Complainant

Respondent

Parties

Bernadette  Brophy

Mountmellick Dental

Representatives

Patrick Marron, BL

Michael McNamee BL

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-00038996-001

31/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00038996-002

31/07/2020

The Complainant contends that she was unfairly dismissed by way of constructive dismissal after the Respondent unilaterally reduced her working hours.  She claims that she is entitled to a statutory redundancy payment by virtue of the fact that she was constructively dismissed.

The claimant was a Dental Nurse and worked for the respondent, a Dentist. The claimant

commenced employment on 11 November 2002.

The claimant was employed since 2002 and was not furnished terms of employment until 2019.

In May 2018, the claimant broke her ankle on Croagh Patrick, which required surgery, and was

off work for 13 weeks and did not receive sick pay. On return to work in September 2018

the atmosphere in the office had turned negative. The Respondent AD was insulting and demeaning to the claimant. In September 2018, AD asked if she had eaten garlic for lunch and a few

days later complained about the claimant's perfume which was only body lotion.

The claimant was not given terms of employment or a contract of employment while working

there. The employer furnished a draft contract to the claimant. On or about 27 September 2019

Mr JK presented to her a draft contract of employment. Mr JK was

appointed as a “mediator” but he exerted undue pressure on the claimant to sign the contract.

The claimant asked for reasonable amendments which the employer did not agree to. The

claimant solicitor sent a letter 12 November 2019 and a reminder 3 January 2020. JK

replied on 20/1/20 and rejected most of the requested amendments.  

There was no grievance procedure in place in the employment. The claimant did not receive payslips in a period before May 2018.

The claimant was normally paid €580.00 gross per week for working 5 days per week.

On 3 February 2020 the employer unilaterally put the claimant on a three-day week and the

claimant had to avail of job seekers for 2 days per week. Her gross pay was reduced to

€360.00 commensurately and she had to avail of Job Seekers (after 17 years) for the other two

days. During the three-day week the claimant was required to undertake the same amount of

work as she previously undertook during her 5-day week role. During the five day week, the

surgery was closed on Wednesdays and a half day (from 12.30) on Fridays – during this period

the claimant had to carry out administration work and cleaning. When the surgery opened on a

three-day week, the claimant was required to carry out administration and cleaning work

between patients over the course of the three days, namely Monday, Tuesday and

Thursday, notwithstanding that her salary had been reduced by €160.00 per week.

She found this to be extremely stressful.

The claimant was put on temporary layoff by the employer as and from close of business on 19

March 2020. Due to the actions of the employer, the claimant

was not entitled to receive the PUP payment. She instead received a sum of €162.00 on

jobseekers for the period 19-25 March 2020.

The claimant queried this with AD. On 26 March 2020, AD asked the claimant

to return on a 3-day week from 30 March 2020 at 70% of normal pay being €273.00, which

was less than half of her previous gross salary. The claimant queried with AD as to

why she was not entitled to receive the Covid Wage Subsidy. AD asked the claimant

to investigate job seekers benefit for the remaining 2 days per week, but no clarity was given

beyond this and AD made no effort to address these matters. The claimant became

very upset and was certified as unfit to work due to stress following this.

On 19 May 2020 AD emailed the claimant asking her to return on 25 May 2020. The

claimant emailed the same date and asked

“Could you please forward terms and conditions under which I will starting back to

work…”

AD replied

“In response to your last email you will be returning to work on the basis of the contract

already provided and which reflects terms and established over time.”

AD later said it was 3 days per week.

The claimant wrote on 22 May 2020 saying she would not return the next Monday.

“In light of all that has happened over the past 6 - 8 months, and the manner in which

the issues I raised with you have been dealt with and/or overlooked, and in particular

the manner in which you have treated me since February, and during the Covid-19

pandemic in March 2020, my trust and confidence in the employment relationship with

you has been damaged and broken down.”

The claimant met with AD on 25 May 2020. The claimant said that if she was to work

3 days per week it should be 3 days in succession. AD did not agree to this. AD said there would be big changes in the workplace and said the following words or words

to the following effect

“When you return to work there will be big changes, no cups of

tea exchanging niceties talking about what is happening with the

Kardashians, no talking to the Patients in the reception area asking them

how is your Mother and Father.

