Complainant

Respondent

Parties

Lisa  Burke

Atk Community Centre Company Limited by Guarantee  t/a St. Kierans Community Centre

Complainant

Respondent

Representatives

Aine Feeney ; SIPTU Workers Rights Centre

Thomas Ryan;  Peninsula Business Services

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-00039480-002

31/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039480-003

31/08/2020

The issues in contention concern the alleged Unfair Constructive Dismissal of a Childcare Manager by a Childcare facility. A related Terms of Employment information complaint was also submitted.

The employment originally commenced in September 2013 but the contract, as Manager, in place, at the date of employment end, was dated the 1st January 2019. The employment ended on the 26th June 2020.

The rate of pay was stated by the Complainant to be €720.00 per week for an average 42.5-hour week.

1:1        Unfair Dismissals Act, 1977 CA:00039480-002 

This is a case of Constructive Dismissal. Evidence was presented by Written Submission and Oral Testimony.

The Complainant began with the Respondent in 2013 and by January 2019 had become the Manager of the facility.

In June 2019 a vacancy arose for a Room Leader -Qualification required was Level 6. The successful candidate did not have a Level 6 but was allowed to do the necessary training while in the job. The training was to take place on Fridays. The Complainant, as Manger, pointed out the practical difficulties this would cause to staff ratio numbers on Fridays. She made her views known in writing to the Board. The Board indicated that a relief staff member would be provided on Fridays to make up any shortfall. Delays occurred in this arrangement and it was not fully in place until December 2019.

The Complainant’s predecessor as Manager (Ms. JK) remained on as Office Manager in the Community Centre and on the Board of the overall Organisation. Delays occurred in staff Payroll in October 2019 which was unheard of before.

In addition, at this time it became clear that E mails were being sent in the Complainant’s name by Office Staff. TUSLA legal compliance issues were involved and the Complainant was led to believe that E mails were being sent to the Facility for her attention but were not being passed on to her. This had a serious undermining impact on the Complainant. She was the “Mandated Person” for TUSAL and being denied access to E mails had serous Child Care Compliance risks.

In late 2019 the Complainant felt that performance issues were arising with the new Room Leader. A meeting was promised to take place with the Room Leader (Ms.MC), the Complainant as Manager and a member of the Board. This never happened.

A general staff meeting took place on the 20th February 2020 where a new organisational structure was outlined – the Complainant was to remain as Childcare Manager, but Administration was to be done by a Community Centre Manager. This led to considerable staff confusion as to who was in actual charge and the Complainant felt undermined in the eyes of the staff.

In February and March 2020 two incidents arose concerning Ms MC – an alleged food incident and a rough handling of a child incident. The Complainant felt that these issues should be reported to TUSLA and the Children’s parents. She was instructed not to do this and simply report to the Board and let the Board deal with it before it went outside of the Facility. The Complainant, as “Mandated Person” reported the incidents to TUSLA and to the Parents. The Board wrote to her and stated that she had not followed proper internal procedures. Correspondence of April/ May 2020 refers.

On the 26th February 2020 and the 23rd April 2020, in keeping with the Company Handbook, the Complainant lodged Grievances with the Board. However, at this stage Covid 19 had arrived and the Centre/Facility was closed. The Grievances remained unanswered until a meeting was arranged for the 18th June 2020 with a Third Party (Ms. F).

It is important to note that the Complainant felt she had been left with no option but to resign and had done so on the 12th June 2020. She felt that she had been completely undermined in every sense both personally and professionally.

An Outcome to the Grievance was received on the 23rd July 2002. It came from the Chairperson of the Board and not from Ms. F who had heard the grievance. The Outcome was completely unsatisfactory as it avoided the Complainant issues concerned and no right of Appeal was referred to. The entire process was in total contradiction of the Organisation internal Staff Handbook and was at complete variance with any rule of Natural Justice.

In addition, the Complainant had never been provided with a proper Contract of Employment as a permanent Childcare Manager. The Complainant’s Union SIPTU pointed out the relevant sections of SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures that had not been observed.

As regards the Constructive Dismissal argument the Complainant felt that she had satisfied the two standard Tests of Breach of Contract and Unreasonable Behaviours. The actions of the Board members in undermining the Complainant and effectively belittling her legitimate Compliance concerns as regards Ms. MC, the staff ratio on Fridays, the E mail /password issues and the very unusual & delayed handling of her Grievances were all grounds to support her Constructive Dismissal claim. She had been, as a long-standing member of staff and the Designated Person, seeking to ensure the highest TUSLA /Legal compliance standards.

