Complainant had said a lot in her oral testimony, but she never furnished her or Mr Cacsiani with any evidence of wrongdoing by way of a text message or any other evidence, and so in her mind no evidence existed of wrongdoing.  It was put to the witness that bullying behaviour is not always evidenced in writing.  The witness responded that the comment in relation to the Complainant’s physical appearance had in fact originated from the Complainant herself, and the Complainant never asked Ms Moniszko to desist from repeating it back to her.

The witness was asked why she did not act on the Complainant’s communications sent after 4 March 2025.  The witness responded that the Complainant was on sick leave, and she understood she would return in a few weeks, and she would deal with it then.  Further she had been advised not to contact her while she was certified unfit for work.  The witness outlined that she stepped back from HR around this time.  She had no knowledge of the Complainant’s written complaint.  The only thing she had heard from the Complainant was the comment Ms Moniszko made in relation to the Complainant’s physical appearance and as far as she was concerned, she dealt with that in the most appropriate way given it was presented to her as a minimal issue.  It was only when the matter was referred to the WRC did she learn of the Complainant’s written communications and the scale of the Complainant’s concerns.  

Relevant Law

Constructive Dismissal:

In a complaint of constructive dismissal, the burden of proof is on the employee to establish that their resignation was not voluntary.  Section 1 of the Unfair Dismissals Act, 1977 (as amended) (“the Act”) defines dismissal, which includes at (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 . . . . ”

Where the contract is terminated by the employee, there is only a dismissal within the meaning of (b) if, “because of the conduct of the employer”, the employee was “entitled” to, or it was “reasonable” for the employee to terminate the contract of employment.  Accordingly, the question of the dismissal must be considered under two headings: “entitlement” (‘contract test’) and or “reasonableness” (‘reasonableness test’).  Either or both tests may be invoked by an employee.  Either test may be applied by the WRC.

The ‘contract’ test is used to assess entitlement to terminate the contract and was summarised in a UK Court of Appeal decision by Lord Denning M.R. in Western Excavating (ECC) Ltd v. Sharp [1978] I.C.R. 121 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance.”

Thus, an employee may be entitled to terminate the contract where the employer engages in conduct which results in a fundamental breach of the contract, or which indicates that the employer no longer intends to be bound by the terms of the contract.

In Berber v. Dunnes Stores [2009] IESC 10, Finnegan J. for the Supreme Court, in drawing on several UK and Irish authorities, noted:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them . . .The term imposes reciprocal duties on the employer and the employee . . . The test is an objective one”.

The threshold is high: it must “destroy or seriously damage” the trust between the parties.  However, it is not essential that the employer be aware of the effect of the conduct.  Nor that they intended such an effect.  Further, in determining if there has been a breach in the implied contractual term of mutual trust and confidence, the conduct of both the employer and employee must be examined as a whole, and the cumulative effect of the conduct must be looked at.  The conduct of the employer must be unreasonable and without proper cause and its effect on the employee must be viewed objectively, reasonably, and sensibly to determine if it is such that the employee can no longer be expected to tolerate the behaviour.

The ‘reasonableness test’ “. . . asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving . . . .” (Cedarglade Limited v. Tina Hilban, UDD 1843).  Thus, it may be reasonable for an employee to terminate the contract because of the conduct of the employer even if the employer had adhered to the contractual terms.

Regardless of whichever test is applied, the threshold for constructive dismissal is very high (Nicola Coffey v. Connect Family Resource Centre Ltd, UD 1126/2014 and Calderon & Others v. Lootah & Others, UD1219/2013).

It is well established that an employee must make reasonable efforts to bring the grievance to the attention of the employer before resigning.  In O’Gorman v. Glen Tyre Company Ltd (UD2314/2010), the Employment Appeals Tribunal (“EAT”) noted: “it is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and the employer be given an opportunity to resolve the issues”.  At a minimum the employee will be expected to exhaust the company grievance procedure.  In Conway v. Ulster Bank Ltd (UD 474/1981), the EAT noted: “it is not for the Tribunal to say whether this procedure would have produced a decision more favourable . . . but it is possible”.

It is settled law that an employee may be justified in resigning without utilising or exhausting the grievance procedure in some circumstances.  In Mr O v. An Employer (no. 2) [2005] 16 ELR 132, the Labour Court outlined “. . . in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal”.  In Schonfield v. West Wood Club Clontarf Ltd (UD1013/2013), the complainant had no one to complain to about the conduct of the General Manager. The EAT upheld the complaint of constructive dismissal.

Redress for unfair dismissal:

Section 7 of the Act provides:

“(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer  . . . , or

(b) re-engagement by the employer  . . . , or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances . . .

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal . . .

(3) In this section—

“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;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay” (emphasis added).

Findings

The Complainant’s position is that she was forced to resign due to sustained bullying by her direct manager, Ms Moniszko.  She outlined that this treatment began in 2023 following a period of absence due to ill-health.  Prior to that she had an excellent working and personal relationship with Ms Moniszko.  She outlined to the hearing that her working conditions were intolerable in that she was subjected to unwelcome comments from Ms Moniszko and she did not receive adequate support from her or other members of management to do her job.  She alleges that neither HR nor senior management took corrective action despite being repeatedly made aware of her concerns. 

