Complainant

Respondent

Anonymised Parties

A Childcare worker

A Creche

Representatives

Jadel Naidoo B.L instructed by Powderly Solicitors

Barry O Mahony B.L. instructed by  ARAG Legal Protection Limited

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-00051801-001

22/07/2022

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

CA-00051801-002

22/07/2022

The Complainant commenced employment with the Respondent on 19th of October 2020. The Complainant was employed as a childcare practitioner in the respondent creche working 25 hours a week over Monday to Friday. She worked from 1.30-6.30pm with the senior ‘after schoolers’.  The complainant’s son, B was also attending the respondent crèche where his mother, the complainant was employed in a different part of the creche.

The complainant resigned her employment by email dated 16th of June 2022 and has submitted a claim of constructive dismissal in this regard.   The complainant is claiming that she had no option but to resign her employment following events which took place on 29th of  March 2022 and 6th of April 2022 when her son ‘B’ escaped outside to the front of the building without staff realising.   

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

CA-00051801-001

22/07/2022

It is submitted that the complainant was employed by the respondent as a childcare practitioner from 19th of October 2020. She was subject to a 6-month probationary period.

Her son, B was also attending the crèche the complainant worked at.   Her written contract of employment is dated 30th September 2020.   Her normal hours of work were 25 hours a week worked over Monday to Friday. She worked from 1.30-6.30pm with the senior ‘after schoolers.

The complainant is seeking compensation for constructive dismissal.    The complainant submits that she was forced to resign arising out of two incidents that occurred whilst she was working.

1st Incident- On the 29th of March 2022 The complainant was working at the crèche. Her son was also in the crèche but in a separate room to the complainant B was in the ‘wobbler room’.

At approximately 3.30pm an afterschool teacher, Ms D, was saying goodbye to a child that was going home when she saw B, outside of the pre-school fire escape. Ms D immediately left the afterschool room and ran through the preschool room door. She then noticed that a gate and door had been left open, and that the door of the fire escape was also open. Ms D brought B back to his group in the baby garden. Ms D informed her supervisor of the incident, and it is submitted that she was never asked to complete an incident report.

At approximately 3.30pm the complainant was informed by her supervisor that her son had escaped out of the area he was meant to be in, but that he was ok. The complainant was in shock because approximately 40 minutes before this incident B had run up to where the complainant was working and had to be brought back to where he should have been.

At 6pm that evening the complainant’s area manager,  phoned the complainant to apologise for what had happened and told her that Ms W, the regional manager, wanted to meet with her the next day.    At approximately 3pm on March 30th, 2022, the complainant and B’s father, met with Ms W Regional manager and Mr M, the child protection officer.

According to the complainant, Ms W explained what she thought had happened: ‘B was in his playground with the gate locked so we think that he had opened the utility door, through the kitchen, through the hall, into the Montessori room and out the fire exit door where an afterschool teacher ran after him and brought him back.’

 The complainant stated that the fire exit doors had been kept open to allow the floors to dry after they had been mopped.   Ms W assured them that the floors would not be mopped in future until every child had left the building and a snap lock would be placed on each gate.

 The complainant then raised the issue of the staff to children ratio in the room her son had been in. The complainant said that she had been told that there had been 2 staff to 19 babies at the time of the incident, which is more than double the appropriate ratio. Ms W and Mr M stated that they could not discuss this as they needed further information but that another meeting was planned for ten days hence, to answer any further questions and update them on the extra measures taken.

2nd Incident - On the 6th of April 2022 the complainant dropped her son to the crèche at 1.15pm as she was due to begin work herself. At approximately 2.10pm the complainant saw her son outside the main door where the gate opens and closes.   The complainant saw her manager, Ms S run after him pick him up and bring him back inside. The complainant then asked a chef to cover her room and immediately went to find Ms S and find out what had happened. She went to B’s room and removed him.   Ms S was on the phone when the complainant reached her, and the complainant had difficulty catching her attention. As she ended her phone call the complainant told Ms S that she did not feel safe leaving her son in the care of the crèche as this was the second time in 8 days that her son had managed to escape out to the front of the building without staff realising.

The complainant later received a phone call from Regional manager Ms W expressing how sorry she was for what had happened. By email dated the 7th of April 2022 the complainant emailed the respondent. In her email the complainant requested the minutes of their last meeting, statements from colleagues regarding the last event, the risk assessment that was completed in respect of the last event, and information in relation to the measures that were introduced after the last event.

