Complainant

Respondent

Parties

Darren  O'Kane

ABM Ireland Limited (amended on consent at the hearing)

Representatives

Dermot O’Loughlin

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00072947-001

30/06/2025

The Complainant gave his evidence on Affirmation. His wife Ms Deborah Doyle also gave evidence on Affirmation. Submissions were received from the Complainant in advance of the hearing.

The Respondent was represented by Mr Dermot O’ Loughlin with Ms Sinead Woods, Senior Business Partner, who gave evidence on Affirmation. Submissions were received from the Respondent in advance of the hearing.

Mr O’ Loughlin confirmed the correct name of the Respondent as ABM Ireland Limited. The Respondent’s name was amended accordingly.

The Complainant gave evidence that he commenced employment with the Respondent as a General Operative on 10 June 2024 and remained employed until 30 June 2025. He stated that he worked 18.5 hours per week and earned €500 gross per week.

It was the Complainant’s evidence that he suffered damage to his knee and subsequently underwent surgery. He stated that, at a meeting attended by himself, Rose Phelan and a witness, he informed the Respondent of the injury and the anticipated date of the operation. The Complainant gave evidence that he applied for sick leave following the operation and maintained regular contact with Ms Phelan regarding his recovery. According to the Complainant, when he advised the Respondent that he expected to return to work on 30 March 2025, he was informed that another person had been hired to fill his position.

The Complainant further gave evidence that no work was offered to him following his recovery and that he remained without work until the termination of his employment on 30 June 2025. He stated that he ultimately submitted notice of resignation, contending that the situation had adversely affected his mental health and that he felt unable to continue attending the workplace. The Complainant also stated that he was certified fit to return to work from 1 June 2025. Finally, he raised concerns regarding the timing of the provision of his written contract of employment, which he said was not furnished until several months after he commenced employment.

Mitigation of Loss

The Complainant gave evidence that he did not secure alternative employment immediately following the termination of his employment on 30 June 2025. He stated that he remained under medical care for work-related stress and attended counselling on a fortnightly basis. The Complainant said that he was certified fit to return to work on 1 July 2025 but delayed his job search for approximately one month due to the impact the events surrounding his employment had on him.

The Complainant further stated that he sought alternative employment by applying to approximately eight employers. He subsequently obtained employment with a former employer as a landscaper/gardener, commencing work in early August 2025. He confirmed that he was earning less in that role than he had earned with the Respondent.

Cross Examination

In cross-examination, the Complainant was asked why he had not participated in the Respondent's internal procedures. The Complainant stated that he had lost confidence and trust in the Respondent and did not wish to engage with the process. He further stated that, following his surgery, he felt uncomfortable attending the shopping centre due to interactions with former colleagues and other individuals connected with the workplace, which he said had adversely affected his wellbeing.

The Complainant reiterated that he had notified the Respondent in advance of his planned surgery and had been told that taking the necessary time off would not be a problem. He stated that he subsequently informed the Respondent of the success of the operation and his anticipated return-to-work date. The Complainant maintained that he understood from later communications that his position had been filled during his absence and that this contributed to his belief that he no longer had a role to return to.

Evidence of Deborah Doyle

Ms Doyle gave evidence of a phone call the Complainant received and she was present for, following his operation on 4 January 2025 after his operation. The call was from Ms Rose Phelan who was used expletives during the call despite the Complainant trying to update her about his operation. It was her evidence during the phone call he explained to Ms Phelan that he required 6 weeks off work, but she was unhappy and told him that he had been replaced.

Cross Examination

The Respondent chose not to cross examine Ms Doyle.

Ms Woods gave evidence that she became involved in correspondence with the Complainant regarding his absence from work from approximately April 2025 onwards. She stated that she corresponded directly with the Complainant by email and received medical certificates and other documentation from him during this period.

Ms Woods further gave evidence that the Complainant was invited to attend an absence review meeting in accordance with the Respondent's absence management procedure. She stated that the purpose of the meeting was to conduct a welfare review, establish an anticipated return-to-work date and consider any accommodations that might facilitate the Complainant's return to work. According to Ms Woods, the Complainant initially expressed concerns regarding being contacted while on sick leave but was advised that the meeting formed part of the Respondent's absence management process.

Ms Woods also gave evidence that the Complainant submitted his resignation by email on 23 June 2025. She acknowledged receipt of the resignation, confirmed that his employment would terminate on 30 June 2025 and advised him that any outstanding payments would be processed in the normal manner.

Cross Examination

In cross-examination, Ms Woods accepted that she was not involved in the management of the Complainant's absence prior to April 2025 and that earlier correspondence had been dealt with by another HR colleague. She stated that emails sent by the Complainant to that colleague had not come directly to her attention at the time.

