Complainant

Respondent

Parties

Ciaran  Carey

Profile Developments Unlimited Company

Complainant

Respondent

Anonymised Parties

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Representatives

Brian Sugrue BL instructed by Cashell Solicitors

Sarah Daly BL instructed by Sweeney McGann Solicitors

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-00066896-001

23/10/2024

It was the Complainant’s complaint that he was constructively dismissed by the Respondent.

No evidence was adduced by either the Complainant or Respondent and therefore, no oath was sworn by the witnesses. 

This complaint was heard together with ADJ-00052969.

Application for a Postponement

At the outset of the hearing, the Complainant made an application for a postponement on the grounds that he had made a complaint to An Garda Síochána regarding an incident in the workplace on 2 August 2024.

It was his submission that he would be prejudiced should criminal proceedings arise, given that there was an open investigation which had been assigned a PULSE number. He argued that the investigation might result in a file being sent to the DPP. In such circumstances, where the Workplace Relations Commission decision would involve findings of fact, there would be a real risk of prejudice if the accounts did not "tally."

The Complainant submitted that enquiries had been made with the Gardaí, but there had been no progress on the file.

He further argued that a decision from the Workplace Relations Commission would constitute an unreasonable interference with any potential criminal proceedings and could jeopardise those proceedings.

In conclusion, it was submitted that it would be "unsafe" for the hearing to proceed.

Substantive Matter

After a break in the hearing, the Complainant submitted that he was not willing to give evidence nor was he withdrawing his complaint.

Response to the Application for a Postponement

The Respondent relied on the High Court Judgment in Electricity Supply Board v Sharkey [2024]  IEHC 65, Mulcahy J relied on Wicklow County Council v O’Reilly [2006] 3 IR 623, wherein Clarke J held:-

“It would, therefore, appear that there is no hard and fast rule as to how contemporaneous civil and criminal proceedings arising out of the same matter should be progressed. It is clear that the onus rests upon the party seeking a stay of the civil proceedings to establish the grounds necessary to enable the court so to do. In coming to any such assessment the court must, on the one hand, give due recognition to the importance of allowing the plaintiff or other moving party in the civil proceedings to achieve a timely resolution of those proceedings and obtain the benefit of any orders which might be appropriate. On the other hand the court has to balance, as against that, the extent to which there may be a real risk that prejudice might be caused to the criminal proceedings. I am satisfied that in giving consideration to this latter matter the court must attempt to analyse the likelihood of there being any such prejudice and have regard to the extent to which it may be possible by measures to be adopted in the criminal process to minimise or ameliorate any such prejudice as might arise.”

The Respondent submitted that the Workplace Relations Commission should apply a balancing exercise, as there was no automatic prejudice. It was argued that there was no prejudice to the Complainant, who is the individual making the complaint to the Gardaí, as he is not the accused in a criminal complaint. While the employee who was the subject of the complaint might be able to argue that he was prejudiced, he is anxious to have this hearing proceed, as is the Respondent, in order to bring closure to the matter.

It was further submitted that the Respondent’s witnesses, including the accused, were willing to give evidence. Consequently, there was no issue from the Respondent’s perspective regarding self-incrimination.

The Respondent also argued that there had been no internal investigation, as the Complainant had not advanced a complaint to the Respondent despite engaging a third-party investigator.

In conclusion, the Respondent submitted that the test was whether proceeding would prejudice any criminal proceedings—of which there were none in existence—and not to provide the Complainant with better evidence to support his complaint before the Workplace Relations Commission.

Substantive Matter

After having the opportunity to take instructions, the Respondent submitted that in a constructive dismissal complaint, the onus of proof lies with the Complainant. Where no evidence had been adduced, there was no requirement for the Respondent to give evidence, and the only finding available was that the complaint was not well-founded.

Application for a Postponement

Both parties were given the opportunity to present their arguments regarding the Complainant’s application for a postponement due to the existence of an open investigation by An Garda Síochána. In addition, time was allowed for them to take instructions from their respective clients.

The application for a postponement was refused for the following reasons. The Complainant in this case is not the accused in the criminal complaint. While the High Court judgment in Electricity Supply Board v Sharkey [2024] IEHC 65 is helpful, it can be distinguished from this case on the fundamental fact that the Complainant is the accuser and not the accused. Consequently, the right to silence simply does not apply. The Complainant did not rely on any case law in support of the application.

The submission that the Complainant would be prejudiced if a decision were issued is not accepted. He has already made a statement to the Gardaí; his right to silence is not applicable in these circumstances, nor is there any reason why his evidence, or anyone else’s evidence under oath, should not “tally” in the event of criminal proceedings. There is no evidence that a file will be sent to the DPP and/or that a direction to prosecute will be issued. Therefore, the delay in hearing complaints before the Workplace Relations Commission may amount to several years. Delay was one of the key considerations of Clarke J in Wicklow County Council v O’Reilly [2006] 3 IR 623.

The onus of proof lies with the Complainant in a complaint for constructive dismissal and therefore, jurisdiction is limited to the Unfair Dismissals Act 1977.

The Complainant did not provide any written statement, supporting documentation, or submission in advance of the hearing, nor did the Complaint Form contain any details regarding the reasons for his complaint for constructive dismissal. There was no engagement with the Workplace Relations Commission by the Complainant after the Complaint Form was submitted, with the first indication of an application for a postponement arising at the opening of the hearing. While this is of itself not a reason to refuse a postponement, it has been taken into consideration in the overall context of the application where the Complainant did not seek to engage with his complaints constructively and reasonably before the Workplace Relations Commission. 

Substantive Matter

Section 1 of the Unfair Dismissals Act 1977 defines constructive dismissal as:-

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

(b) 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”

The onus of proof to establish the complaint of constructive dismissal rests on the Complainant.

In the absence of any evidence from the Complainant, the only option is to find the Complainant was not unfairly dismissed from his employment with the Respondent.

I find the Complainant was not unfairly dismissed from his employment with the Respondent.

Application for Postponement – Dismissal