Complainant

Respondent

Parties

William  Gillman

Iarnród ÉIreann

Representatives

Kieran McCarthy , Solicitor

 John Brosnan, Industrial Relations Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00048114-001

12/01/2022

On January 12, 2022, the Complainant, a Senior Depot Person, through his Solicitor, submitted a complaint of constructive dismissal against the Respondent. The Complainants Solicitor followed up with a comprehensive written submission which outlined expanded on the claim for constructive dismissal.

On 30 September 2022, the Respondent Representative came on notice to the case. The Respondent operates a transport rail network on behalf of the State. This was followed by the submission of an outline statement on 12 October 2022. The Respondent has denied that the circumstances of the complainant leaving his job amount to a constructive dismissal.

Both parties came to hearing on 24 October 2022.

At the conclusion of the hearing, I requested a copy of the company grievance procedure from the respondent, which was received and exchanged with the complainant side. I also requested a copy of a specific Labour Court recommendation and a request for internal safety from the complainant.

I am grateful to both parties for their prompt submission.

The Complainant commenced work with the Respondent on November 1,1999 and remained until 20 August 2021. His gross pay, as Senior Depot Person, was €974.11 per week in respect of a 48-hr week. The complainant found new work on 23 August 2021 with a reported differential loss of earnings of €13, 153.72 per annum.

The written complaint before the WRC can be summarised as following. The Complainant was participant in a disciplinary matter, following a Category B and Category D safety breaches   in 2014 which resulted in a sizeable change in his role. He wrote that he had experienced demotion from Signal man to Senior Depot Person, transfer, and a removal from the operation of safety critical tasks.

He appealed the sanction, which was upheld in 2016, with the exception of “the permanent removal of safety critical duties “He served two further years in probation after which he understood that his access to safety critical duties would be restored. The Complainant also understood that this would open up his opportunities for career progression.

“As such, it was determined than arrangement would be put in place to restore the complainants’ competencies and certifications necessary so that he could again undertake safety critical duties and, on foot of this, have the potential to be promoted again to signal person “

The Complainant did not secure his planned advancement and was very disappointed. In December 2017, he wrote to Mr B, Train Control Manager, who informed him that a minimum of two-year period had to pass before he could be restored. The Complainant accepted this and understood that he would access the safety critical duties “in due course”, which was the wording reflected in Recommendation no 3 of the Chairman Report at the Disciplinary Appeal Tribunal.

The Complainant applied for opportunities to advance his career from the “menial and basic tasks “but was unsuccessful. The Complainant was very dissatisfied at the lack of a facilitative framework in which to restore the complainant to safety critical duties.

The Complainant was at a loss on how to proceed as he understood that his future was protected via a Labour Court Recommendation, and he was stuck without the Respondent allowing him to restore access to safety critical duties, which would in turn improve his chances in his ongoing applications for career enhancement.   

The Complainant tried to make things work, and “exhausted all available options for him “but ultimately resigned in pursuance of opportunities denied at the business.

The Complainants Solicitor sought the application of Section 1(b) of the Unfair Dismissals Act 1977. He opened the cases of Western Excavating (ECC) ltd v Sharp, 1978, ER713 and in the Irish jurisprudence Berber v Dunnes Stores [2009] IESC, 10, where he argued that the behaviour of the respondent had to be analysed for reasonableness and the effect of the employee must be judged objectively, reasonably, and sensibly to ascertain whether an employee cannot be expected to put up with it.

He also relied on Murray v Rockabill Shellfish ltd UD 1832/2021 on Entitlement and Reasonableness

The Complainants representative contended that the Respondent had failed to comply with the Disciplinary Appeal Tribunals rulings to build a platform to allow the complainant to regain his competencies. This obstructed the complainants career progression and humiliated the complainant in his demoted position.

He was compelled to hand in his notice in August 2021, which was accepted.

Evidence of the Complainant, by oath

The Complainant outlined details of a service incident on the line in 2014, while he was working as a Signal Man. There had been a bad storm. A train traversed a level crossing, while the barrier was up.

 Nobody was hurt, but the incident became an event of immediate operational concern to the Respondent. It transpired at investigation that the complainant had overlooked one phone call, but he continued in his role. A later investigation revealed that he had omitted safety checks in the course of his duties.