I will have to watch you as you are a bit distracted, not

100% since last September and I no longer trust you and am worried about the safety of the Patients…

Maybe the job is not for you anymore and maybe it is time for

a change.”

Following the meeting, AD emailed the claimant saying the claimant could come back

on 3 days per week, sign the contract and accept disputed points were grievance complaints as resolved or resign the following Friday. The claimant sent an email on 29 May 2020 saying she resigned, following which she received 1 weeks pay for annual leave and a reference.

The claimant resigned by email 29 May 2020 stating

“I note that we met on Monday last, 25th May 2020, to discuss work related issues but

nothing tangible has been put forward by you to address my concerns in accordance

with my legal and statutory entitlements.

Given the foregoing, I will not be in a position to return to work on Tuesday next, 2nd

June 2020.

Please direct all future correspondence relating to or touching on each and every aspect

of my employment with WA Smithwick & Sons, Solicitors.”

In an email 5/6/20 AD said in an email

“I really need you to return, on Monday next. If you decide to continue your absence,

you will leave me with no option but to accept that you have chosen to leave your employment.”

Insofar as the employer furnished a draft contract of employment, it was not in

compliance with the Terms of Employment Information Act 1994 as amended in that:-

It was not signed by the Employer

It did not contain the detail required in s.3.1.(ga) of the Terms of Employment Information Act

namely

“( ga ) that the employee may, under section 23 of the National Minimum Wage Act, 2000,

request from the employer a written statement of the employee’ s average hourly rate of pay

for any pay reference period as provided in that section”

Redundancy claim

Dismissal under the Redundancy Payments Act 1967 is defined to include termination by the

employee. Section 2 states

““date of dismissal”, in relation to an employee, means—

(a) where his contract of employment is terminated by notice given by his employer,

the date on which that notice expires,

(b) where his contract of employment is terminated without notice, whether by the

employer or by the employee, the date on which the termination takes effect.

It is submitted that there was no express or implied right of the employer to reduce the

claimant’s work hours and wages. This is not a claim under Section 11 or 12 of the Redundancy

Payments Act 1967. The claimant was not put on short time as the suggested hours were not

less than one half the normal hours.

It is submitted that the claimant terminated her employment by reason of the reduction in wages and working hours. The resignation was wholly or mainly by reason of a redundancy ground in Section 7.2 of the Redundancy Payments Act 1967

“(2) For the purposes of subsection (1), an employee who is dismissed shall be taken

to be dismissed by reason of redundancy if [for one or more reasons not related to the

employee concerned] the dismissal is attributable wholly or mainly to—

…

[(b) the fact that the requirements of that business for employees to carry out work of

a particular kind in the place where he was so employed have … diminished or are

expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no

employees, whether by requiring the work for which the employee had been employed

(or had been doing before his dismissal) to be done by other employees or otherwise,

or

…”

The Complainant submits that there is legal authority that where an employer unlawfully reduced hours of work and pay the employee can treat the action as a dismissal and claim redundancy. It is further submitted that section 9 of the 1967 further supports this position;

9.—(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

                ….

(c) the employee terminates the contract under which he is employed by the employer in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer's conduct.

It is submitted that a redundancy occurred on 29 May 2020.

It is submitted that the claimant’s normal weekly remuneration was €580 per week. Schedule

3.1 of the Redundancy Payment Act says:-

(1) The amount of the lump sum shall be equivalent to the aggregate of the following:

(a) the product of two weeks of the employee's normal weekly remuneration and the

number of years of continuous employment from the date on which the employee

attained the age of 16 years with the employer by whom the employee was employed

on the date of dismissal or by whom the employee was employed when the employee

gave notice of intention to claim under section 12, and

(b) a sum equivalent to the employee's normal weekly remuneration.

(2) In calculating the amount of the lump sum, the amount per annum to be taken into

account shall be that obtaining under section 4(2) of the Redundancy Payments Act

1979 at the time the employee is declared redundant.