It is common case that in 2023 the Complainant underwent medical treatment for a serious medical condition.  According to the Complainant, Ms Moniszko shared information with staff about her diagnosis without her consent and put pressure on her to return to work before she was fit to do so.  According to the Respondent, the Complainant’s medical diagnosis was shared amongst management only.  The Respondent refutes that the Complainant was pressurised to return to work given she was medically certified as unfit to do so.   

The Complainant gave evidence that her manager subjected her to offensive remarks regarding her physical appearance.  These remarks were outlined in evidence and were said to have occurred in 2024.  The Respondent called Ms Moniszko to give evidence.  Ms Moniszko outlined the nature of her relationship with the Complainant, and that they were friends.  She said she made some of the comments on several occasions but added that it was the Complainant who first used one of the comments to refer to herself.  She said she made this comment in the course of “joking” and the Complainant never asked her to desist.

It is common case the Complainant was promoted twice in 2024.  She said she felt pressurised by senior management into taking these positions.  Ms Moniszko, Ms Ackerlind (co-owner/director) and Ms Murray (co-owner/director) all testified as to the Complainant’s competence.  Ms Ackerlind gave evidence that she was always encouraging the Complainant to “go up the management chain as she had great potential”.  Ms Murray gave evidence that the promotions were a “natural progression” for the Complainant, and that at no time had the Complainant been told she had to take the positions but rather was happy and excited to be offered same. 

It was the Complainant’s evidence that she felt overwhelmed in these positions due to the lack of support from Ms Moniszko and management generally.  It is common case that the Complainant repeatedly asked Ms Moniszko for assistance.  According to Ms Moniszko any assistance requested was provided.  However, it was also Ms Moniszko’s evidence that she did not think the Complainant needed support or the same level of support as others as in her view the Complainant was very competent.  Ms Moniszko also said she made the comment “I will show you once and once only”, but that she made this comment as an ongoing joke. 

It is common case that grievance and dignity at work procedures were in place which provided for both informal and formal resolution as “options” open to an employee who wished to have a concern/s dealt with. 

It is common case that Ms Murray was on notice of at least some of the Complainant’s concerns from November 2024 and having heard the Complainant’s concerns at that time in some detail over the course of a two and a half hour meeting, she concluded they were minor workplace issues and could be resolved informally.  A meeting with all relevant staff was organised without undue delay.  It was not disputed by the Complainant that informal resolution was provided for under the company dispute resolution procedures and that she agreed to this approach at the outset. 

I accept the Complainant’s testimony that she was not satisfied that her concerns had been resolved following Ms Murray’s intervention in November 2024.  She spoke with Mr Cacsiani (HR) in December 2024.  He advised her to document her concerns in writing, and to forward same to him.  He provided the Complainant with details of the employee assistance programme.   

In January 2025, Ms Murray became aware, or should have become aware, that her attempt to resolve matters informally had not succeeded.  Ms Murray gave evidence of meeting the Complainant in January 2025 (the date and time the Complainant was due to meet Mr Cacsiani to outline her continuing concerns).  Ms Murray outlined that she witnessed the Complainant as being “beyond distraught” on this date. She thought the Complainant’s issues on that day were “personal”.  She was also of the view that the Complainant “was not on the right medication”.  I prefer the evidence of the Complainant that she told Ms Murray on this date that she was “sick” telling her of her work-related concerns, and that she now wished to have her concerns dealt with by Mr Cacsiani. 

The Complainant documented her concerns in writing as had been directed by Mr Cacsiani in December 2024 and presented same to him in writing by email on 15 January 2025.  Mr Cacsiani arranged to meet with the Complainant the same month.  This meeting ultimately took place on 6 February 2025.  Minutes of the meeting were recorded under the heading “Initial Meeting – Formal Complaint – 6th February 2025”.  It was the Complainant who requested additional time to amend the minutes of that meeting.  As a result, the minutes were not returned to Mr Cacsiani for approximately one month, which in turn delayed the progression of the complaint.

The Complainant understood that a formal investigation would be commenced by Mr Cacsiani after 10 March 2025.  Having considered the documents opened to the hearing and the oral testimony of the Complainant, I am satisfied that this was a reasonable expectation for the Complainant to hold.  However, before the minutes were returned to Mr Cacsiani, Ms Murray told Ms Ackerlind that the Complainant was reported to be in a “distraught state” outside of the workplace premises on 3 March 2025.  Ms Ackerlind spoke to Mr Cacsiani and asked him to tell the Complainant to meet her the following day. 