 The complainant also sought a meeting in relation to the 2nd incident on the 6th of April 2022.   She also expressed her concerns about the latest incident and the effect it had on her. She advised the crèche that she could not attend work until the matter was resolved, as she did not feel safe leaving her son in the crèche, and therefore she did not have anyone to mind her son if he were not in the crèche. She also sought clarification as to whether the first incident had been referred to TUSLA.

Ms W replied to the same day and advised that an investigation was underway and sought a meeting between the complainant, Ms W and Mr M  on the 11th of April 2022.

The complainant and B’s father, met with Ms. W, Mr. M and Ms J, who took the minutes of the meeting. Ms W and Mr M again apologised for what had happened. The complainant again asked for information about the first incident and to see the incident report for the 1st incident. She was told that no incident report had been completed. Mr M stated that the ratio of staff to children in the room at the time had been 2:8.    However, a statement from a teacher states that one staff member had stepped out for a break and therefore the ratio was not 2:8 as was claimed.

At the end of the meeting the complainant explained that the two incidents had emotionally affected her, and Ms W told her to take a paid week off to recover.   On the 12th of April 2022 the complainant reported both incidents to TUSLA. On the advice of the Citizen’s Information Centre, the complainant made a request for information pursuant to the Freedom of Information Act.

She emailed this request to the owners of the crèche.   Mr M replied and advised her that the crèche was not subject to the FOI legislation. By email dated 15th April 2022 the complainant made an application for personal data pursuant to the General Data Protection Regulation. The complainant also queried why her manager, Ms S, had informed staff that the complainant had made a report to TUSLA. This aspect of the complainant’s query was ignored.

By email dated 19th April 2022 Ms W emailed the complainant asking when she would be returning to work. The complainant replied and indicated that she was not fit to return and that she had uploaded a doctor’s certificate to that effect to the work app used in the crèche. The complainant also stated that her manager, Ms S, had breached the GDPR by disclosing her name as the person who had made a report to TUSLA.   A former colleague of the complainant who has since resigned from the respondent’s employment advised the complainant that both Ms J and Ms S had  told that colleague that the complainant had reported the matter to TUSLA.

 By email dated 3rd May 2022 the complainant contacted C & B, Management & Training Solutions Limited as she understood that they were conducting an investigation into the two incidents.  By email dated 6th May 2022 the complainant made a formal complaint to Ms RG and J H.

The complaint outlined the complainant’s dissatisfaction with the way in which the incidents had been handled and the fact that her requests for information had been ignored. The complainant requested an acknowledgment of receipt by the recipients by Monday, 9th of May 2022. No acknowledgment or reply was received by that date. She then forwarded the same complaint to Human Resources. After having forwarded the complaint to HR, she then received a reply on the 12th of May 2022 written by Mr M who replied on behalf of Ms G and Mr H.

 A colleague of the complainant’s has provided a statement to the complainant which states that both Ms J and Ms. S said to that colleague that the complainant had reported the matter to TUSLA. This colleague will be able to give oral evidence of what was said to her at the hearing of this matter. 20. By email dated 16th of June 2022 the complainant indicated that she was resigning. The email states that she was providing her one month’s notice as required and her last day of employment would be the 10th of July 2022. By email dated 21st of June 2022 S acknowledged receipt of the notice.

On the date of the first incident, the complainant raised her concerns with her immediate supervisor. She then spoke with the area manager that same evening. She attended a meeting with Ms W, the Regional manager, and Mr M, the Child Protection Officer, where the complainant again outlined her concerns arising out of the fact that her son had escaped from the room where he was supposed to be subject to supervision.

 In the immediate aftermath of the second incident the complainant told her manager, Ms S, that she did not feel safe leaving her son in the care of the crèche as this was the second time in 8 days that her son had managed to escape out to the front of the building without staff realising. The complainant later received a phone call from Ms W expressing how sorry she was for what had happened. By email dated the 7th of April 2022 the complainant emailed Ms W, Mr M  and Ms J. In her email the complainant requested the minutes of their last meeting, statements from colleagues regarding the last event, the risk assessment that was completed in respect of the last event, and information in relation to the measures that were introduced after the last event.

The complainant also sought a meeting in relation to the 2nd incident on the 6th of April 2022. She also expressed her concerns about the latest incident and the effect it had on her. The complainant did not receive any risk assessment, the minutes of the previous meeting, or details concerning the safety measures that had been introduced, save for the fact that the mopping would not be done during creche hours and locks would be used on the doors.