Based on employment commencing on 11 November 2002 and terminating on 29 May 2020,

the claimant had circa 17.5 years. At a wage of €580 the redundancy payment should be €20,850.

Unfair Dismissal Claim

In the alternative to the redundancy claim, the claimant claims unfair dismissal on 29 May

2020.

The claimant’s wages were €580 per week, as being the amount properly payable per week.

There was no express or implied right of the employer to reduce the claimant’s work hours and

wages.

Regulation 4 of the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977

(Consolidated) S.I. No. 287 of 1977 provides:-

“4. In the case of an employee who is wholly remunerated in respect of the relevant

employment at an hourly time rate or by a fixed wage or salary, and in the case of any

other employee whose remuneration in respect of the relevant employment does not

vary by reference to the amount of work done by him, his weekly remuneration in

respect of the relevant employment shall be his earnings in respect of that employment

(including any regular bonus or allowance which does not vary having regard to the

amount of work done and any payment in kind) in the latest week before the date of

the relevant dismissal in which he worked for the number of hours that was normal for

the employment together with, if he was normally required to work overtime in the

relevant employment, his average weekly overtime earnings in the relevant

employment as determined in accordance with Regulation 5 of these Regulations…

6. For the purpose of Regulations 5 and 7(b) of these Regulations, any week during

which the employee concerned did not work shall be disregarded and the latest week

before the period of 26 weeks mentioned in the said Regulation 5 or 7(b), as the case

may be, of these Regulations or before a week taken into account under this Regulation,

as may be appropriate, shall be taken into account instead of a week during which the

employee did not work as aforesaid.”

It is submitted that the normal weekly wage was €580 per week.

The claimant resigned on 29 May 2020. It was reasonable for the claimant to terminate

her employment for the reasons set out herein.

Sworn evidence was given by the Complainant.  She stated that she commenced employment in November 2002.  She fractured her wrist in 2018 and was on sick leave for 16 weeks.  When she returned, the atmosphere in work was very bad.  She asked the Respondent for a pay rise, as she had not received any increase in pay for 12 years.  In or around June 2019, some six months after her request, she received €30 per week pay rise.  The Complainant stated that she was a Dental Nurse/Receptionist.  She did everything including taking out the bins.  For most of her employment she did not receive a written contract or payslips.  When the HR Advisor presented her with a 9 page long written contract, she felt bullied by his calling her to send back the signed contract.  On 10th January 2020, the Respondent told her there was going to be a 3 day week from 24th February 2020.    She worked Monday, Tuesday and Thursday doing the same work in 3 days as she did in 5 days.  There were the same number of patients, Reception, Administration, Dental assistance all carried out in reduced time.  On 19th March 2020 she was laid off due to Covid.  On 23rd March 2020 the surgery was closed due to Covid.  She received job seekers, but did not get the PUP due to shorter working week.  She then enrolled in “Ireland on call” and got employment as a contact tracer.  She was asked by the Respondent to come back to work but only on 70% of wages and no top up. 

The Complainant was employed by the Respondent from November 11th, 2002 until, after an absence imposed by the impact of the Covid-19 pandemic, Ms Brophy failed to return to work. She was invited to do so a number of times.

It emerged that during the period of lay-off, the Complainant took up new employment, and

effectively resigned from the Respondent’s employment.

Chronology of Events

After almost 17 years of working together, some tensions and discord arose in the

employment relationship.

Ms Dillon sought the assistance of a HR Advisor to assist in addressing these tensions through

a mediation process.

After initial exchanges the HR Advisor proposed that a small number of changes would be

effected to restore harmony in the necessarily close working relationship.

Part of the response to the situation that emerged was the formulation of a written contract

of employment. The HR Advisor drafted this after consultation with both parties.

This culminated in a meeting between the HR Advisor and the Complainant in the Dental Surgery,

on the morning of September 27th, 2019.

At this meeting a hardcopy of the draft contract was gone through with the Complainant and a

copy was left with her for her consideration. The meeting was both positive and cordial with

no element of disagreement or dissatisfaction emerging.