She had been completely unsupported by the Board and was left with no “reasonable” option but to resign.

1:2         Terms of Employment (Information) Act, 1994 00039480-003

The Complainant alleged that she had never received a proper Statement of Terms of Employment or a proper Contract on her appointment as Manager on the 1st January 2019. She was given a Fixed Term contract whereas a permanent Contract was the correct legal position.

2:1          Unfair Dismissals Act, 1977 CA:00039480-002 

The Respondent relied on a Written submission and Oral Testimony from a number of Board Members & Managers.

The Complainant was the Manager of the Childcare facility and looked after Staff Rotas and the operation of the building. Ms. JK, the Complainnat’s predecessor as Manager, in December 2018 had stepped down but had remained as Administrator and still a Board Member. Unfortunately, she became seriously ill and was replaced by Ms. GK in late 2019.  Ms. JK, the former Manager, had been part of the initial job interview for and later authorised the weekly training on Fridays for Ms. MC, the Room Leader, appointed in mid-July 2019.

Ms.MC was the subject of a “Rough Handling” complaint, to the Board, from the Complainant in March 2020 and a later “inappropriate feeding” complaint. The Respondent contended that the Complainant had developed an very negative attitude, both personal and professionally, towards Ms.MC.

The inappropriate feeding complaint was brought to the Respondents notice on the day the Centre was closing due to Covid 19 in March 2020. The Respondent stated that they were concerned with the Complainant reporting issues to TUSLA and Parents before a proper internal investigation had taken place. The Good Name of other employees had to be given due regard in any investigations. The Complainant had not followed proper procedures in the reporting to TUSLA and Parents prior to a proper investigation.

The general staff meeting of the 20th of February was a crucial meeting. The Complainant’s role had been fully clarified and how things would work with GK, as Administrator were also set out clearly.

The Covid close down was challenging but all e-mails for the Complainant had been forwarded promptly to her private e-mail address. An issue with GK signing a Social Welfare required letter as “Manager” on the 16th of March 2020 was explained as a simple bureaucratic issue – to allow Staff avail of Covid benefits the letter was required and Ms. GK had issued it on her own initiative as she was the Payroll person. It was never intended to usurp or undermine the Complainant. An issue with the HIVE computer system was mentioned- the Complainant had set it up but subsequently refused to check it as she felt she had no “clarification as to her role”. The Respondent stated that the clarification had been provided at the February meeting and in further follow up contacts with Mr.MG, the Chairman

The role of the Administration position had never been an issue while Ms. JK was in the role. She was now most unfortunately deceased. The job of the Complainant had never changed in any manner and Ms. GK has simply take over the role vacated by Ms.JK.

The Complainant had instigated the second Grievance procedure after leaving the employment. An Independent Person, Ms F, had investigated and reported to the Board. The Chairman of the Board had issued the outcome to the Complainant on the 23rd of July after she had left the Employment. The suggestion of the Respondent wilfully delaying the Grievance processing was resolutely denied. The Complainant and SIPTU had not asked for an Appeal as the Complainant was in another job by that stage. If asked for, an Appeal would have been heard.

The Complainant had resigned to go to another childcare facility close by the Respondent’s premises. She had given two weeks’ notice at a time the Centre was struggling to re-open post Covid. The resignation was very disruptive to the Facility and delayed its reopening by a number of weeks.

The Complainant had been asked to re consider her resignation both verbally and in writing by several staff and Board Members. Mr. MG’s letters/e mail of the Respondent had absolutely no wish to see her leave. A detailed letter from Mr.MG, the Chairman, of the 13th June refers.

Oral Testimony was given by Board Member Ms. MJ and by Ms GK. They were fully cross examined by the SIPTU representative for the Complainant.

Both witnesses outlined the running of the Facility and the challenges, both personal and organisational, posed by the terminal illness of the former Manager, Ms. JK and her remaining on in a lesser capacity during 2019. The principal witness was Ms. MJ and she detailed the various interactions with the Complainant during the first half of 2020. The Complainant had had an issue with Ms. MC, almost from the beginning, and this had made life difficult.

Ms. MJ agreed with SIPTU that she had no formal qualifications in Childcare but was a long-standing member of the Board with considerable life and young person experience.