 The complainant then raised a formal complaint in writing, when she emailed the owners of the crèche. Receipt of this complaint was not even acknowledged by the owners. After forwarding the same complaint to HR, the complainant then received incident reports in respect of the two incidents. Both incident reports had been completed after the fact, and misspelled B’s name. The first incident report was completed by a person who was not present at the time of the incident.

The reply to the complainant’s formal complaint does not deny that the actions of the respondent were negligent, but states that a disciplinary investigation is being undertaken.  The complainant specifically stated in her complaint that she was ‘deeply dissatisfied with how these incidents have been handled for many reasons.

It is submitted that the only update given to the complainant as a parent was that extra snap locks had been added to the gates and alarms on the fire doors, that’s it.’ The reply states that this is not correct, but the disciplinary action and GDPR legislation would not allow the respondent to provide any further information.

 Ultimately, the respondent should have addressed the complainant’s concerns when her son first escaped from the play area, he was supposed to be in. To allow a child in a crèche to escape once may be seen as an unfortunate accident, but for the same child to escape twice in 8 days looks like carelessness. It the premises it is submitted that the complainant raised her grievance with the respondent in line with the respondent’s grievance procedures, and not having received a satisfactory response was entitled to resign her position on the grounds of constructive dismissal.

 In the alternative, even if the respondent were to argue that the complainant did not exhaust the grievance procedure, (which is denied) in Allen v Independent Newspapers (Ireland) Limited [2002] ELR 84, the Employment Appeals Tribunal held that it was reasonable on the facts of that case for the complainant not to have faith in the employer’s ability to properly or effectively address her grievances.

The same argument applies here where the complainant has sought clarification surrounding the incidents giving rise to this dispute, what steps the respondent proposed to take to ensure it did not happen again and did not receive adequate responses. Furthermore, the respondent’s crèche was investigated by TUSLA - the Child and Family Agency on the 14th of April 2022, 8 days after the second incident giving rise to this complaint.

At pages 7-8 of the Inspection Report states: ‘The minimum adult to child ratios were not maintained during the inspection as evidenced by the following observation: In Buttercup room at 11:06 there was one adult caring for 6 children aged 1 to 2 years. Two staff members were required to maintain correct adult to child ratio for this age range of children.’

In addition, the TUSLA Inspectors note that the respondent acknowledged that the first incident was not reported to TUSLA in a timely manner.  The significance of the report is that contrary to the claims of the respondent that the complainant’s concerns were being addressed, the respondent was still not providing adequate staff to children ratios in the crèche. It is submitted that one of the main reasons for these incidents was a lack of supervision by staff of the respondent.

The failings highlighted in the report provide further support for the complainant’s decision to resign.   In a constructive dismissal, the obligation is on the complainant to establish facts to prove that the actions of the employer were such as to justify her terminating her employment.

 This means that the issue for consideration is whether the complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Acts. 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.  Hepple (Hepple & O'Higgins; Employment Law, 4th edn London Sweet & Maxwell, 1981), [291]) states ‘it is incumbent upon an employer and an employee to facilitate performance of their mutual obligations under the contract … which takes effect as an implied term in the contract’. In Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23 the House of Lords heard a case taken by two employees who had been employed by the Bank of Credit and Commerce International SA which collapsed in the summer of 1991.

The Law Lords ruled that the contracts of employment of the two former employees each contained an implied term to the effect that the bank would not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.  Lord Nicholls described the bank as a corrupt and dishonest business, and not one where one or two individuals were behaving dishonestly, but one where the bank itself was corrupt. At paragraph 11 of the judgment Lord Nicholls stated: It is against this background that the position of an innocent employee has to be considered. In my view, when an innocent employee of the bank learned the true nature of the bank's business, from whatever source, he was entitled to say: "I wish to have nothing more to do with this organisation. I am not prepared to help this business, by working for it. I am leaving at once." This is my intuitive response in the case of all innocent employees of the business, from the most senior to the most junior, from the most long serving to the most recently joined. No one could be expected to have to continue to work with and for such a company against his wish. This intuitive response is no more than a reflection of what goes without saying in any ordinary contract of employment, namely, that in agreeing to work for an employer the employee, whatever his status, cannot be taken to have agreed to work in furtherance of a dishonest business. This is as much true of a doorkeeper or cleaner as a senior executive or branch manager.  Lord Nicholls further explained that the bank was under an implied obligation to its employees not to conduct a dishonest or corrupt business. This implied obligation is no more than one particular aspect of the general obligation not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages.  The implied duty of trust and confidence has been approved of in this jurisdiction by Laffoy J in Cronin v Eircom Ltd [2006] IEHC 380, [85] where she stated: ‘I do consider that as a matter of principle a contractual term of mutual trust and confidence which was recognised by the House of Lords in the Mahmud case should be implied into each contract of employment in this jurisdiction by operation of law.’   