 A Disciplinary process followed, and he was suspended for two years with a reduction in premium earnings. He transferred from Station work to more menial work in September 2016. The Complainant confirmed that “his own job was gone “

However, he submitted that he retained an expectation that he would return to station work incorporating the safety critical features of work.

He firmly believed that the “in due course “recorded in the appeal outcome would be actioned.

His relocation took him from the Railway Infrastructure area to the Railway base.

The Complainant submitted that he subsequently applied for a Railway Signal Person role and did not receive a response to his application. He queried this with a Senior Manager, who informed him that he was bound by the two-year exclusion period.

The Complainant submitted that he appealed to the Labour Court, where he understood he had been assured by a named IR Manager that “you will be back in 2 years “This fuelled his expectation for his right of return.

Labour Court Recommendation was dated December 2016 and exhibited post hearing.

In 2018, he attended an interviewed for Signal Post position, but did not receive communication of outcome.

His station-based job was a dreadful job, his revised position began to have implications for his mental health, hobbies, and past times. In his signal post, he carried autonomy and flexibility in rostering to suit his home life. This had been replaced by a 6 am -3pm shift, returning at 11pm.

This caused his wife to have to take extra work.

The Complainant decided to relaunch his career through education. He applied for the Glasgow Scholarship in 2018 and made the final 25 for 20 places. He received feedback from the Head of Talent. He addressed his concern on why he had failed to progress and was informed that his being “barred from safety critical work “was the reason.

He began to form a suspicion that he was being “blackballed “by the company.

He stated that he was unsettled in how an external head of talent had access to privileged information on his role? He approached Mr C, a local Manager and posed that question, who told him he had no idea. The Complainant found Mr C to be encouraging of him and assured him that “he would sign whatever you put in front of me “this referred to applications for professional advancement.

He applied for a second relief service position, was unsuccessful but did not receive a response to his request for feedback.

In 2019, he attended a competition for a Train Driver, where he was met by a probing question from Interviewers known to him.

 “Whether he had ever failed to undertake safety checks? “

He confirmed he had done this and had been “sacked “

He formed a view that elevation back to the service “was never going to happen”.

He applied for a second train driving position in 2019, this time, he was ruled out at the short-listing stage, no reasons given.

He attended third level education in 2019 and became Chairman of his local Union.

He applied for a Staff Officer position in Waterford. On 9 March 2021, he was informed that he had not been successful but was advised to watch out for opportunities in Summer 2021 in a particular Campus.

The Complainant submitted that he undertook a Career Development Programme, and it was during one of these breakout sessions that an External Trainer recommended that he leave the employment and consider alternative work.

He reflected on this advice, weighed up the pros and cons of a job offer he had been made. He resigned and began new work in August 2021. The Complainant described that he had been looking to relaunch his career with the respondent as “I didn’t look for roles, but experience”.

He communicated his intention to leave by letter on August 2, 2021, and he was approached as to whether he had found new work.? He told the Station Master that he had been offered an interesting job/ career. The Station Master admired his initiative in leaving but offered him a career break, which the complainant did not find useful.

When queried as to his reason for leaving, the complainant responded that “there wasn’t a reason”?

This approach was repeated by the company, where the complainant was asked whether he had a plan. A named Administrator told him that the respondent could not mirror the offer he had. He confirmed that he had not considered the offer of a career break, as “he did not have a career “and was required to care for his family member.

During re-direct, the complainant confirmed that he had not been approached to commence safety critical training in the two-year interlude. He explained that he could not see a future with the respondent.

During cross examination and in answer to Mr Brosnan’s questions, the complainant confirmed that he had not raised a grievance in relation to his pursuance of the Signal man’s role. He had raised a grievance regarding a collective 24 hr roster issue.

He accepted that he was an active member of his Union up to the time of his resignation. He accepted that educational supports had been offered to him.

The Complainant clarified that he felt “stuck” and had asked for an opportunity to progress in his career.

The Complainant clarified that he had not participated in a performance appraisal process.

He outlined the differential in the shifts he worked compared to the Signal Man roster. He was unsure when the Labour Court process occurred but was clear that he believed that he had no other recourse outside of resignation.

The Complainants Solicitor, Mr Mc Carthy closed in reliance on Mc Grath Trinitech, when he submitted that the full matrix of the event must be considered.

He contended that the Company had ignored the “3rd point from the DAT “If applied, it may have saved this employment. The Company was not entitled to ignore the presence of this “institutional decision “.

