Complainant

Respondent

Parties

Melanie  Campbell

Arbour Care Group

Representatives

John A. Sinnott & Co. Solicitors

 HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Complainants on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00051512-001

01/07/2022

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

CA-00051512-002

01/09/2022

The Complainant was employed as a Healthcare Assistant from 2001 to April 2022 when she resigned her position and claimed constructive dismissal alleging the Respondent had moved her out of her live in accommodation due to commencing works where she was employed and she maintained that this accommodation was an implied term of her contract of employment and the action of the Respondent was unreasonable. The Complainant could not get or afford to pay rent for new accommodation near where she worked for the temporary period of the reconstruction work.

The Complainant commenced her employment with Clare Castle Nursing Home in August 2001 as a Healthcare Assistant. The Complainant had been recruited directly from the Philippines by Nurseoncall Recruitment for Castle Clare Nursing Home, now the Greystones Nursing Home Ltd. As part of her employment with then owners, Castle Clare Nursing home provided her with accommodation (“staff house”) on the grounds of the nursing home. In February 2021 Greystones Nursing Home was taken over by JWP. In July 2021 the Complainant, together with 3-4 other staff members were told to vacate the staff accommodation by December 2021, due to refurbishment of the staff accommodation. 

Since the Complainant arrived to Ireland in 2001, the accommodation provided to her by Clare Castle Nursing Home was her accommodation over the past 20 years and was regarded by the Complainant as her home. The Complainant has been continuously paying her rent at €216 every 2 weeks, which was deducted directly from her salary. With the current rental market situation in Greystones (and in Ireland in general) the Complainant was not in a position to secure an alternative accommodation which the Complainant could afford, based on her salary. Moreover, the Complainant has been employed on night shifts, 12-hours long shifts, from 8pm until 8 in the morning, while sleeping in the day time. 

The average salary for a healthcare assistant is €18.93 per hour. The Complainant believed that her low salary of €12 per hour based on 20 years of experience and doing only night shifts, was due to the fact that she was living in a rented accommodation, which was provided by her previous Respondent for almost 20 years.

The Complainant believed that her subsidised accommodation was part of the remuneration package, which was transferred to JWP (Evergreen group) when they took over the business. It was a legitimate expectation of the Complainant that, when the business is taken over by the Respondents that the Complainant was going to remain in her accommodation.

It is apparent, that the Complainant had an agreement with her previous Respondents that she could remain in the staff accommodation for the period of her employment. It is also apparent that JWP when taking over Greystones Nursing Home were obliged to carry out due diligence in relation to the takeover and any existing contracts, agreements or arrangements the previous owners had with their staff.

The Complainant lived in the property as her home and the accommodation was tied to her employment at Greystones Nursing Home. In order to ascertain if a term is implied into a contract, it is necessary to determine if there is an established “custom and practice”.  This test was set out in the case of O’Reilly -v- Irish Press. A provision can be implied into a contract by virtue of custom and practice, “where the term is so notorious, so well-known and acquiesced in, that it may be taken to be an implied term of the employment contractdue to the context of past dealings and practices between the parties”. It must not be inconsistent with the contract. The implied term must not be contrary or inconsistent with the express terms of the contract. It is sufficiently certain.

As the Complainant was recruited directly from Philippines over 20 years ago, and was provided with staff accommodation upon her arrival, has been employed on the same terms and conditions of employment for over 20 years, the Complainant’s accommodation was part of her contract of employment.

The Respondent, when it took over the business, agreed to the accommodation supply for 5 months showing that it was part of the contract. It should also be remembered that the parties may conduct themselves in such a way as to imply the existence of a term, even though it was not written into the contract. There must be the intention to create a binding term. Implied terms enable inclusions of terms not expressed in a contract of employment. They are then, by nature difficult to define precisely. It is clearer to say what they are not- they are not express terms. Rather they are terms that have been incorporated into the contract or must be read into the contract.

The conduct and circumstances of the parties is relevant as to whether a term is;

Necessary to give effect to the contract

Clearly mutually understood.

Not in express breach of the contract.

Established over a period of time.