 It is submitted that the complainant’s employer was under an express duty to its customers and an implied obligation to the complainant to conduct a business that complied with the law.   The complainant was both a customer and an employee and this obligation was breached, and therefore, the complainant’s trust and confidence in her employer was undermined, and which entitled her to resign.

 The complainant seeks compensation for constructive dismissal and is not seeking reengagement or re-instatement.

The Complainant commenced employment with the Respondent on or around the 19th of October 2020. The Complainant’s son B also attended the Respondents creche. The Complainant applied to the Respondent for a place for her son by submitting an application form.  The Complainants application for her son to attend the Respondents crèche was accepted by the Respondent.

There were therefore at all material times two separate and distinct contracts in being between the Complainant and the Respondent. The contracts are separate and distinct, and an alleged breach of one, if established, does not constitute a breach of the other.

On the 29th of March 2022, the Complainant was working in the crèche while her son was present in another area of the premises. On that day, the Complainants son was in the junior play area, he left the play area, walked into the utility room\kitchen area of the service, he got as far as the exit door which opens into a small fenced off area but no further, this fenced off area then opens to the main car park. The child did not leave the building. The child was observed by Ms D and was returned by Ms D to the care of the staff members. B’s mother, the complainant was informed of the incident immediately . Understandably, the Complainant was upset to learn of the incident but was assured that it would be fully investigated.

The Complainant was contacted by the area manager Ms J, who apologised for what had occurred. Ms J informed the Complainant that Ms. W, the regional manager wanted to meet with the Complainant the following day regarding the matter. A meeting was held on the 30th of March 2022 between the Complainant,  B’s father, the General Manager, Ms. W and Area Manager Ms J, and Mr M, Child Protection and Compliance Officer at the Respondents request.

Statements regarding the matter were gathered the following day by Ms J from Chef, Supervisor GF, playschool teacher, and teachers from the wobbler room Ms. K and Ms. D.

 A number of preventative measures were put in place following the incident, these included placing additional snap locks on the outer fence gates, staff meetings were held on the 31st of March 2022, the 1st of April 2022 and the 4th of April 2022.  This is recorded in an email from Ms J to Ms W on the 7th of April 2022. While the investigation into the first matter was ongoing, a second, similar incident occurred on the 6th of April 2022. On this occasion B walked out through the fire exit while two staff members were cleaning up after dinner. He made his way to the doorway leading onto the perimeter of the building.  

Ms S, the manager of the premises observed B, and brought him back to the wobbler room. On this occasion  the Complainant observed Ms. S going to retrieve B and went to the Wobbler room. The complainant then removed B from the Wobbler room and left the premises.

 The second incident was also investigated with both investigations effectively being amalgamated. It was decided that as this was the second such occurrence within 8 days, that the matter should also be passed to HR for an investigation and possible disciplinary proceedings in relation to the staff involved in the care of ‘B’.  Statements from relevant staff were taken by Ms. S and passed to Ms. W who then passed them to the HR Manager, MH. W was of the view that the matter needed to be looked at regarding potential disciplinary action.

 It was decided to proceed by way of investigation and possible disciplinary proceedings against two staff members who were responsible for the relevant areas of the crèche. The two members of staff resigned their positions before the conclusion of the investigation/disciplinary process.  Following the second incident, the Complainant and her partner, emailed Ms. W on the 7th of April 2022 seeking certain information, and a meeting to discuss matters. A follow up meeting was pending regarding the first incident in any event. Ms  W responded to advise that the matter was being taken very seriously, and that an investigation was under way. Following some back and forth, a meeting was arranged for 5pm on the 11th of April 2022.

At the opening of the meeting, Ms. W again apologised for both incidents. The Complainant and her partner were updated on the measures taken in relation to the first incident. During the meeting Ms. W stated inter alia that: ‘Well as I said to you, we will be fully disclosing any information that we have as we have nothing to hide, this incident happened we fully acknowledge that. So, it is in our interest to give you as much information as possible. And that is why we are sitting here and discussing that with you we are telling you exactly what we know… We are looking at the safety element of it now and what we can do to prevent this from happening again so that is where we are at.’  