I find that it was not reasonable for Ms Ackerlind, at the meeting on 4 March 2025, to conclude that the Complainant’s distress and feelings of being overwhelmed were attributable solely to her medical and personal circumstances.  Ms Ackerlind accepted in cross-examination that she knew the Complainant had sent an email to Mr Cacsiani on 15 January 2025 outlining in detail her alleged concerns with respect to Ms Moniszko and the lack of training and support in the promotional roles.  Ms Ackerlind’s evidence was that she acknowledged to the Complainant at the meeting on 4 March that she knew the Complainant had issues with Ms Moniszko, but that she did not feel that their meeting was the time to deal with it.  During cross-examination, Ms Ackerlind accepted that the Complainant told her at the meeting that “she was struggling” in her role.  I am satisfied that Ms Ackerlind’s direction that the Complainant return to her former role and seek counselling was driven by a belief that the Complainant’s issues were not truly work-related and did not warrant formal resolution.  In the circumstances and having regard to the stage the matter had now reached, I am satisfied that it was unreasonable for Ms Ackerlind to suggest to the Complainant that she should once again “sit around a table another day” with Ms Moniszko to discuss their “personality clash” as she described it. 

It is common case the Complainant went on sick leave after that meeting of 4 March 2025 and did not return to work. 

It is common case that, at least initially, the Complainant had close personal friendships with management, in addition to their professional reporting relationships.  In my view, those friendships ultimately compromised senior management’s ability to act with the degree of objectivity and managerial responsibility required of senior management roles, resulting in shortcomings in the management of the Complainant’s allegations.

I find it was unreasonable for senior management to suggest to the Complainant that she was on the wrong medication and or needed to avail of counselling in the absence of a medical report and or referral to an occupational health physician.

I am satisfied that despite the option of having allegations dealt with formally as provided for within the Respondent’s dispute resolution procedures, and the Complainant’s clear request for same in February and March 2025, HR and senior management had no intention of affording the Complainant that option.  I do not accept Mr Cacsiani’s evidence that he thought at all times he was dealing with an informal complaint.  In any event, there was no doubt from 10 March 2025 that the Complainant had made a formal written complaint.  Yet Mr Cacsiani asked the Complainant again on 20 March 2025 via email if she “still” wanted to make a formal complaint, and if so, she needed to “say that . . . with evidence for your accusations”.  Once again, informal resolution was offered to the Complainant, this time by HR, as follows “ . . . ideally we would like to resolve this informally by getting yourself and Ewa in a room together to discuss the accusations and come to a resolution”.  Prior to the latter communication, Mr Cacsiani had also sent emails to the Complainant outlining that he intended to deal with a serious breach of policy on her return to work concerning medication she had allegedly left on the premises.  It was not disputed at the hearing that this medication had another employee’s name on it.

When the Complainant clarified for the third time that she wished to have her concerns dealt with formally, as provided for within the Respondent’s own dispute resolution procedures, the Respondent had a responsibility to investigate the Complainant’s concerns and make findings in respect of them.  It is common case the Complainant’s subsequent communications regarding her formal complaint were not acknowledged, nor were efforts made to reassure her that her formal complaint would be investigated on her return to work.  The Respondent states this was because the Complainant was on sick leave and management decided not to contact her or acknowledge her communications (other than to raise the issue of the Complainant’s alleged breach of policy).  I accept the Complainant’s submission that at this stage she had lost trust in the Respondent’s willingness and or ability to conduct an impartial and effective investigation of her concerns.  When the Complainant resigned on 18 April 2025, her resignation was accepted by senior management without question, or an offer to place her resignation on hold pending a formal investigation into her complaint.         

On balance, I find that the Respondent conducted it’s affairs in relation to the Complainant so unreasonably that the Complainant was entitled and or it was reasonable for the Complainant, to terminate her contract of employment within the meaning of s 1(b) of the Act.  I am satisfied that the Complainant was frustrated by HR and senior management in her attempts to exhaust the Respondent’s dispute resolution procedures.  Accordingly, considering all the foregoing, I find the Complainant was unfairly dismissed, and compensation is the appropriate remedy in this case.

I accept the Complainant’s submission that her net rate of pay averaged €615.63 per week at the time of her dismissal.  The Complainant remained on illness benefit until 9 May 2025.  She commenced employment with another creche on 12 May 2025.  Her average earnings were €295 net per week in that employment.  She remained in that employment until 29 May 2025.  She received illness benefit between 30 May 2025 and 10 August 2025 and was unfit for work during this time.  She secured “full-time” employment abroad on 11 August 2025.  The Complainant outlined that ‘full-time hours’ in this role is 30 hours per week.  I am satisfied that there was nothing precluding the Complainant from choosing to work similar hours to that worked with the Respondent.  I do not accept the Complainant’s submission that the Respondent should compensate her for future loss (if any) arising from her decision to accept employment consisting of a 30-hour week.  Considering all the foregoing, I am satisfied the Complainant’s total loss arising from her unfair dismissal is €963 net. 

In summary, on the evidence as presented, and having regard to all the circumstances, I direct the Respondent to pay to the Complainant the amount of €963 (net)as compensation for her unfair dismissal.

I decide the Complainant was unfairly dismissed, and I direct the Respondent to pay the Complainant compensation of €963 (net).

Constructive dismissal.