In her view there were no substantial grounds from a Constructive Dismissal point of view in the Complainant’s case. She had been very well treated and there were no “unreasonable” employer behaviours. The Complainant may not have liked, in her mind, some of the actions of the Respondent but her reactions were completely disproportionate. The letters and communications from the Chairman of the Board, Mr. MG, had sought to address all her issues in a calm manner. The letters were exhibited in evidence. Mr. MG had at all times sought to reassure the Complainant as to her position as Manager and had sought to address any Compliance or other issues that the Complainant had. The situation was not helped by being in the middle of the Covid shutdown, but reasonable allowance had to be made for this.

The Complainant had secured an almost equal position in another facility locally and that was her choice. She had never been pushed out and was asked on a few occasions to remain.

Considerable correspondence between the Board and the Complainant was exhibited in supporting evidence.

2:2          Terms of Employment (Information) Act, 1994 00039480-003

The Complainant was provided with a full Contract of Employment on the 1st January 2019. Regrettably it was inadvertently printed off as a Fixed Term contract. It was intended as a Permanent Contract and applied as such. No loss, material or otherwise applied to the Complainant as a result of this clerical/administrative oversight.

3:1        Unfair Dismissals Act, 1977 CA:00039480-002 

This is a Constructive Dismissal case.

3:1:1       The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal, the case being advanced here, the Adjudicator in   A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ 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 other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“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 employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

 She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

 “the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

However, all cases rest on their own individual facts and particular evidence and this has to be considered below. The Constructive Dismissal “tests” i.e. Breach of Contract, Unreasonable Behaviour and the use of Internal Procedures prior to a Resignation will be used as a template.

3:1:2          Constructive Dismissal. Test One - Breach of Employment Contract

The numerous Legal precedents quoted by both Parties in this case, from the classic and headline Western Excavating Ltd v Sharpe [1978] IRL 332 to numerous more recent Labour Court and higher Courts’ findings, all point to the need for a Breach of Employment Contract to be “Fundamental -going to the very heart of the contract”.

From the extensive Oral testimony and written submissions, it was clear that all the standard terms of employment were observed – the Complainant received all her normal renumeration and holiday pay.

The only real question of Breach of Contract was the consideration of how the implied Duty of Care on the Complainant as the Designated TUSLA point of Contact was dealt with. The Complainant felt strongly that the Respondent had failed in their implied contractual duty of care by allegedly frustrating the efforts of the Complainant to report matters to TUSLA and also to the Parents of the Children. The two incidents of Rough Handling and use of Inappropriate Food being the crucial issues.

The Respondent principal witness, Ms. MJ, a Board Member, explained in oral testimony that the Board, while completely committed to observing all legal TUSLA requirements were also sensitive to the overall legal, natural justice, situation. It was their view that before the issues were reported that a proper investigation needed to take place, particularly where the good name and reputation of a staff member allegedly responsible for the Rough Handling/ Inappropriate Feeding, was at risk.

The Board considered that the Complainant had pre-empted this by her early reporting to Parents and TUSLA.

The Oral testimony of the Parties did not point to a policy of a wholesale cover up, by Direction from the Board, of reportable incidents at the creche. It was more of a difference of interpretation of procedures. There was no evidence of a deliberate Policy breach of any Duty of Care, clearly implied, in the Complainant’s Contract of Employment as Manager.

From a Constructive Dismissal point of view the evidence did not point, following all legal precedents quoted by the Parties, to a “Fundamental “breach of the Employment Contract

The Complaint cannot rely on this ground to support the case.

3:1:3           Constructive Dismissal. Test Two – Unreasonable Behaviours / Employer /Employee

Again, the Legal precedents all require that “Unreasonable Behaviours” such as to justify a Resignation are really very bad (physical assault, serious theft etc) and such that no “Reasonable Person” could be expected to put up with them. It is also important to observe that “Unreasonableness” is a two-way street with an Employee having a responsibility toward the Employer as well.

In the Oral testimony and Cross examination, from the Complainant and especially from Ms MJ for the Respondent, a number of issues came to the fore. It was clear that the most unfortunate terminal illness of Ms JK, the Complainant’s predecessor, who was effectively the key Manager in the entire Community Centre/Childcare had left a void that all Parties had been struggling to fill. She was a significant organisational /managerial loss. Her employment period from 2018 to late 2019 as Administrator of the overall Centre was open to being misunderstood.

The organisational interplay between the overall Community Centre and the Childcare Facility had it appeared been easy to accept while Ms. JK was there but after her death issues of role clarification between the Complainant, the Board and the Administrator Ms. GK started to arise.

