Worker

Employer

Anonymised Parties

A Software Engineer

A Software Company

Representatives

Emma Quinn, Lewis Silkin Ireland LLP

Act

Dispute Reference No.

Date of Receipt

Complaint under s 13 of the Industrial Relations Act, 1969.

CA-00073041

02/07/2025

The complainant submits that throughout his probationary period he consistently met delivery expectations and had a good disciplinary record. However, following the appointment of a new manager on May 1st,  2005 his situation deteriorated, ultimately forcing him to resign.

He  was asked to complete training which had not been a requirement to pass probation when he was appointed and was made mandatory only two months into his probation. He complained about this to his manager.  

Despite this, the manager insisted on his completing the training to pass his probation and said that failure to complete it could result in probation extension or termination. He  was allocated two hours per week on Fridays to complete it, which was insufficient given his workload.

In May 2025; his manager began closely monitoring his Microsoft Teams availability, regularly making remarks about him logging in late or finishing early, which was incorrect. He frequently attended meetings after 5:30 pm, but this was ignored. He  was made to step down from various roles including as Team Lead.

He objected to his performance being compared to another specific colleague as it overlooked differences in experience, role scope and service.

On May 29th 2025 his manager publicly demanded proof of  something he had said in a discussion, implying mistrust.

Probation meetings with him were cold and unsupportive and he was subjected to repeated punitive responses following any attempt to raise concerns.

He  raised his concerns about the unrealistic expectations, pressure regarding the training, and the lack of support orally and via email. Every time he did, he was called into a meeting, where he was threatened with termination rather than supported. His efforts to raise informal concerns directly with his manager were ignored, and he was never offered mediation or HR support during his employment.

He  raised a formal complaint to HR only after submitting his resignation, as he no longer felt safe escalating issues while under his manager’s supervision. No investigation or mediation followed.

On  Thursday 29th May, he raised concerns via email but received no response. Instead, his manager rescheduled his regular meeting to June 3rd, reframing it as a probation status meeting. In that meeting, he was informed that he was not on track to pass probation and was threatened with termination or probation extension, even if he completed his training the very next day. Later that day, he received a formal email reiterating this assessment.

This feedback contained factual inaccuracies, introduced new criticism not previously raised, and relied on selective framing of events. It appeared to ignore over four months of prior performance and raised serious concerns about fairness and transparency.

On  Wednesday June 4th, the complainant  replied to the probation status email with his concerns. He was on leave on June 5th & 6th and on his return on Monday, 9th June, his manager  again invited him for a meeting. He was fearful of probation extension or termination. He  submitted his resignation via email before the meeting, then made a written complaint to HR afterwards.

He  submitted his resignation on 9th June 2025 and agreed to serve the standard two-week notice period, with his final working day confirmed as 20th June. However, on 13th June, midway through his notice, his manager unilaterally altered this agreement and placed him on garden leave, making that day his last working day. This decision was communicated solely via SMS, with no prior notice, explanation, or discussion.

The ongoing pattern of hostility, unreasonable expectation, the discrimination over training requirements, and retaliatory threats created a work environment that was emotionally and psychologically damaging. Despite his clear efforts to raise and resolve issues internally, his concerns were met with retaliation, intimidation, and inaction.

This treatment constitutes a breach of the employer’s duty of mutual trust and confidence, making continued employment untenable. he had no reasonable choice but to resign. The complainant submitted that the events in the final few days leading up to his resignation should not be seen in isolation, but the buildup of events since the appointment of his new manager must be considered in looking at his resignation.

The complainant’s employment was subject to a six-month probationary period. Details were given of his contract of employment.  In February 2025, the respondent decided that the team’s probation expectations included acquiring an in-house certified administrator qualification.

 A new manager began managing the complainant on May 1st  2025 and was made aware that the complainant seemed reluctant to complete the required certifications. During a meeting between the parties on May 21st, 2025, the complainant told his manager that he would not be able to complete the certification by the end of his probation on June 30th.

He did not provide any indication of progress towards completing the certification, or an indicative timeline for completion. He was reminded of his probation expectations and that failure to complete the certification may lead to an extension of his probation period.

It was also suggested that if he was struggling with his workload, he could temporarily remove some responsibilities from him to give him more scope to complete the certification. The complainant agreed, and was appreciative of, this offer, so his manager transferred these responsibilities elsewhere.