There has been considerable recent ECJ development in the recognition of implied terms. It will be important for Complainants and Respondents to be aware that sometimes the ‘contract ‘or relationship contains provisions that may be read into the contract where this is necessary and proportionate and fair. Having been in the staff accommodation for over 20 years, after being recruited directly from abroad, the Complainant strongly believed that provision of staff accommodation has been implied into her contract with her previous Respondent.

There is a legal obligation under the TUPE regulations in Ireland for the new Respondent to take on existing staff under the same contractual terms. The regulations state:

“Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement”. It is clear that the Respondent is in breach of TUPE regulations and did not have sufficient regard for the Complainant’s arrangements with her previous Respondent.

As the Respondents deprived the Complainant of staff accommodation, the Complainant was not in a position to afford rent elsewhere based on her low salary.  As a result of loss of accommodation, which has been provided for the Complainant for the period of over 20 years, the Complainant believed that she had no other choice but to resign from her position with the Respondents and notified the Respondents of her decision, and the reasons for her decision on 13/01/2022 and her employment ended on 03/04/2022.

As a result of the ongoing stress caused by the Respondents, the Complainant has suffered a severe rosacea which, as confirmed by her GP, is directly related to stress and anxiety suffered by the Complainant. The Complainant had to move out of the staff house while of sick leave.

It can be construed as dismissal if a person’s conditions of work are made so difficult that he or she feels obliged to leave. This is called constructive dismissal. In other words, the Complainants work-life has become intolerable due to the conduct of the Respondent, and they had no alternative but to leave the employment. The Complainant did not want to leave, her resignation was not voluntary, and therefore in effect it was a termination of her employment. 

The Complainant disagreed with the Respondents submissions, where it was claimed that she did not follow grievance procedure. The Complainant had on numerous occasions spoken to a person in charge about the issues, who often replied that she was too busy and would talk to her later. The Complainant had sent numerous letters mostly with no replies and had only one meeting with the Respondents representatives. The Complainant engaged extensively through correspondence on the issue and letters dated 25.11.21, 28.1.22, 28.3.22, 2.3.22, 25.3.22, 17.6.22 and 21.6.2022 were submitted to support the claim the Complainant engaged in a grievance process. Moreover, during the renovations the Respondents were notified of the Complainant’s ill health, as the Complainant was out on a certified sick leave on a few occasions. Furthermore, the Complainant stated that there were 3 changes to person in charge in a short period of time.

With reference to the Respondent’s submissions, the Respondents claim that  “as part of renovations of Greystones nursing home and surrounding buildings there was a requirement for extensive remedial works which to date are close to 750,000 for both the house and nursing home“the Complainant advised  that the staff house is a completely separate building from the nursing home building and the staff house work was only a very minor part of the €750,000 spent on refurbishments and could have been undertaken with staff allowed to remain on the premises The Complainant also understood that the new staff hired from abroad were in residence within 3 months of the Complainant’s leaving and there are now 5 new staff and staff were hired directly from abroad from Romania and India and paying €500-€600 in rent, and not €214, which the Complainant was paying. 

The Respondents claim that the Complainant’s accommodation was subject to a separate contract by way of a periodic tenancy. The Complainant however did not enter into any separate tenancy agreement, but her accommodation was provided to her on her arrival to Ireland and which was directly connected to her employment duties, and thus formed part of her employment contract.

Periodic tenancy agreement – Periodic tenancy is a lease that has a set period of time and each period is automatically renewed and will continue indefinitely beyond the initial period until terminated by notice to quit, and notice period for same are set down by statute and common law. There had not been however a set period of time, when the Complainant initially commenced her employment with Clare Castle Nursing Home instead, it formed part of her contract of employment.

The Respondent is denying the aggregated stress, however there should be no doubt that the Complainant was under considerable stress and pressure when the Complainant was about to become homeless. The Respondents claim that the stress was caused by Covid-19 pandemic. However the Complainant has not once been on a sick leave during the heights of the pandemic and her condition severely aggravated upon receiving her notice of termination. This is shown in the Complainant’s doctor certificates.