A key point was the fact that Ms. JK, the former Manager, had been part of the Interview Board for Ms. MC, the Room Leader, and had sanctioned her Friday days off for training. The Complainant had raised reservations about the impact on Staff Ratios of this Friday off policy but had to accept Ms. JK’s decision.

Both the selection of Ms. MC and her Training Days Off were not matters, from the Oral Testimony, that the Complainant was fully in support of. In fact, it was generally accepted that the Complainant and Ms.MC had differences. The fact that the two complaints of Rough Handling and Inappropriate Feeding made by the Complainant involved Ms.MC was not a surprise.

The Board felt, it appeared, that the Complainant was very unhappy with Ms.MC and her early reporting to Parents and TUSLA was part of this. She was also very unhappy with how the Administration position, filled by Ms. GK post the death of Ms. JK, was supposed to interact with the Childcare Manager position. She complained of a “lack of clarity”.

The entire situation was then completely complicated by the COVID 19 shutdown. The Facility did not officially reopen until July but was delayed by the sudden resignation of the Complainant as Manager. In this scenario the Chairperson of the Board, Mr.MG, had become involved and e mail correspondence with the Complainant was exhibited.

The correspondence was very reasonable, to an outside observer, in tone and seemed to have been motivated by a desire to resolve any matters of difference between the Board and the Complainant.

The question arose as to how the Grievances of the Complainant had been handled. The SIPTU representative pointed to SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures and the alleged failings of the Respondent in how the Grievances were handled and replied to. The Independent Person Ms. F, who had carried out an Investigation into one of the Grievances, did not issue an Outcome to the Complainant -this had been done by Mr. MG on the 23rd of July 2020. The Outcome had rejected the Complainant’s Grievances.

Other issues that arose concerned the interactions between the Complainant and Ms. GK, the Administrator who had taken over the Administration brief after the death of Ms. JK. were considered. The Complainant had worked well with Ms. JK for a good few years and the arrival of Ms. GK as Administrator had led to some questions as to who was responsible for what. The Complainant felt that her Childcare Manger role had a wider brief involving Ammonisation duties as well, that the Board of the overall Centre did not completely share. Issues of Passwords especially to the TUSLA site, Payroll, the Running of the HIVE system were mentioned. The Complainant felt that the difficulties over these issues were part of the over effort to “undermine” her. The evidence pointed to some organisational confusion but not to a systematic “undermining” policy.

A particularly sore point for the Complainant was the Social Welfare Covid letter that Ms. GK had issued on the 16th March. Ms. GK had signed the letter as “Manager” -a position that she did not technically hold and was more proper to the Complainant. This action, the Complainant felt strongly, was reflective of the Boards negative view of her and their “Undermining attitude”.  The Respondent view was that the letter was needed in an emergency to ensure Social Welfare payments to all staff and the signing of the letter by Ms. GK was an understandable action in the circumstances.

The Oral Testimony of Ms. MJ, the Board member and supported by Ms GK was well delivered and persuasive. She emphasised that the Board had no agenda against the Complainant and had at all times sought to have good relationships. She was a valued and long-standing member of staff and they had tried to get her to change her mind over the resignation.

Discussions over Compliance issues are normal in this type of Childcare facility and there was nothing unreasonable, to an outside observer, in any actions of the Board.

In a final observation it appeared, from the oral evidence, that a lot of the issues in contention could really be traced back to the transition from Ms. JK ‘s key Managerial role to new arrangements that were open to misunderstandings.

In final summary and from a strict Constructive Dismissal point of view it was hard, as Adjudicator, to see any clear evidence of “Unreasonable Employer Behaviours” of such a very bad nature that could justify a Constructive Resignation /Dismissal claim.

3:1:4          Constructive Dismissal Test Three: Use of Internal Procedures.

This was an issue that the Complainant and her Representative made much reference to.

Two Grievances were lodged – the first on the 26th February /received on the 3rd March and the second on the 23rd of April 2020.  Delays due to the Corvid closure were cited by the Board but a formal Grievance hearing was held on the 18th June 2020, chaired by Ms LF. A formal Outcome was issued on the 23rd July 2020 and signed by Mr.MG, Chairman of the Board. The Outcome did not address, in her view, her specific complaints, (11 in total) as set out in her / SIPTU letter /e mail of the 23rd June 2020.  The Complainant pointed out that no Right of Appeal was offered. In considering this situation it has to be borne in mind that the Complainant had left the employment some weeks previously and had declined to reconsider her resignation.