Mr Mc Carthy registered his dissatisfaction that the Manager present at hearing, who was aware of the “3rd point decision “had not given evidence. He was unable to cross examine him on this point.

He concluded that the complainant was actively engaged in seeking a return to more meaningful work but was not heard.

He did not accept that the complainant was thwarted by the lack of a grievance and submitted that this point was overstated. The Complainant was not prevented from returning to safety critical work, he was not enabled by the respondent in doing so.

He rejected out of hand that the Company had not placed them on notice that he was suffering.

He argued that trust had broken down in the people who should have known better.

Mr Mc Carthy sought redress of compensation.

The Respondent operates a national rail service and has disputed the claim for Constructive Dismissal.

It was common case that the Complainant commenced work on November 1, 1999 and concluded by resignation on 20 August 2021.

Mr Brosnan for the Respondent outlined the background to the complainant commencing in his present role of Station Operative for the purposes of this case on 26 September 2016. The role incorporated a Station base inclusive of cleaning, crowd control and ticket checking.

Mr Brosnan outlined that the Complainant had been involved in an operational incident in 2014, from which Disciplinary action followed.

The Disciplinary sanction rested on three sanctions:

1 reduction in grade

2 Transfer to Cork Station (this involved a redeployment from a separate division)

3 Removal from performing certain safety critical tasks and identified roles.

The Disciplinary Appeal Tribunal presided over by an Independent Chair (a copy was exhibited at hearing) made a Chairmans Ruling “in the absence of consensus “.

The totality of the irregularities exercised by the Appellant on the day in question justifies elements 1 and 2 of the sanctions imposed and accordingly these sanctions are upheld.

However, in one’s view, the effect of element 3 could be such as to stunt the future progress of Mr Gillman. In all the circumstances, this is considered to be unreasonable. It is determined, therefore, that arrangements be put in place in due course, aimed at restoring the competence, capacity, and certification necessary for him to undertake the Safety Critical duties from which he is debarred by element 3 of the sanction.

This objective was not underpinned by a dateline for completion.

Mr Brosnan submitted that the Respondent observed that the Complainant had diversified into the field of studying supervisory management from 2018. He was supported in this by the respondent.

The Respondent had not activated a plan reflective of the Independent Chairs findings and the Complainant had not approached the respondent seeking their manifestation.

The Complainant proceeded to undertake the ECDL and a degree in Human Resource Management. On leaving employment, the complainant honoured the terms of the education support programme, when he returned the €2,200 paid in fees. He also undertook on the job training courses in diversity and respect, personal track safety and behavioural safety.

 The Complainant applied for a train drivers position in 2019 and was unsuccessful. He also applied for a number of development opportunities, which were unsuccessful. He completed interview training in January 2021 and attended a three-day workshop on career development in April 2021.

Mr Brosnan outlined that the complainant had met with his District Manager in December 2019 to discuss his future direction. The Complainant had sought work experience in administration at the District Office which was not feasible due to service exigencies.

The Complainant followed this up in an email to the Station Master in January 2021, where he sought further administrative experience top complement his studies. This was not possible due to reduced staffing.

The Complainant resigned on August 2, 2021, and exited on 16 August 2021.

The Respondent has disputed the claim for constructive dismissal. The Complainant had fully acknowledged that he had been requested to declare “which developmental direction I wished to proceed in “by December 2019. He had declared his preferred pathway was Administrative and he had remained silent on the resurgence of safety critical duties.

In relying on Conway v Ulster Bank, the respondent submitted that the complainant had not raised a grievance prior to his departure.

He came to this case with a visible proficiency in trade unionism through his role as Branch secretary.

Mr Brosnan outlined that the complainant’s resignation had been met by an offer for him to consider a career break as an alternative, but the Complainant had advised “that the opportunity that came his way was too good to pass “

The Respondent accepted that the complainant did not wish to resile from his submitted resignation and understood that his resignation was prompted by a new career offer rather than “anything works related “

The Respondent understood that the complainant had chosen to leave on good terms and for a seamless transition to a higher paying position on 23 August 2021. He had not sustained financial loss arising from his termination.

Mr Brosnan submitted that the complainant had not been forced out and that his resignation was voluntary and not underpinned by an activation of a grievance. Opportunities existed for him to action both the grievance procedure and dignity at work policies, but both lay unused.