 The Respondent claimed that “the only way the right accommodation can be a term of contract of employment is if there is an express term of a service occupancy agreement”. This was disputed as not being the law. The accommodation in this case was clearly part of the Complainants contract.

The Respondents have breached the terms of her contract of employment, either by not carrying out their due diligence in relation to arrangements with her previous Respondent, or by ignorance in relation to those arrangements. As a result of this, the Complainant has lost her home of over 20 years. The Complainant had to quit her job, as the salary she was on while working for Greystones Nursing Home was not sufficient for her to rent accommodation in the area. The Complainant is still not in employment because of facial rash and recurring flare up and has only had 10 days of part time employment with 5 different Respondents in the last 9 months. The Respondent did nothing to provide the Complainant with a different, temporary accommodation on the Nursing Home grounds.

The Complainant had visited a lot of accommodation that was advertised in and near Greystones. Some were suggested by a Representative of Evergreen. Most of the advertised houses were outside of the Complainant’s price range or the Complainant received no replies from landlords.

Due to the stress of becoming homeless, the Complainant suffered a severe rosacea.

The Complainant believes that the Respondents are in breach of TUPE regulations by not respecting the agreement which the Complainant had with her previous Respondent – i.e. that staff accommodation formed part of her contract of employment. As a result of that breach and the Respondents failure to provide the Complainant with no other accommodation, the Respondents behaviour was such that Complainants work life has become intolerable due to the conduct of their Respondent, and they had no alternative but to leave the employment.

The HR Manager appeared on behalf of Evergreen Group and accepted they were the Complainants Group Respondent under the name Arbour Care Group due to TUPE at the time of her resignation.

Greystone Nursing Home was owned by Arbour Care Group which was purchased by JWP in Dec 2020. Arbour Care Group, owned by JWP, is now managed under the Evergreen Care brand but continues to legally own and operate as Arbour Care.

As part of the renovation of Greystone Nursing Home and surrounding buildings there was a requirement for extensive remedial works which to date are close to 750,000 Euro for both the house and nursing home. Due to the extensive nature of renovations the Respondent required the Complainants in the house to move out while this occurred and would have the option to move in again once it was completed.

Complainant's date of commencement of employment — in or around 2001.

Complainant date of termination of employment — in or around May 2022.

Tenant's date of commencement of the tenancy in or around 2001.

Tenants-service of notice to quit — in or around July 2021

Tenant termination of the tenancy — in or around March 2022.

The Complainant believes the contract of employment contains a term of accommodation for the duration of her employment. The Complainant believes the notice to quit served on her in July 2021 is therefore in breach of her contract of employment and therefore necessitated her leaving employment thereby resulting in constructive dismissal. The Respondent maintained that the Complainant's accommodation is not a part of her employment contract and is subject to a separate contract by way of a periodic tenancy agreement.

Breaches of the Residential Tenancy Act 2004 — The Complainant claimed that the Respondent has breached the notice requirement justifying necessitating her departure from her employment. The Respondent disputed such breaches.

Stress causing Complainant the necessity to leave her employment — the Respondent disputed this entirely. The currency of this dispute runs through the height of the Covid 19 pandemic. This in and of itself creating large amounts of stress as averred to in the Complainants correspondence. However, the Respondent made, at considerable expense, several attempts to alleviate pressure due to departure and sickness.

The Complainant at not stage used or engaged with the grievance procedure — despite referring the Complainant on to same the Complainant at not stage used the grievance procedure set out in the Complainant handbook.

The Complainant must persuade the Adjudicator that her resignation was not voluntary.