On October 25th, 2019, having not heard back from the Complainant, the HR Advisor made

contact with her to ask when she would be in a position to respond to the draft contract

provided to her four weeks earlier.

On October 31st, 2019, the Respondent received correspondence from the Solicitors

representing the Complainant.

This letter complained about the “unilateral” appointment of the HR Advisor albeit that the Complainant agreed to, and did, voluntarily participate in exchanges with the HR Advisor in question.

In correspondence dated November 12th, 2019, the Solicitors wrote to the Respondent

seeking clarification in respect of a number of provisions included in the draft contract of

employment.

The Complainant’s representatives indicated that she looked “…forward to a smooth working

relationship going forward and is committed to her job”. No issue of disagreement or

discord was raised in respect of the employment relationship.

Following an exchange of correspondence between the HR Advisor and the Complainant’s solicitors, on March 4th 2020, the Respondent  emailed the Complainant pointing out that the HR Advisor and the Solicitors had exchanged correspondence in respect of the draft contract of employment in January, and asked if it would now be possible for both parties to sign off on it.

On March 6th 2020, the Complainant replied to the Respondent advising that following contact with her solicitor, the Respondent should “…contact them directly regarding this matter.”.

On March 8th, 2020, the Respondent pointed out that the draft contract had initially issued in

September 2019, and was subsequently subject to detailed exchanges between the HR Advisor

and the Solicitors. She did not intend to become involved in further correspondence

with a third party, but was happy to deal directly with the Complainant.

As a consequence of restrictions imposed by government on foot of the impact of the Covid19

pandemic, the surgery closed on Friday March 19th, 2020 and the Complainant was

temporarily laid-off from Monday March 23rd, 2020.

On March 27th, 2020, the Respondent wrote inviting the Complainant to return to work on March 30th and assured her that her duties would be confined to reception and that appropriate PPE would be provided.

The Complainant replied declining the invitation to return to work as follows:

“Dear   ,

Thank you for your email.

I am going to stay at home for my own safety and the safety of my family.

Kind regards,”

In response the Respondent advised;

“I acknowledge your view of the present situation as outlined in your last email and I confirm

your request for temporary lay-off during Covid-19 Pandemic.

Best regards”

On March 30th, 2020, the Respondent received a medical certificate from the Complainant covering

the period  27/03/2020 to 16/04/2020. The Respondent responded by advising that medical

certification was not required as Ms Brophy was on temporary lay-off.

On May 15th, 2020, the Respondent wrote to the Complainant wishing her well and advising that she was working towards a return to reopening her dental surgery in June 2020 subject to

approval and guidelines from the Irish Dental Council/HSPCC. The Complainant replied:

“If you could forward reopening dates when you know, that would be great.

Hope you are well.

Thanks ”

On May 19th, 2020, the Respondent wrote again to the Complainant;

“Dear ,

As you may be aware the Dental Council recommended a return to routine dental work from

yesterday Monday 18/05/2020.

There have been some additional recommendations advised late 15/05/2020 to be added on

top of existing dental protocols.

Due to the fact that I am now in a position to implement these recommendations I am

reopening the practice for routine dental work on Monday 25/05/2020 pending some PPE

arrival.

Please confirm that you will return at 9am on Monday 25/05/2020.

All necessary time will be given on this day to discuss and train for moving forward.

In addition can you let me know if you still wish to take 08/06/2020, 09/06/2020,

11/06/2020 as holidays.

Regards”

On Friday May 22nd 2020, the Complainant replied:

“Dear

In light of all that has happened over the past 6-8 months, and the manner in which issues I

raised with you have been dealt with and/or overlooked, and in particular the manner in

which you have treated me since February, and during the Covid-19 pandemic in March

2020, my trust and confidence in the employment relationship with you has been damaged

and broken down.

Given the foregoing, I will not return to the working environment on Monday next, 25 May

2020.

Yours sincerely”

The Complainant failed to advise that she had commenced in new employment nine days previously,

on May 13th 2020.

In the event, the Respondent met with the Complainant on Monday May 25th, 2020.

This meeting was cordial, and opened with an exchange as to how both, and their families,

were personally meeting the challenges of the Covid-19 pandemic and related restrictions.