Mr M, Child Protection officer with the Respondent stated inter alia during the meeting ‘How do we get your confidence back in us? That is what I want to touch on… we have reported the matter to Tusla as well, no doubt they will be in contact with us in time in relation to this. We are not trying to hide anything. There will be certain information that we possible cannot give you for HR for GDPR reasons. Information may need to be redacted… Whatever we can do to build back up the confidence we will do. And most importantly that B is safe at all times.  

Ms W also said that there was an option to place B in a different creche also owned by the respondent if that were to ease the concerns of the Complainant and her partner as well as waiving the creche fees for a period of 6 months as a gesture of good will.

 The Complainant at the time alleged that B had got out in excess of 5 times.    In response to this the Respondent sought further information from her so it could be investigated fully, but that information was not forthcoming.  The Respondent reported the matter to Tusla on the 11th of April 2022.

The Respondent received a request from the complainant pursuant to the Freedom of Information Act. The said act had no application to the Respondent and as such the Respondent was not permitted to release the information sought by the Complainant pursuant to that act. She was informed of this by email, she was also informed that the Respondent would release any information that they were permitted to release to her.

 The Complainant then issued a subject access request pursuant to article 15 of the GDPR, this request was complied with by letter and enclosures dated the 26th of May 2022.   The Respondent received a letter from Tusla dated the 14th of April 2022 outlining five areas of concern that had been raised anonymously regarding the incidents.

An unannounced Tusla inspection was conducted at the premises on the 14th of April. Ultimately, the Respondent was found to be in compliance, with all instances of non-compliance being addressed to the satisfaction of the inspector on the date of the inspection and\or following the provision of a written response to the letter of the 14th April 2022, said response being issued by M and dated the 26th April 2022.

The measures taken surrounding the incidents of the 29th of March 2022 and the 6th of April 2022 were to the satisfaction of Tulsa.  Notably, the Respondent was not and would never be informed of who made the complaint to Tusla. This information is not disclosed to the Respondent, the report states that ‘unsolicited’ information triggered the inspection. The person or persons who provided that information were never identified and were not known to the Respondent until the Complainant herself revealed that she had made the referral to Tusla.   It was not possible therefore for the Respondent, its servants of agents to inform employees of the Respondent that the Complainant had made the referral as neither the Respondent nor its employees were privy to that information. Employees may have guessed that the Complainant made a complaint, but they were not told this by the Respondent.

The Complainant had remained absent from work from the 6th of April 2022. On the 19th of April 2022 Ms. W emailed the Complainant seeking an update regarding when she intended to return. The Complainant responded to this email stating she was stressed following the incidents at issue, and that she had submitted a sick cert.

 By email dated the 6th of May 2022 the Complainant raised a ‘formal complaint’ regarding the incidents which took place on the 29th of March 2022 and the 6th of April 2022, and how the matter was dealt with subsequently.

Nothing in the complaint relates to the Complainants employment with the Respondent, rather it relates to the service provided by the Respondent to the Complainant regarding the provision of childcare for her child. The complaint does not identify any aspect of her employment relationship with the Respondent that she is unhappy with, nor does it claim to be a grievance related to her employment.

The Complainant itself contained numerous inaccuracies. Notably the grievance procedure set out in the Complainants contract of employment explicitly refers to a grievance related to the employee’s employment, this complaint was not so related.

 A detailed response to the Complaint raised by the Complainant was issued by M on behalf of the Respondent on the 12th of May 2022. The letter was sent by email.

The email explicitly offers the Complainant a further meeting to ‘discuss the matter further and bring you fully up to date if you wish to do so’. While the letter responds to each and every query raised by the Complainant, correcting demonstrably inaccurate elements of the Complaints complaint, such as her allegation that the only contact she received from the Respondent was to ask her when she was returning to work.

The Complainant did not accept the offer of a further meeting to discuss the matter and to update her on the matters at issue. Instead, she resigned her position by email dated the 16th of June 2022.

If the Complainant had an issue with her employment with the Respondent, it was never made known to the Respondent. The Complainant did indeed make a complaint regarding the standard of care provided to her son, but is not related to her employment contract, but solely related to the contract in being between the Complainant and the Respondent regarding the provision of childcare services to her son.    It is submitted therefore that there has been no unreasonable conduct on the part of the Respondent related to her contract of employment or at all which would permit the Complainant to resign her position and validly claim constructive dismissal.