 Circumstances in which notice of termination can or may be dispensed with are indeed rare and set a high standard of proof for an Complainant. Meaning constructive dismissal cases require firm evidence that the Complainant was subject to such a dismissal. This has been repeatedly illustrated in a series of decisions of the Employment Appeals Tribunal and the Workplace Relations Commission for example the following 17 cases all highlight the strict high standard of proof upon an Complainant to prove Constructive dismissal:

Allen v Independent Newspapers (Ireland) Ltd [2002] ELR 84;

Harrold v St Michael's House [2008] ELR 1;

Joyce v Brothers of Charity Services [2009] ELR 328;

O'Sullivan v O'Sullivan [2009] ELR 334;

An Complainant v An Respondent [2010] ELR 205;

O'Carroll v Sovereign Security Ltd [2011] ELR 281;

Murray v Rockabill Shellfish Ltd [2012] ELR 331;

Bodziach owska v Douglas & Kaldi @ Dundrum Ltd [2013] ELR 108;

Mannion v Noughton and Noughton [2014] ELR 36;

O'Donoghue v Watchford Ltd [2016] ELR 216;

BalTy-Ra1ph v HSE [2016] ELR268•,

Hoban v Kildare County Council [2017] ELR 54,

Benitime Ltd v Onit [2017] ELR 157;

Noonan v O'Leary UD1369/2014

Wandoch v Aldi Stores (Ireland) Ltd UD897/2015;

O'Brien v Liberty Insurance Ltd UDI 63/2015;

O'Connor v Sugardolls Nail Bar and Beauty Ltd UD902/2015.

There are two tests contained in the statutory definition of constructive dismissal, either or both of which may be invoked by an Complainant. The first is 'the contract' test where the Complainant argues 'entitlement' to terminate the contract. Secondly, the Complainant may allege that he or she satisfies the Act's 'reasonableness' test. For example some circumstances, an Respondent may have acted within the terms laid down in the contract of employment but its conduct may be nonetheless unreasonable. Under Irish law, either test may be applied by the Workplace Relations Commission, although it may be a matter of inference which test is followed in the circumstances. Whereas sometimes the Adjudication Officer will expressly delineate between his or her treatment of the tests, in general, the two tests are frequently regarded as interchangeable. In a 2017 decision of the Workplace Relations Commission the Adjudication Officer in An Complainant v An Respondent ADJ-00004851 (25 May 2017) stated of claims of constructive dismissal:. 'In such cases the critical issue is the behaviour of the Respondent, although the Complainant 's behaviour must also be considered. Generally, the criterion regarding the behaviour of the Respondent 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 Complainant to terminate the contract on the basis of the Respondent's behaviour.

The Respondent's behaviour in requiring the Complainant to leave her place of residential occupancy was lawful and in compliance with the terms of the Residential Tenancies Act 2004:  It is conceded that the Complainant is a Tenant and not a licensee. By virtue of paying rent and having exclusive control and possession of her room the Complainant is subject to a Tenancy agreement and not a license, meaning that she is protected and covered by the provisions of the Residential Tenancy Act 2004. However, a "Part 4" tenant under the Residential Tenancy Act 2004 does not apply to the Complainant. Section 25 of the Residential Tenancy Act 2004 indicates that: "This Part does not apply to a tenancy of a dwelling—if the entitlement of the tenant to occupy the dwelling is connected with his or her continuance in any office, appointment or employmentEven if the Complainant is subject to Part 4 Tenancy special grounds have been provided to the Complainant justifying the service of the notice to quit. The allegations by the Complainant that the Respondent has breached Part 5 of the Residential Tenancies Act 2004 is unfounded. The notice period provided by the Respondent runs from July 2021 up until March 2022. This is entirely lawful and within the 224 days of notice required to be given to a tenant living in accommodation for 8 years or more.

Furthermore, in circumstances where the onus of proof is on the Complainant, the Complainant has provided no evidence — by reasons of any order or Judgement by the Residential Tenancy Board — to show that the Respondent, in any facet, has acted in breach of the Residential Tenancies Act 2004. The Complainant cannot use the WRC to Rule on and ventilate issues of Tenancy that should be resolved by a Residential Tenancies Board. Section 80-81 of the Residential Tenancies Act 2004 provide that the Complainant is statute barred from pursuing a Residential tenancy dispute. Therefore, a dispute relating to the validity of a notice of termination which has been served in July 2021 cannot be ruled on or considered at a WRC adjudication in circumstances were any ruling on the validity of notice has been statute barred. The Complainant accepted by her own evidence through correspondence that the accommodation-needed renovation and was therefore dilapidated. It would have been irresponsible and negligent of the Respondent not to seek to the repair and maintain the accommodation. The Complainant's complaints in relation to the breach of notice are unfounded and do not meet the high standard required for constructive notice. Hence the Complainant's suggestion that the lawful requirement to leave her residential occupancy was behaviour so unreasonable as to amount to constructive dismissal is unfounded.