The Respondent acknowledged that they did not lead out on the next step of “in due course “clause in the Chairmans Report at DAT and sought to balance this against the career pathway pursued by the complainant towards human resource training and requests for administrative experience.

The Respondent explained that the referral to the Labour Court resulted from a Section 20(1) referral.

The Respondent did not put forward any witnesses at the case.

In conclusion, the respondent relied on the 2018 communication from the service leader on the state of play concerning the complainant. Mr |Brosnan acknowledged that the operational aspect of the business could have done better, however, the trade union, who received not the DAT and Labour Court Rec 21363 had not actioned a claim. The Complainant had not actioned a grievance and this omission was crucial in the complaint now seeking to prove a constructive dismissal.

I have been requested to come to a decision on whether the resignation recorded by the Complainant dated 2 August 2021 amounts to the circumstances of a constructive dismissal.

In reaching my decision, I have had regard for both parties written submissions and oral arguments. I have also reflected on the Complainants direct evidence and his responses during cross examination and cross examination.

The law on Constructive Dismissal is set down in Section 1(b) of the Unfair Dismissals Act, 1977 and it is also stated in a number of EAT and Labour Court Decisions in this country.

The Labour Court considered the Complainants submissions on the law in this area in an appeal decision in in Cope ltd T/A Cope Galway and Ms Leigh Bell.

The Complainant drew the Court’s attention to its decision in Paris Bakery Limited and Igor Mrzljak [DWT1468] wherein the Court noted with approval the description of Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as 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 discharged from any further performance”.

Where an employer commits a repudiatory breach of contract the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract.’

The Complainant also drew the Court’s attention to the passage in the same decision which stated:

• “Where the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving there and then.”

There is a long line of case law which reflects the tests applicable in a claim for constructive dismissal.

1 The Entitlement Test, Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332, Smith v RSA Insurance ltd UD 1673/2013

2 The Reasonableness Test Conway v Ulster Bank UD 474/1981, Kean v Western Health Board UD 940/1988 and Beatty v Bayside Supermarket ltd UD 142/1987

It has also been acknowledged that a Complainant faces a high bar in pursuing such claims. Nicola Coffey v Connect Family Resource Centre UD 1126/2014

However, I must introduce my findings as independent and particular to the facts of this unique case.

I found it regrettable that the Respondent Manager present at hearing was not called on to give evidence. The Complainant representative, Mr Mc Carthy was particularly aggrieved by this occurrence. I did not hear an application to compel attendance on this occasion, however, it is something that I would like the Respondents to reflect on in the event of a re-appearance before the WRC. I say this in light of the seminal decision in Zalewski v WRC at the Supreme Court in April 2021 and the resultant Legislative changes which have arisen since.

Mr Mc Carthy has submitted that the Respondent behaviour directed towards the complainant went to completely undermine any modicum of trust and confidence expected to exist for both parties in an employment relationship to the point where resignation was of an involuntary nature and reasonable in response action.

Mr Brosnan for the Respondent presented a much-altered position when he recounted that the resignation received from the complainant was a good news story and one which opened a career enhancing opportunity for him. He emphasised that his view on this was strengthened when the company suggestion of an application for a career break to replace the resignation was rejected by the complainant.

For my part, it is necessary to go back in time in this case to obtain a basis for my analysis in this case.

I have no judgement to cast on what happened for the Complainant in his role as Signal Man in 2013/2014. I accept that the Company adopted at a twostep management of this process. The first step allowed the complainant to remain at work. However, the second step was career changing for the complainant as he became the subject of a 3-item disciplinary sanction on 19 January 2016. This sanction was appealed by the Union on the complainant’s behalf across a two-day hearing May and June 2016, copy provided.

This Appeal concluded that the disciplinary process had been conducted fairly, but the duration was a concern for the tri partite group.

The outcome modified the contents of element 3 of the sanction in the complainant’s favour.

That was the removal from carrying out the following safety critical duties, signal man, pilot man, emergency points operator, emergency barrier operator.

Was modified by the following phrase:

In all of the circumstances, this (element 3) is considered to be unreasonable. It is determined, therefore, that arrangements be put in place in due course, aimed at restoring the competence, capacity and certification necessary for him to undertake safety critical duties from which he is debarred by element 3 of the sanction (dated 23 July 2016)

The NRBU, the Union representing the Complainant at that time made a section 20(1) appeal to the Labour Court under the IR Act, the outcome of which in IR terms binds the worker.