A discussion ensued re the pandemic response guidelines for dental practice issued by the

relevant professional bodies and their implications for the practice. The Complainant

had been given a copy in advance of the meeting.

The Respondent confirmed that it was intended that the practice would reopen on the three day

week basis implemented on February 21st 2020, prior to the Covid-19 impact, on foot of

financial pressures that had been bearing on the practice.

The Complainant was assured that there would be no change to the terms and conditions of

employment. The Respondent advised that if she obtained work in

another employment on the two days that the practice was closed each week, she had no

problem with this. Indeed she had promised her a work reference for this purpose

when it was agreed that the practice needed to move from a five day week to a three day

week.

The Complainant asked that the resumption in the practice be on a Monday, Tuesday and

Wednesday basis. The Respondent responded that the pre-Covid Monday, Tuesday and

Thursday opening had been established with patients and was not intended to change which

might have financial implications for the business.

The Complainant advised that she had taken up a job; ‘contact tracing’, and would not be available to return to work the next day, May 26th 2020.

The Respondent was somewhat surprised by this revelation but acknowledged that the Complainant

was unsure about what she wanted to do. In the context of the need to resource the

practice, the Respondent asked the Complainant to let her know her intentions by the end of that

week; May 29th, 2020.

The Complainant subsequently wrote to the Respondent on Friday May 29th, 2020;

“Dear

I note that we met on Monday last, 25th May 2020, to discuss work related issues but

nothing tangible has been put forward by you to address my concerns in accordance with my

legal and statutory entitlements.

Given the foregoing, I will not be in a position to return to work on Tuesday next, 2nd June

2020.

Please direct all future correspondence relating to or touching on each and every aspect of

my employment with you to Smithwick & Sons, Solicitors.

Yours sincerely”

The Complainant did not refer to the fact that she had secured employment as a ‘contact tracer’ from May 13th (a role in which, it is believed, she continues to date, October 4th 2020).

The Respondent responded, by email on May 29th, 2020, and referred to her understanding of the

meeting on May 25th, indicating that she;

“…felt that we had a frank discussion, and that you had honestly cleared the air.

I very much regret your decision not to return to work as proposed on Tuesday next , June

2nd.

I would ask you to reconsider this decision and confirm that you will attend at the surgery on

Tuesday.

With regard to directing future correspondence to you through a solicitor, I cannot agree

that that would be reasonable or appropriate.

Yours faithfully,”

The Complainant did not reply to the Respondent’s email, and she failed to return to work on June 2nd.

On June 4th 2020, the Respondent wrote again to the Complainant;

“Dear ,

Further to my last email of May 29th, I am disappointed that you have chosen not to return to

work, and that you have not responded to my email.

You will appreciate that your absence has placed a considerable burden on the practice.

I really need you to return on Monday next. If you decide to continue your absence , you will

leave me with no option but to accept that you have chosen to leave your employment.

Yours sincerely,”

On the basis that this email, like the one of May 29th, was not responded to and the complainant

failed to return to work, the Respondent wrote to her again on June 10th, 2020;

Dear ,

I am very disappointed and quite upset, that you have decided not to return to work.

As I said in my previous correspondence, I have no choice but to accept your decision.

I must now immediately look for a replacement.

I will ask   to calculate payment in respect of any accrued annual leave due to

you. I will also ask that you be paid an additional €500, as an expression of good will.

I wish you well in the future.

Yours sincerely,”

On June 12th, 2020, the Respondent wrote to the Complainant :

“Dear ,

Following on from my last letter dated June 10th, I have received clarification on your holiday

pay accrued. I enclose a cheque for €478.06 for the days due to you. I also enclose a cheque

mentioned in my previous letter for €500 as a gesture of goodwill.

I wish you well in the future.

Yours sincerely,”

To date, the Respondent has received no further contact from the Complainant.

The Respondent was compelled to recruit a replacement dental nurse/receptionist, who

commenced work on 13/07/2020

In Summary

The exchanges between the Complainant and the Respondent as set

out in the chronology detailed herein demonstrate there was no dismissal in the instant case.