The Complainant alleged that requiring her to leave the residential occupancy amounts to a breach of a term of her employment contract and therefore resulted in constructive dismissal.

The breach of the Employment contract being alleged must be either a significant breach going to the root of the Employment contract or one which shows that the Respondent no longer intends to be bound by one or more of the essential terms of the Employment contract. The Employment contract and the tenancy agreement contract between the Complainant and the Respondent are completely separate. Section 3 of the Landlord and Tenant Amendment Act 1860 indicates that a

"contract of tenancy shall be deemed to be founded on the express or implied contract of the parties, and not upon tenure or service, and a reversion shall not be necessary to such relation, which shall be deemed to subsist in all cases in which there shall be an agreement by one party to hold land from or under another in consideration of any rent.

Therefore, a contract of tenancy is a separate mechanism to a contract of Employment. The only way the right to accommodation can be a term of a Contract of Employment is if there is an express term of a service occupancy agreement. A service occupancy agreement only occurs as a term in an Employment contract if there is the non-payment of rent and the necessity of the Complainant to live in occupancy at the place of employment in order for the Complainant to do their job, for example a school headmaster requirement to live at a boarding school. However, were as in the case of the Complainant, there is a rental condition to the residential occupancy it creates a separate contract by way of a periodic tenancy agreement formed under Section 3 Landlord and Tenant Amendment Act 1860.This means that the Complainant cannot claim her contract of employment was breached by reason of being served with a lawful notice to quit from her landlord as her accommodation was a completely separate contract from her Employment contract. To think otherwise would be conceptually incorrect and would mean that the Landlord would be unable to avail of the reliefs provided for Landlords by the Oireachtas under the Residential Tenancy Act 2004 that the landlord could not serve a notice to quit and the Complainant was entitled to stay at the property up until she was dismissed by the Respondent from her employment. Thereby preventing the Landlord from exercising their rights to terminate a tenancy under the Residential Tenancy Act 2004. This would be contrary to the Rule of Law and in breach of the constitutional imperative of the right to private property under Article 43.

The Respondent argued that the Service occupancy agreement cannot be considered an implied term of the Employment contract. No such implied term has never been recognized in this jurisdiction and if it was recognized it would amount to an impermissible acceptance of a Tenant exercising a right over private property above and beyond the right of a leaseholder — it would in effect give a tenant the same right as the holder of a fee simple in property. This would amount to an unconstitutional interference with the Respondent's right to Private Property

Examples of terms which have been implied in an Employment Contract are the maintenance of mutual trust and confidence by an Respondent, the provision of managerial support and security for an Complainant and of a safe place of work, the payment by an Respondent of the statutory wage for workers in the industry, non-competition on the part of an Complainant and the right to be treated with respect by an Respondent and not to have to endure physical violence and humiliation.

There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an Respondent for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too a Complainant should invoke the Respondent's grievance procedures in an effort to resolve their grievance. Hence where grievance procedures exist they should be followed. For example in Conway v Ulster Bank Ltd the EAT considered that the Complainant did not act reasonably in resigning without first having 'substantially utilised the grievance procedure to attempt to remedy her complaints '.

The case of the Complainant ought to be dismissed for inadequate pursuit/non pursuit of the case by failing to provide a statement that adequately sets out legal points raised by the Complainant and/or failing to indicate the number of witnesses required in the case.

The Complainant alleged that the terms of the contract of employment provide the terms that indicate accommodation was a term of the contract of Employment. The Complainant has not provided this contract of employment nor even indicated if this term is an express or implied condition of the contract. This is a failure to adequately pursue her case in a way that is fair to the Respondent.