Ms Woods was questioned regarding the Respondent's decision to invite the Complainant to an absence review meeting while he remained certified absent due to work-related stress. She maintained that the absence review process formed part of the Respondent's normal absence management procedure and was intended as a welfare measure. She stated that the purpose of the process was to check on an employee's wellbeing, ascertain the likely duration of absence, and consider any support or reasonable adjustments that might facilitate a return to work. Ms Woods denied that the meeting was disciplinary in nature and stated that the correspondence issued to the Complainant in June 2025 attached the Absence Policy and details of the Employee Assistance Programme rather than the Disciplinary Policy.

Ms Woods also gave evidence that, on 5 June 2025, she wrote to the Complainant confirming that the absence review process had been initiated as a welfare measure, acknowledging receipt of his medical certificate to 30 June 2025 and encouraging him to engage with management to facilitate his eventual return to work.

When questioned about complaints raised by the Complainant concerning workplace issues, Ms Woods stated that grievances were required to be submitted in writing in accordance with the Respondent's procedures. She maintained that concerns raised by the Complainant had been directed to the client's representatives rather than through the Respondent's formal grievance process.

Ms Woods further confirmed that she received the Complainant's resignation email dated 23 June 2025 and acknowledged it on behalf of the Respondent. She accepted that, in that correspondence, the Complainant alleged that another employee had been hired during his absence and raised concerns regarding his treatment by Ms Phelan but maintained that her role was confined to acknowledging the resignation and confirming the termination date of 30 June 2025.

The test for constructive dismissal is set out in Section 1 of the Unfair Dismissals Act 1969, with the burden of proof resting on the employee to establish that either, because of the conduct of the employer, the employee was entitled to terminate their contract, or that it was reasonable to do so.

In complaints of constructive dismissal, the burden of proof lies with the Complainant, who must satisfy two key tests: the contract test (whether the employer breached a fundamental term of the contract) and the test of reasonableness (whether the employer’s conduct was so unreasonable that resignation was the only option).

In this case, the Complainant made an allegation of a contractual breach.

Consequently, the test for breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign.  It is now generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee.

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

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.  The term is implied by law and is incident to all contracts of employment unless expressly excluded.  The term imposes reciprocal duties on the employer and the employee.”

In the English case of Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 Denning J stated:

“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 of more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

Conway v Ulster Bank Limited UDA 474/1981, underscores the importance of exhausting internal grievance procedures before resorting to resignation and subsequent legal action in employment disputes.

The EAT held in Zabiello v Ashbrook Facility Management Ltd. UD1106/2008:

“For a claim for constructive dismissal to succeed the claimant needs to satisfy the Tribunal that her working conditions were such that she had no choice but to resign. The Tribunal is satisfied that the claimant had difficulties with her line manager. However, for a period of six months she did not attempt to resolve the issue.”

Similarly, in Travers v MBNA Ireland Ltd UD720/2006 the EAT held:

‘We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.’

The Complainant submitted that he was effectively left with no position to return to following a period of certified sick leave. He further alleged that another employee had been recruited in his place and raised concerns regarding his interactions with Ms Phelan. In the absence of evidence from Ms Phelan, it is accepted based on the Complainant and Ms Doyle’s evidence that the phone call of January 2025 did occur in the unprofessional manner described. It is further accepted that he was replaced in his employment, again in the absence of contradictory evidence from the Respondent. These events were capable of undermining the Complainant's confidence in the Respondent and go some way towards explaining his loss of trust in the employment relationship.

However, the existence of serious workplace concerns does not, of itself, establish constructive dismissal. The question remains whether the Respondent's conduct amounted to a repudiatory breach of contract or whether resignation was the only reasonable course open to the Complainant.

While the Complainant had genuine grievances arising from the matters described, internal procedures remained available to him which allowed for him to raise his concerns particularly considering the contact from the HR Department.

It is noted that neither the Respondent's account manager nor the HR representative who had direct involvement in the management of the Complainant's absence prior to April 2025 attended to give evidence.

However, it is noted that Ms Woods did engage with the Complainant and  invited him to engage regarding his return to work. The Complainant accepted that he did not engage with those processes because he had lost trust and confidence in the Respondent. However, given that HR had assumed responsibility for the matter rather than Ms Phelan, the evidence does not establish that further engagement with the Respondent would have been futile or that its procedures were incapable of addressing the Complainant's concerns.

In particular, Ms Wood’s email of 5 June 2025 wherein she expressly informed the Complainant that the absence review process had been initiated as a welfare measure under the Respondent's Absence Policy. The email stated that the purpose of the process was to ascertain the likely duration of the Complainant's absence, explore supports that might facilitate his recovery and eventual return to work, and to consider any reasonable adjustments that might assist his reintegration into the workplace

While aspects of the Complainant's account concerning his treatment during his absence are accepted, when invited to engaged by Ms Woods, he unreasonably declined to go so.

The legal authorities are clear that an employee is generally required to exhaust available internal procedures before resigning.

Consequently, the Complainant has failed to discharged the burden of proof that resignation was his only reasonable option. The Complainant in this case has failed to establish that there was a fundamental breach of contract which would meet the requirements of ‘the contract test’.

For this reason, I find the Complainant was not unfairly dismissed.

I find the Complainant was not unfairly dismissed.