The certification requires on average, around twenty hours of preparation.

By way of examples, engineer who commenced employment on June 16th, 2025, successfully completed the certification on July  4th, 2025. The complainant’s manager was also required to complete the  certification and having commenced employment on May 1st,  2025 completed it on August 1st. The complainant had ample time to complete the  certification before the end of his probation period.

On May 29th, 2025, he emailed his manager under the heading “Quick Check-In” and raised concerns about the  training timeline and his workload.

OnTuesday,June 3rd,2025,his managermethimtodiscusshis underperformance. Following that, he sent a probation status email to the complainant, stating that he was not on track to pass probation and that failure couldleadtoanextension ofhisprobationortheterminationofhisemployment.

As well as his failure to complete the requisite certifications, his manager also identified notable concerns relating to trust and collaboration, communication, problem-solving and availability. He indicated he would work closely with the complainant, provide timely feedback and management support needed to assist the complainant in meeting his probation expectations.

The complainant replied to this  email on Wednesday, June 4th, 2025, and disputed aspects of the feedback. He took annual leave on Thursday and Friday June 5th and 6th, 2026, his manager intended on addressing the email on his return-to-work week commencing June 9th.

On that day, two business days after responding to his manager’s email and three weeks before the end of his probation period, the complainant resigned from his position. In his resignation email, he described the decision as not made lightly and “the right step” for him at that time. Notably, the complainant expressed gratitude for the opportunity and offered to provide a smooth handover.

Given that he had taken two days of annual leave following his resignation, his manager chose not to respond to the  email.

On  June 13th, 2025, his manager sent him an SMS confirming that he would not be required to work  the remainder of his notice period and that he would be paid in lieu of the remainder of his notice period and confirmed that  June 13th  would be the last day of his employment and, his system access would be revoked from that date.

The complainant commenced a new role in July 2026 within a few weeks of his last dayofemployment.

The complainant’s decision to resign was premature. The respondent had raised its concern with him that he had not completed his certification, as well as identifying other notable areas of underperformance. It was made clear to him that his manager would provide him with any support needed in meeting his probation expectations.

The respondent’s probation expectations and performance management of the complainant were reasonable and it had identified the expectations and areas requiring improvement, gave him an opportunity to respond, and expressly offered continued feedback and support. The complainant’s disagreement with this feedback does not establish that continued employment was impossible or that the company acted so unreasonably as to leave no alternative to resignation.

The complainant allegesthat his experience under his manager became increasingly hostile and untenable, ultimately forcing himtoresignduetoconstructivedismissal.

It is important to note that his manager only commenced on May 1st,  2025, just short of five weeks before the complainant’s resignation. During this short time-period, he did not raise any concerns about him.

Legal submissions

In a section 13 dispute under the 1969 Act concerning a probationary constructive, or unfair dismissal, the Adjudication Officer considers whether, from an industrial relations perspective, the employer acted reasonably and proportionately, having regard to the role, expectations communicated, performance during probation and support or engagement offered.

The complainant occupied a reasonably senior role and would have been aware of the general expectations of this role from the job description. Further, he was notified of specific probation expectations in February 2025 in relation to the certifications and that he could have reasonably completed the required certifications during his probation period.

He was on notice of wider concerns of notable underperformance. The complainant chose to resign prematurely, three weeks before the end of his probation period, instead of meaningfully engaging with the Respondent’s feedback during his probation period.

For a claim of constructive dismissal to be successful, an employee must demonstrate that there has been a fundamental breach of contract by the employer and/or that the employer’s conduct was so unreasonable that they had no option but to resign. He has not satisfied this test and therefore it would be inappropriate for the Adjudication Officer to make a recommendation under the 1969 Act.

The respondent relies on case law that demonstrates that an employee should exhaust all internal procedures before seeking to have the matter heard before a third party. Whilst not case law under the 1969 Act, the Respondent submits that the same principles apply to the matter at hand.