1t was denied that the stress caused to the Complainant arose due to working conditions. In the alternative, if such stress is founded by the Adjudicator, then the Respondent denies that the stress was not addressed by the Respondent and that such stress necessitated the Complainant leaving the Employment. Moreover at no juncture was the grievance procedure invoked to address alleged workplace stress.

The WRC Director General has already ruled on this matter being out of time, the matter cannot be once again adjudicated on and is subject to the rule Res judicata.1n the alternative the Respondent denied that the Employment Contract contains a specific occupation clause and therefore no such right was required to be incorporated in the new undertaking.

Section (1b)  of the Unfair Dismissals Act 1977 states “the termination by the Complainant of his contract of employment with his Respondent, whether prior notice of the termination was or was not given to the Respondent, in circumstances in which, because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for the Complainant, to terminate the contract of employment without giving prior notice of the termination to the Respondent”.

The Respondent raised a preliminary issue of a decision already having been issued by the Director General in this complaint. The Complainant terminated her employment on 3/4/2022 and submitted her complaint to the WRC on 1/7/2022 (within the statutory timeframe allowed).  The Respondent is referring to a letter from the WRC to the Complainant on 24/8/2022. This was a letter seeking clarification of issues due to an incomplete form being submitted by the Complainant and was not a decision by the Director General, or anyone acting on his behalf, on the complaint. I am satisfied no prior decision has been issued on the complaint and it is properly before me.

The Complainant gave evidence about her initially coming to Ireland and the promise of a job, a visa and accommodation, her rate of pay and rent, her contract, her housing situation, her efforts to resolve the grievance, the lack of suitable accommodation near the Nursing home and her situation since leaving the employment. She advised she paid no rent initially, then a rent of 108 Euros was implemented by the prior Employer and this was increased to 216 Euros per fortnight in 2008 and she was told this was to do with insurance. She advised Nursesoncall told her she would reside at the Respondents premises. She advised she applied for a job with the same company elsewhere and was told the rate was 19 Euros per hour. She advised she asked the Respondent for a reference letter but was refused one. She advised she looked for other jobs but did not have a car and was doing driving lessons at the moment.

The HR Manager for the Respondent. Mr. Duffy Emmet, advised in evidence that the offer of accommodation was only relevant to the original offer made by Nursesoncall, a third party contractor. He questioned the Complainant about when she got married and did she move out of the Nursing Home and the Complainant advised she still worked and stayed there 4 or 5 nights a week but had since separated. He queried the Complainant about her efforts to find employment and the Complainant advised she cannot work full time. The complainant stated she eventually found accommodation 50 miles away. On questioning the Complainants medical situation the Complainant advised she was in St. Vincents hospital the day before the Hearing due to a flare up and is to see a Specialist.  He advised one other affected employee has stayed with the Company and therefore it was not an significant breach. He advised the 17 cases he presented form a very high bar for the essential use of the grievance procedure. He advised there was no evidence of stress and there were no reasons why the Complainant should not be working again in the current employment market for her role.

The Payroll Manager, Ms. Catherine Batt, who hd just retired, gave evidence the Respondent would be more than happy to take back the Complainant. She advised she ran payroll for 15 years and was responsible for the deduction of rent. She advised there was a constant movement of people and advised people would leave if they found more suitable accommodation or if partners arrived. She confirmed rent was deducted 4 weeks in arrears from the Complainant. She advised all other affected staff found alternative accommodation during the renovation. She advised one staff member affected is still employed. She advised all Heath Care assistants were on the same rate of pay except those with supervisory roles which get paid an extra 1.50 Euros per hour. She confirmed she was aware of the notice letters issued. She was cross examined on adverts the Complainant stated related to the Nursing Home advertising jobs at 19 to 21 Euros per hour and Ms. Batt stated she saw all salaries and the Respondent did not employ people at those rates. She was asked who put the adverts out and she believed it might be the HR Dept.