On that occasion, in December 2016, the Union sought re-instatement of the complainant to his position in addition to loss of earnings. The Court determined that no exceptional circumstances prevailed and “the outcome of the internal disciplinary tribunal is final “

I listened carefully as the complainant told me that he took hope from utterances made inside session by a respondent manager, not present at the instant hearing.

This did not, in my opinion constitute the basis for formation of a legitimate expectation of an automatic return to the position of signal man, as the complainant said at hearing that he accepted that his “job was gone “Instead, this amounts to a dialogue in an informal setting and should not have been relied   on.

Instead, the parties entered the year of 2017 with a modified disciplinary sanction, the ownership and navigation of which goes to the root of this case.

The situation became complicated as the complainant returned to work in September 2016 in a different and separate division to the division he left.

 I learned at hearing, he had hopes and desires to return to the first sector. I established that his transfer was not accompanied by the emboldened modified disciplinary sanction or indeed any instructions for his future management. I have concluded that that was a serious error by the Respondent as both divisions appear from my inquiry to be totally separate. I find that the complainant got lost in the inter sector transfer on foot of a disjointed, inadequate and careless floor plan for implementation of the “in due course “clause of the modified disciplinary sanction.

I heard from the Complainant that he had expected a Union pursuance of a time frame for this restoration, but none appeared. In his evidence, the complainant set a lot of stores by the Labour Court Rec. I am not certain that he understood that it did not alter the DAT outcome.

I found the complainant had a poor recollection of the sequential datelines in this case. He was unclear on how the companies’ procedures ran. He was unable to answer me when I asked whether his approach to activation of a grievance as in the roster issue was consistent with his approach taken to feeling “stuck” at the company? He merely remarked that the roster issue was a collective issue.

I have spent a lot of time reviewing the experience of the complainant in the workplace from 2016 onwards. I could identify where the complainant identified his desire to diversify into administration in 2017. I could see that the complainant took his career very seriously and invested to his acknowledged skill set. However, it is clear to me that he has not accepted the sanction of 2016 as he made repeated submissions and look backs on this to higher managers during this period September 2016 to January 2021.

I did not meet the Train control Manager, but his rider to the email dated 17 January 2018 is significant in the case.

“…. However, the determination of the DAT Chairman also allowed for a restoration of your competence for safety critical duties in due course. It will therefore allow for your future career progression and the opportunity for you to carry out safety critical duties in the future. “

It is an undisputed fact in this case that neither the Complainant or the Respondent sought to interpret or incorporate “in due course “in an agreed action plan to manifest the findings of the DAT. This was not remedied by the separate and distinct management functions which existed between the sectors. I would have preferred to have seen a record of transfer which incorporated the imperative of the DAT findings.

I accept that the lions share of the responsibility for this omission rests with the respondent, however, the complainant could not demonstrate how he had sought to action this outside of job applications or inclusion on higher training programmes.

The Complainant gave evidence of a “long goodbye “in employment terms.  When unsuccessful for train  driving post/ relief signal man posts, he formed the view, influenced by Agents external to the company  that he was not wanted and secured the optimism he was  seeking through the pathway of education , which he seemed to me to enjoy greatly and which ultimately paved the way to his new role .He told the hearing that his two attempts to seek administrative experience were thwarted by the company and he believed this to be unjust .

I note that the complainant had moved to a sector where obligations for longer serving staff were mentioned, however, the complainant had sizeable service from 1999.

It is of note that the complainant accepted that he was active in the Union during this time also yet did not formalise his grievances. Instead, the complainant held a very strong and unvalidated view of the way things should turn out for him at this business, without seeking to test that theory through the grievance procedure. Mr McCarthy has argued that the complainant can be excused the imposition of a grievance in such a fault filled process. I disagree.

I had already expressed a firm criticism of the lack of continuity in the management of the DAT findings from July 2016. Somebody ought to have diaried July 2018 as a new start for the complainant. However, I can understand that the complainant had begun to view educational opportunities as his new start and directed his focus forwards rather than backwards to the DAT from that point.