Moreover, the Complainant clearly made a choice to leave her employment with the

Respondent, despite a number of exhortations to return to work, and assurances in respect

of the safety measures required and put in place in the context of the HSPCC/Dental

Council’s guidelines in dealing with the Covid-19 pandemic.

There is no basis for the Complainant to declare that she was dismissed on May 12th, 2020,

save for the fact that she declares in filing her complaint, that she took up new employment

on May 13th, 2020. And by so doing, she effectively resigned from her employment with the

Respondent.

CA-00038996001

In the context of the facts set out it is confidently asserted that the Complainant’s claim under

Section 8 the Unfair Dismissals Act 1977, cannot succeed.

There was no dismissal. The Complainant effectively resigned from her employment.

CA-00038996-002

The claim lodged for adjudication under Section 39 of the Redundancy Payments Act 1967,

must similarly fail. There was no redundancy. Ms Dillon was obliged to replace the

Complainant when she failed to return to work after a period of lay-off imposed by

government restrictions as a result of the impact of the Covid-19 pandemic.

The Complainant properly declares in filing her complaint, that she did not apply for

redundancy.

It is also clear from the exchanges set out that redundancy was never raised as an issue either

directly by Ms Brophy or her legal representative.

Sworn evidence was given by the HR Advisor who had been engaged by the Respondent to address the tensions between the Respondent and the Complainant.  He stated that he had been in the business for over 30 years, and had assisted both employers and employees in matters relating to HR and IR.  The Respondent engaged him as discord had arisen between her and the Complainant.  They had worked together for many years and it was in the recent two or so years that disharmony occurred.   There were many reasons for this – business had deteriorated, there had been major flooding in the area and the Complainant had been out on sick leave for a number of months.  The Advisor concluded that some structure needed to be introduced for the clarity and benefit for both parties.  He drafted a written contract and gave it to the Complainant.  He stated that there was no friction between him and the Complainant and he found her to be warm and engaging.  He proposed a pay rise for the Complainant.  He told the Complainant there would be a need to reduce her hours and she seemed to accept this. A firm of solicitors then got involved and he answered their queries. 

Sworn evidence was given by AD, Respondent.  She stated that the initiative to have mediation introduced was to improve the relationship between her and the Complainant.  The HR Advisor met with them and the issue of a pay rise came up.  The Respondent made the financial implications clear, and that it would be necessary to reduce the hours.  She stated that the practice never recovered from FEMPI and that she herself had to take another job.  She spoke to the Complainant in January 2020 about reduction in hours.  They spoke about Monday, Tuesday and Thursday being the days the practice would open.  The Complainant was aware of the situation.      Week beginning 2nd March 2020 was the first full week of reduced hours.  On 19th March 2020 the surgery closed due to Covid-19.  The Respondent wanted to keep the Complainant on in employment.  She wrote to her on 26th March 2020 proposing a return to work on 30th March 2020 on 70% of pay.  The Complainant replied saying that she would remain home for the safety of herself and her family.   Following the lockdown, on 19th May 2020 the Respondent wrote to the Complainant proposing a re-opening on 25th May 2020.    The Complainant replied on 22nd May 2020 stating that given all that had happened over the previous months and issues raised and not dealt with the trust and confidence in the employment relationship had been damaged and broken and that she would not be returning to work.  The Respondent stated that she was “absolutely horrified” to receive that message.  She immediately arranged to meet with the Complainant on 25th May 2020.   She reassured her about safety, PPE, protocols etc.  The Complainant told her that she had had secured another job.  She wanted the surgery to open on consecutive days Monday to Wednesday but this was not practical from the Respondent’s view.  Regarding the Complainant’s allegations that the Respondent had stated to her that there would be “big changes, no cups of tea exchanging niceties talking about what is happening with the Kardashians, no talking to the Patients in the reception area asking them how is your Mother and Father  .. and “I no longer trust you .. and am worried about the safety of the Patients…maybe the job is not for you anymore and maybe it is time for a change”, the Respondent explained that due to Covid, the whole arrangements for reception and dealing with patients had to change.  She did not recall telling the Complainant that she no longer trusted her.