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the Complainant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the Adjudicator must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract “if the Respondent is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the Respondent no longer intends to be bound by one or more of the essential terms of the contract, then the Complainant is entitled to treat himself as discharged from any further performance”. If the Adjudicator is not satisfied that the “contract” test has been proven, then it is obliged to consider the “reasonableness” test.  “The Respondent conducts himself or his affairs so unreasonably that the Complainant cannot fairly be expected to put up with it any longer, then the Complainant is justified in leaving”. When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the Complainant to terminate her contract of employment.  It is important in a constructive dismissal claim that the Complainant satisfy the test set out by Lord Denning in Western Excavation (E.C.C) Ltd the Complainant, must also normally show that she exhausted the internal grievance process prior to lodging her claim with any external body. In that regard the case of Conway V Ulster Bank Limited UD 474/1981 is relevant where the EAT stated:- “In writing the letter of resignation, the appellant did not take the steps outlined in the grievance procedure. The Tribunal has long considered that such agreements, usually described as Union Management agreements, are binding on the parties because they chose to be bound by them”.

The Complainant argued that it is not a mandatory requirement to exhaust the internal grievance process prior to commencing proceedings externally and the grievance procedure was not clear. It is well established in law that the general rule is that a Complainant must exhaust the internal process prior to lodging a claim with any external body. On occasion, and in very limited circumstances, when a Complainant can prove, by the production of evidence, that the invoking of a grievance process would be a fruitless exercise the general rule can be displaced. The grievance process was set out in the Complainants Contract of Employment (Clause 13) and I deal with this matter below.

During the hearing of this complaint it was clear that these were the main issues:

The provision of the rented accommodation was contained in the initial contract with the recruiting agency but not a term of the contract of employment with the past or current Respondent

No written contract existed for the rental or tenancy accommodation

That the Complainant lived at the premises for nearly 20 years. The rent remained stable for most of these years.

She earned 622  Euros per week on average and paid rent of 216 Euros every two weeks

The Complainant could not drive and bus routes were not readily available for night work

That the Complainant made efforts (with minimal assistance from the Respondent) to find alternative accommodation but none was available near her place of work and any that were available were vastly more expensive than the rent she was paying to the Respondent.

The Respondents main argument was the Complainant was a tenant and therefore subject to the rules of tenancy. The Complainants main argument was the accommodation had become and implied term of her contract of employment and her Respondent acted unreasonably by terminating her employment albeit temporarily.  The question of whether the rental accommodation was an implied term in the contract can be viewed from two perspectives. Firstly, the accommodation use issue is not contained in the contract of employment and therefore one could see merit in the case it is not a term of the employment relationship. However, no written tenancy or rental agreement was prepared at any time by the previous Respondent and in effect the company who bought that business, the Respondent. It would be highly unusual to rent an accommodation without a written agreement for 20 years. The rent paid was very low in the current market and has to be viewed as subsided rent. Also, the link between the employment contract and the rent is helped by the fact the rent was deducted from the weekly wages of the Complainant. However, the law on implied terms is complicated and never straightforward but were I to decide on it, I certainly would be leaning towards the Complainants arguments being persuasive. In conclusion,  the Adjudicator finds that the ‘contract’ test “if the Respondent is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the Respondent no longer intends to be bound by one or more of the essential terms of the contract, then the Complainant is entitled to treat himself as discharged from any further performance” has not been completely satisfied by the Complainant despite obvious merits in the claim the accommodation was an implied term of the contract of employment.

I find that it is not on the contract (implied term) test that this complaint stands or falls. It is the Reasonableness test that the Adjudicator has decided is the most appropriate test to consider on the claim.  The questions regarding tenancy law raised by the Respondent are not core to the Reasonableness test, especially in the absence of any written tenancy/rental agreement. The ‘reasonableness’ test is “The Respondent conducts himself or his affairs so unreasonably that the Complainant cannot fairly be expected to put up with it any longer, then the Complainant is justified in leaving”. 