The Labour Court stated in Cedarglade Limited v Tina Hliban:

“The Claimant must demonstrate that the Respondent has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for her to remain in her employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective. Therefore, the Court must examine whether or not, by application of a normal standard of reasonableness, an employee in the same circumstances as the Claimant would be justified in resigning in response to the employer’s conduct, whether or not that result was intended. In the Supreme Court case Berber v Dunnes Stores [2009] ELR. 61 Finnegan J held:- “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 sensibility in order to determine if it is such that the employee cannot be expected to out up with it”.

The Labour Court also stated in Cedarglade;

“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... They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank LimitedUDA474/1981.”

The decision in Iasc Sliogagh Dun Garbhain Teoranta Dungarvan Shellfish v Daniel Comanescu referred to the Employment Appeals Tribunal decision of Beatty v Bayside Supermarkets which, in referring to the need to utilise grievance procedures, held:

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

Des Ryan in “Redmond on Dismissal Law” (2017) at page 439 states that;

‘there is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve her grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster Bank Ltd. In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.

In the decision of Feely v Fresenius Medical Care, the EAT found that the employee’s failure to invoke the employer's grievance procedure or speak to a trusted manager about her concerns were fatal to the constructive dismissal claim. In addition, the EAT found that the employee has not allowed enough time to pass to firmly establish whether her superior's behaviour towards her was as detrimental to her employment future as she believed.

A complainant must demonstrate that his resignation was not voluntary i.e. that had no alternative but to resign. The Complainant bears the burden to prove that the Respondent’s conduct was such that it was reasonable for him to terminate his contract.

He cannot demonstrate this. The Respondent’s position is that he was underperforming during his probation period and had not completed the required certifications. The Respondent is entitled to set reasonable probation expectations and performance manage employees who are not meeting those expectations. At the time of his resignation, he had three weeks of his probation period left and had not exhausted the Respondent’s internal procedures. His resignation email does not raise any concerns and instead, expressed gratitude for the opportunity.

There was no good reason for him to resign

In Denise Shaw Kelly v Brothers of Charity [UDD1928], the complainant had failed to exhaust internal processes by failing to submit an appeal in respect of the respondent’s bullying and harassment procedure. The Labour Court ultimately held that the complainant had not demonstrated that it was reasonable for her to resign from her employment and in its decision, the Labour Court specifically noted that the complainant in that case had the opportunity to appeal the outcome of the bullying and harassment process, which she chose not to do.

In Gregory Geoghegan t/a TAPS v A Worker, [INT1014], the Labour Court held:

The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.

The Labour Court determination in Gregory Geoghegan t/a TAPS is specifically relied upon in a number of WRC recommendations including A Worker v An Employer [IR-SC-00001183], An Employee v An Employer [IR-SC-00003791], A Worker v An Employer [IR-SC-00002708], and An Employee A Nursing Home [ADJ-00034814].

The position is further stated in A Compliance Officer v A Waste Company [IR-SC-00000282], where the Adjudication Officer stated:

It is well established that a WRC adjudicator will not entertain cases under the Industrial Relations Act in circumstances where internal procedures have not been exhausted.

Those authorities support the position that the complaint should not proceed to a recommendation where the complainant resigned before using the available internal procedure and before the Respondent had an opportunity to address the underlying performance concerns.

The WRC notification records that an Adjudication Officer may dismiss a complaint or dispute at any time if it is without substance or foundation. In the alternative, no recommendation for compensation is warranted.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

By way of a preliminary observation, I wish to comment on the listing of this complaint as one of ‘constructive’, or any unfair dismissal under the Industrial Relations Act, 1969.

That Act was, at the time of its enactment in 1969, a historic measure in the context of industrial relations. Among other things it established the Rights Commissioner service which became an invaluable resource to industrial relations practitioners, especially in the days before the evolution of employment rights law.

The Solomon-like wisdom of many of the Rights Commissioners is the stuff of dispute resolution legend. The service was a pioneer of Alternative Dispute Resolution in the field of employment.

In respect of the general jurisdiction, to use that word loosely, set out in the Act, it was to investigate what were described as ‘trade disputes’. There were some restrictions; it would not include rates of pay, hours etc involving ‘a body of workers’; it was concerned with individual rights.

The role of the Rights Commissioners, as per section 13 (2) of the Act was to ‘investigate any trade dispute referred to him and make a recommendation’ (only) ‘setting forth his opinion of the merits of the dispute.’

A party could object to an investigation.