CA-00038996-001    Unfair Dismissals Act

It is common case that the Complainant’s employment was not terminated by the Respondent.  Rather the Complainant indicated her intention not to return to work stating that due to the manner in which she had been treated by the Respondent, the trust and confidence in the employment relationship had been damaged and broken down.  The Complainant’s case is that should she be found to have been constructively dismissed, she can avail of the Redundancy Payments Act.

The first issue to examine is was the Complainant constructively dismissed?

The definition of constructive dismissal in the Act is:

“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”

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract in circumstances where the employer has acted in breach of the employment contract to the extent that amounts to the repudiation of the contract. Secondly, the employee may invoke the ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment but its conduct may be nonetheless unreasonable.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment. In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

In this case, the evidence and submissions show that the employment relationship between the parties turned sour after the Complainant returned from an extended period of sick leave in late 2018.  In evidence, the Respondent stated that the Complainant was “cross” with her when she returned to work.  The Complainant stated that she hadn’t a pay rise in 12 years and she was offended by the Respondent’s remarks to her about odours.  The Respondent gave evidence that she had a medical condition and the Complainant knew about it.  The Respondent engaged a HR advisor to see if the tensions could be addressed.  He met with the Complainant and gave her a draft written contract of employment.  This then appeared to be a matter of some dispute and the Complainant referred it to her solicitors.  Despite the HR Advisor’s comprehensive replies to the Complainant’s solicitors questions and objections to clauses in the contract in January 2020, the contract remained unsigned and seemingly unaccepted up to March 2020 when the pandemic struck.  The events following that time are recounted in the chronology cited in both the Complainant’s and Respondent’s submissions.  The question of whether the Respondent’s conduct was such that it was or would have been reasonable for the Complainant to terminate her employment is addressed as follows:

When the Complainant returned to work, there were tensions between the parties.

The Respondent engaged an experienced HR Advisor.

The HR Advisor not unreasonably, and in order to fulfil the obligations of the employer, provided the Complainant with a written contract of employment in September 2019.  This became a matter of further tensions for the Complainant.

Significantly, the Complainant relies on what was described as “the impermissibly reduced employee’s hours”, meaning the three-day week which the Complainant was put on in February 2020.   The Respondent had advised the Complainant in January 2020, that due to financial difficulties, a three-day week would be introduced in February 2020.  I note that this issue of short term working or layoff was contained in the disputed contract.

The Respondent’s actions can be summarised as (a) the attempts to have mediation resolve tensions, (b) the contract issue which she requested the Complainant return to her some 5 months after it issued, (c) the meeting on 25th May 2020 when the parties met to discuss the Complainant’s intention not to return to work after the surgery was due to open following lockdown, and the alleged attitude of the Respondent to the Complainant when they met, the Complainant having alleged that the Respondent treated her badly, telling her she couldn’t do x, y, z and that she did not trust her. 

This latter point is significant.  While there was a conflict of evidence between the parties as to the tone and content of that meeting, I note that there were obvious tensions and particularly in respect of changes being proposed.  I note the Complainant’s wish to have the working 3 day week on consecutive days however, the Respondent said this was not possible for commercial reasons. I find that it was not unreasonable for the Respondent to have flagged the need for Covid related changes in the particular times.   I note that in that meeting, the Complainant told the Respondent she had started another job.   In relation to points (a) to (c), I find that these actions were not actions / conduct of an unreasonable employer.

It is well established that there is a high bar in relation to the onus of proof resting on the employee to prove that the conduct of the employer was such as to justify constructive dismissal.                         In all the circumstances of this case I do not find that the conduct of the Respondent was such that that it was so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment.  I find that the complaint is not well founded.

CA-00038996-002    Redundancy Payments Act

Section 7 (2) of the Redundancy Payments Act 1967 provides for the definition of redundancy as follows:

“(2) -For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.”

In this instant case, the employee resigned her position, she was replaced and therefore there was no redundancy.  The claim is not well founded.

Unfair dismissal, constructive dismissal, not well founded.  Redundancy Payments Act not well founded.