In addition to the formal Grievance process much reference was made to a general Staff meeting of the 20th February and a meeting with Ms MJ on the 10th March 2020. Contested minutes of these meetings were exchanged on the 2nd July 2020.

Reading these minutes and accepting that issues raised were also touched upon in the oral testimony of the parties especially Ms. MJ and the Complainant the evidence did not point to a non-engagement by either side in the processes. The Respondent pointed to a clear declaration at the 20th February staff meeting that the Complainant was the Manager. In the 10th March meeting directly with the Complainant the same point was reemphasised.

The Complainant had resigned from the Centre -letter of resignation dated the 12th June 2020.

Looking from a Constructive Dismissal point of view there was no doubt that the Complainant and the Respondent had engaged actively from February to July. The Respondent had requested the Complainant to rescind her resignation – MG letter/e mail of the 13th June refers. In this e mail Mr MG, Chairman of the Board refers to various Board Polices, Grievance Procedures etc.

The Complainant made much of the delays in reply to her Grievances – especially the first which was received on the 2nd March 2020. The Grievance Procedure refers to a 10-day deadline and SI 146 of 2000 also refers to the need for speedy procedures.  Some allowance has to be made for the impact of the Covid situation and the complete shut down of the facility for most of the period in question.  However, there is no doubt that unfortunate delays did take place especially after the Grievance hearing of the 18th June -outcome posted the 23rd July 2020.

In final Constructive Dismissal summary on the Procedures issue the evidence pointed to a policy both formal and supported by considerable informal contact and engagement between the Parties. The evidence did not point to a situation where on the 12th June 2020, date of resignation, the Complainant did not have any avenues of communication to address her complaints and thereby giving sound grounds for Resignation.

The Resignation letter stated that

“Over the last few months we have had numerous differences. Unfortunately, it is clear to me that we will be unable to resolve our differences”

On balance and from a review of the evidence, particularly the Oral testimony, this would appear to have been a somewhat pessimistic view.

The Complainant and the Respondent both fully utilised channels of communication and Grievance resolution albeit in a somewhat haphazard fashion towards the end and post-employment.

On balance as a Test, normally to support a Respondent defence, in a Constructive Dismissal case it cannot be said that procedures were not utilised albeit if the handling of the Grievance was somewhat delayed. There is nothing for either side to support or defend a Constructive Dismissal case in the evidence presented.

3:2        Summary and Conclusion.

Taking the standard tests, the evidence pointed to the following conclusions

3:2:1        Breach of Contract

The evidence did not lead to a conclusion that here was a “Fundamental and most serious” breach of contract. This test does not support the Complaint.

3:2:2        Unreasonable Behaviours by both or either side

Unreasonable Behaviour has, by Law, to be “completely Unreasonable” – to be so bad that no reasonable persons could be expected to put up with it and accordingly be forced to resign.

In this case the evidence both written and in Oral testimony, as discussed above in Section 3:1:3, did not allow for a conclusion of completely “unreasonable” behaviour by either the Respondent Employer or the Complainant.

The conclusion does not support the complaint of Constructive Dismissal.

3:2:3        Use of Internal Procedures

Procedures were used and even allowing for the impact of Covid 19 a somewhat loose implementation in follow up /giving outcomes was evident. However, these Respondent failings did not allow a conclusion that a Constructive Dismissal was the only option for the Complainant.

This conclusion does not support the Complaint.

3:3        Final overall Conclusion / Unfair Dismissal

As stated in all Legal texts and the Case Law precedents cited by both Parties, the “Bar in a Constructive Dismissal case is high”.

Having reviewed all the evidence, given over two days of Hearings, and in particular the Oral Testimony from many witnesses the final conclusion is that the Complaint for Constructive Dismissal is not adequately supported.

The Complaint fails.

3:4         Terms of Employment (Information) Act, 1994 00039480-003

The Complainant was issued with a Fixed Term Contract in January 2019. All evidence pointed to this classification as an administrative error – it should have been a Permanent Contract.

The Complainant was at no loss of earnings and clearly knew exactly what her terms and Conditions were. However, there was a technical breach of the Act and some redress is due.

Accordingly, a compensation sum of €350 is made in favour of the Complainant for breach of a statutory right. For clarification this lump sum is not renumeration or wages of any nature.

Constructive Dismissal, Statutory reporting in a child care setting, Terms and Conditions of Employment information.