The number of cases heard by the WRC under the Act is around 8% of the total and, on the basis of my experience, cases tend to come primarily from employments in the public sector or unionised private sector employments. It can be a very valuable method of dispute resolution which contributes to good workplace relations and can avoid reputational damage to businesses.

It is sadly underappreciated and under used.

So, when a matter arises which is presented as a case of unfair dismissal, whether constructive or otherwise, where does this sit with the statutory description of a ‘trade dispute’?

As it happens whether considering a ‘trade dispute’ under the Industrial Relations Act or a case of constructive unfair dismissal under the Unfair Dismissals Act similar principles apply; there is a very high premium placed on equitable conduct by the parties in cases of constructive unfair dismissal under the Unfair Dismissals Act, specifically the need to exhaust internal workplace grievance procedures.

This would be similar to the criteria deployed by Rights Commissioners in the past and their successor Adjudicators in Industrial Relations Acts cases.

Nonetheless, I can see no statutory or other basis to allow a sub-category of unfair dismissal (or any other statutory rights claims) to be substituted for what the Act actually provides for, viz, the investigation of a trade dispute. In respect of this complaint it was described on the complaint form (whether by the complainant or someone else) as a complaint of ‘unfair dismissal’ and then the ‘dismissal type’ further qualified as a complaint of constructive dismissal.

In my opinion, this is legally misconceived and confusing, especially to unrepresented parties, many of whom think, when they are advised of the hearing, that a case listed for unfair dismissal is being heard under the Unfair Dismissals Act, as this is how the complaint is partially described.

As noted, it is, of course, very difficult to avoid reliance on the general principles that apply in statutory constructive dismissal complaints, as the respondent has understandably done in this case, and the case law in that regard is well set out above.

But I feel bound to record my view that the practice of listing complaints under the Industrial Relations Act as complaints of ‘unfair dismissal’ is both legally imprecise and very unhelpful to parties and should be discontinued.

The facts of this case are well set out above. They are not complicated. The complainant started to work for the respondent on January 1st, 2025. He is especially aggrieved that a new performance standard was introduced by the respondent in February but applied retrospectively to him. This, he says, put him at a disadvantage vis a vis subsequent recruits

The complainant submitted that the events in the final few days leading up to his resignation should not be seen in isolation, and says that the buildup of events since the appointment of his new manager must be considered in looking at his resignation.

Unfortunately for him, the period leading up to his resignation can be considered in isolation and the consequences of doing so are fatal to his complaint.

He wrote to his manager on a Wednesday, was on leave on the following two days, and returned to work on the Monday. When his manager proposed meeting him face to face he resigned. He justified this on the basis of what he alleged was the manager’s previous approach in meetings with him and specifically that ‘he was fearful of probation extension or termination’.

This falls so far short of either industrial relations or employment law criteria that it utterly deprives the complainant of any claim to a remedy. He submitted a grievance following his resignation which prompts the obvious question as to why he did not do this the other way around.

A fear of having one’s probation extended or terminated will not suffice to ground a complaint of unfair treatment in this context unless there is overwhelming evidence to support it. Add to this his failure to avail of the grievance machinery and this complaint is at complete odds from the requirements.

For the sake of completeness, the criticism of the manager’s earlier actions in the course of his employment (and noting the respondent’s submission that the manager in question only took over responsibility for the complainant four months into his probation) does not support it; it is very feeble.

It is true the complainant was put at something of a disadvantage in the later announcement of the specific training requirement introduced in February, but not critically so. This was a new company policy and nothing to do with his new manager who was not even employed by the company when the decision was made. He was given two hours on a Friday to undertake the training.

Being told that this might affect the successful conclusion of his probation should not have been a surprise.

He objected to being monitored, and  to having his performance compared to a colleague and also to his manager requiring proof that something he had stated had actually happened. This suggests the complainant  had a poor understanding of the nature and purpose of a probationary period. Fatally, he failed to invoke the internal workplace procedures until after he had resigned.

A person may resign from their employment at any time (subject to any contractual obligations).  However, in order qualify for a remedy under this legislation they must demonstrate some abuse or denial of their rights to fairness which the complainant has failed to do in this case.

I find that the complainant had no grounds for his resignation and no recommendation arises.

Failure to exhaust grievance procedures