With regard to the reasonableness test the decision of the Supreme Court in Berber v Dunnes Stores[1], which incorporated the views of Lord Denning in Western Excavating (ECC) Limited v Sharp[2].  Considering the common law breach of contract of repudiation, Mr Justice Finnegan held that,  “In determining whether there has been a breach of the implied term of mutual trust and confidence in employment contracts:

1  The test is objective.

2  The test requires that the conduct of both the Respondent and the employee be considered.

3  The conduct of the parties as a whole and the cumulative effect must be looked at.

4  The conduct of the Respondent 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.”

The Adjudicator finds that it was unreasonable for the Respondent to not give much more consideration to the following prior to notifying the Complainant to leave the accommodation  provided at the premises of her employment;

the 20 years of unblemished service of the Complainant;

that the Complainant was originally a foreign national brought to Ireland for to work for the prior company and that accommodation had been a key part of that agreement;

that no written accommodation rental agreement existed between the parties;

that the majority of the renovation work was to the main building;

the effect of moving the Complainant out of the accommodation she had lived in for nearly 20 years:

that her income could not afford to rent another property nearby (even if one was available);

the fact the Complainant could not drive and bus routes were not readily available for night shift duty;

 the difficulty of a finding a short term rental and

that the Complainant had no means of getting to and from work from a place much further away (if she could have found one) for mainly night duty. 

The Adjudicator finds based on the above that “The Respondent has conducted himself or his affairs so unreasonably that the Complainant cannot fairly be expected to put up with it any longer, then the Complainant is justified in leaving”.

 I am satisfied that the Complainant made several attempts to have her situation (grievance) heard but with little understanding of the implications of the Respondents actions for the Complainant. Most notably on January 24th 2021 the Complainant specifically notified the Respondent of her grievance concerning the removal of the accommodation, among many other issues and no resolution was found. The Complainant even set out various methods of resolving the dispute.  I am satisfied that the Complainant made many and reasonable efforts to have her grievance processed but it was not resolved internally and she made attempts to engage with a number of management staff on the issue to no avail. In addition to this assessment the Labour Court in Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132 noted that failure to invoke an internal grievance procedure will not be detrimental to establishing reasonableness. This was recently reiterated by the Adjudication Officer in Brian Griffin v Sage ADJ-00034467 who noted “The court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal.”

The Complainant earned an average of 622.44 Euros per week. The Complainant was not working at the time of the Hearing and only had a few small periods of employment as an extra in films and her income amounted to 1916 Euros (Gross) and 1198 Euros (net) from those employments. The Complainant was still unemployed at the time of the Hearing. I note the Complainant has not received a reference from the Respondent at the time of the Hearing and this maybe/is contributing to her lack of employment in a sector where references are critical. The Complainant gave little evidence of efforts to find alternative employment in a similar capacity and relied on her medical condition as one that would not allow her return to work in a similar capacity. The Complainant submitted a number of photographs as evidence of her anxiety and stress on her face and while it is not my role to evaluate if this was caused by the issues relating to her having to leave her employment they could be contributing to her not gaining new employment.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. The Complaint under Regulation 10 of the European Communities (Protection of Complainants on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003 is well founded. Given the issue was uncontested I do not feel any award of compensation is appropriate. (CA-00051512-001)

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I find the Complainant’s claim pursuant to the Unfair Dismissal Acts, 1977 to 2007 is well founded and she was unfairly dismissed. The Complainant earned 622.44 Euros per week and was basically unemployed for a year earning just 1916 Euros in that period. Her loss therefore is 32,367 Euros todate (approximately) for the period from termination of her employment to the date of the Hearing.  The maximum award under the Unfair Dismissals Act for unfair dismissal is two years pay. While I sympathise with the Complainants medical condition it would be inappropriate of me not to take into account her lack of efforts to mitigate her loss. The Complainant submitted two medical certificates to do with her face rash. One for a date in December 2021 and one for a week in April 2022, both periods during the notice to quit the accommodation but not post the termination of employment. These certificates do not show a continuous period of certified illness restricting the Complainant from working. The maximum award possible in this case is 64,734 Euros. I deem that a reduction of 50% of the compensation is appropriate in the circumstances due to the Complainants lack of evidence to show she is medically unfit for work and her lack of effort to seek new employment. I award the Complainant 32,367 Euros compensation for the breach of her employment rights.    (CA-00051512-002)

Unfair Dismissal