I accept that he was unhappy with his demotion, loss of earnings, roster planning, autonomy and the basic role he was asked to do. I can also accept that he felt trapped and stuck in a career vortex. However, the steps that I would have much preferred to see was an adherence to the robust company grievance procedure, acknowledged by the Labour court as emerging from collective agreement.

The Complainant submitted that a tension arose for him from 2016 to August 2021, where he had habitually been denied opportunities. However, these were in the main “administrative career opportunities in either the District Office or within the Respondent business “rather than “safety critical “career opportunities. However, he lived with that tension and regret without channelling them through a procedure. I appreciate that he applied for operational roles and was unsuccessful.

In Western Excavating, Lord Denning pointed to a proximity between the sentinel event which prompted the decision to leave and the actual exit. For me, at least, the complainant carried the unease and unpalatable outcome of the Disciplinary process from 2016 onwards. It did not dissipate.

However, this did not prompt him to action the modified clause 3 of DAT through the formal channels. He changed direction within the company through education, and career development and succeeded in finding new work, which he commenced three days after the conclusion of his employment. I find that the complainant wanted a clean break when he left employment. He told the hearing there were no reasons for his leaving yet called his resignation involuntary.

I fully accept that the Respondent omitted to honour and action the terms of the DAT modified sanction. This sanction bound both parties to an action that neither actioned. I note the safety critical points on the handbook. This did not prevent a challenge to the respondent’s inertia.

Instead, the Complainant chose to manage his diminished career and earnings on the one hand and expanded opportunity on the other by relaunching through education and was aggrieved when both his pitches for inclusion in the administrative centre was not embraced.

I accept that the complainant genuinely believed that he was not wanted at the company, and he carried a high burden in thinking that his actions during the rail incident were overly harshly judged in the imposition of a Form D. However, for me, he has not proved that his termination was involuntary in nature. He found what he considered was work more suited to his skills and followed that aim. This does not elevate the facts to satisfy either of the tests outlined in the case.

While the respondent inertia in relation to clause 3 of DAT findings is a profound error and showed a disregard for the findings of the appointed DAT. This was not the reason for the complainant’s termination as he told the hearing that there was no reason.

He was not forced to resign, nor was there a trigger event immediately preceding the termination which compelled him to leave. I found that staff relations were cordial on his departure and his letter of resignation gave no clue of pressure or compulsion to leave.

Mr Mc Carthy has relied on Mc Grath and Trintech Technology ltd at the High Court [2004]IEHC 342 , However on a careful reading  of that case , it is not a comparable case as this was a case of breach  of contract, involving an offer of redundancy , which carried an award of damages reflecting “ stress “ and incorporating an earlier 2002 UK case of Sutherland -v- Hatton [2002] EWCA Civ 76 .

The Complainant has not relied on medical reports or evidence in this case. I have accepted that he was disappointed.

I find that the complainant left employment with an abundance of unspoken words which would have fitted  neatly into a carefully worded grievance .I found that he gave a lot of weighting to the expressed thoughts of external Agents and insufficient weighting to focussing on resolving his perceived career impasse .The facts are very similar to Conway , and distinguished from Rockabill .The latter case reflected an intolerable work environment and a respondent   obstructed grievance .

I find that he was offered an opportunity to resile from the resignation via a career break but refrained. I found that approach very measured and pro-active by the Respondent and a break away from the EAT case of Millett v Shinkwin.

I am also strengthened in my view that his efforts to secure an administrative work in Waterford were met with a nod to watch for opportunities in Cork. I inquired about that opportunity, but the complainant dismissed this .

Taking everything into consideration, I found an overly loose approach to the management of the modified disciplinary sanction by both parties. I found a positive record in the respondent’s investment in the complainants training and education needs from 2018. I found a genuine attempt by the complainant to relaunch into administration/ HR which was not immediately aided by the respondent. I found  a complainant , who identified his best course of action as a “ new start and clean break” from his employment . This was a voluntary  and courageous action .

However, through all this I found the disputes resolution mechanism in the form of the grievance procedure unused by the complainant. I cannot accept that he was excused from having to try this pathway as the climate of staff relations in Rockbill was not a foot.

I must conclude that the complainant cannot reach the acknowledged high bar on this occasion.

He was not constructively dismissed.

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 must conclude that the complainant cannot reach the acknowledged high bar on this occasion.

He was not constructively dismissed.

Claim for Constructive Dismissal