Similarly, there has been no breach of the Complainants contract of employment, and therefore the Complainant has no basis for claiming constructive dismissal arising out of a breach of the employment contract. If there was a breach of contract, which is denied, that breach related to the contract for the provision of childcare services between the Complainant and the Respondent, and not the Contract of employment previously in being between the parties.

Further still, at no point did the Complainant seek to raise any issues regarding her employment conditions though the grievance procedure. She cannot therefore now validly claim that she has been constructively dismissed. 

 It is specifically and strenuously denied that the Complainant was constructively dismissed in that she had to leave her job due to the conduct of her employer or others at work as alleged or at all. The Complainant voluntarily and prematurely resigned her position without influence from the Respondent, its servants or agents. Moreover, the Respondent engaged with the Complainant thoroughly and throughout her employment as is evidenced by the matters set out above. The issues that the Complainant raised did not relate to her contract of employment. At no point in any correspondence relied upon by the Complainant does the Complainant make reference to her dissatisfaction with her working conditions, a breach of her employment contract, or the unreasonableness of her employer, its servants or agents, or any other matters related to her employment. The Complainants complaints relate solely to the provision of childcare services to her child.

 The Unfair Dismissal Act, 1977 defines constructive dismissal as follows: “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

 There are therefore two tests which must be considered with regard to assessing cases of alleged constructive dismissal. The two tests being the contract test and the reasonableness test. The two tests were summarised by the Labour Court in Paris Bakery & Pastry Ltd v. Mrzljak DWT 68/2014, the contract test was summarised as where: ‘an employer behaves in a way that amounts to a repudiation of the contract of employment’ The reasonableness arises if 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’ The court noted that not every breach of contract will give rise to a repudiatory breach. In this instance, the Complainant left her employment without identifying any alleged breach of her employment contract. Furthermore, the Complainant did not at any point invoke the grievance procedure of which she was fully aware.

The Complainant was kept fully informed of the issues she had complained of, namely with regard to the provision of childcare to her child, therefore, even if those issues could be related to her contract of employment, which they cannot, the issues were fully addressed, and full engagement was evident with the Complainant throughout the matter. The Respondent went to great lengths to investigate the Complainants complaints, introduced new measures, reported the matter to Tusla, and passed Tusla’s subsequent inspection.

 Investigations were ongoing when the Complainant resigned her position, a fact which the Complainant was made expressly aware of. With regard to the reasonableness test the EAT has held, in Conway v Ulster Bank Ltd UD 474/4/1981, att that the Claimant did not act reasonably in resigning without having first ‘substantially utilised the grievance procedure to attempt to remedy her complaints’. In this instance, the Complainant resigned her position without raising any grievance related to her employment.

In so far as she raised a complaint in relation to the childcare contract, she was fully aware that a detailed and comprehensive investigation of the matters at issue was underway. She was fully aware that the investigation was ongoing at the time she resigned her position and had the opportunity to meet further with the Respondent to address any concerns she had and to receive further updates on the progress of the investigation. Despite this, she chose to resign her position.

 The Respondent has demonstrated a most reasonable attitude throughout, apologising to the Complainant on numerous occasions, allowing her time off, and offering her free childcare for a period of six months and offering her childcare in an alternative premises. Moreover, the Respondent was engaged in the investigation of all matters raised by the Complainant, albeit that these matters did not relate to her contract of employment. The Respondent had also taken steps to investigate any further matters raised by the Complainant at the time of her resignation. Despite these efforts, the Complainant refused to remain in the Respondents employment, and refused to consider any other options other than resignation. The Conway case demonstrates that the onus of proof rests on the Complainant and that onus of proof is high.

 It is further submitted that the Respondent has not acted in any way unreasonably, but on the contrary has at all times informed the Complainant that these issues would be addressed through investigation, while appointing experienced individuals to conduct the investigation into the matters at issue. The Complainant was also aware that investigation/disciplinary proceedings were in being against the employees concerned, and she was also aware that two employees had left their positions following the commencement of the investigation/disciplinary proceedings.

With regard to the contract test, it is for an employee to establish that there has been a significant breach going to the root of the employment contract.

In this instance, the Complainant has failed to outline any breach of her employment contract, she does not in fact allege a breach of her employment contract at all, rather a breach of the childcare contract between the parties. It is submitted that the Complainant simply cannot satisfy the contract test, as the contract she alleges was breached is not the employment contract.

 With regard to the reasonableness test, again this relates to the employment relationship. There was no unreasonable conduct by the Respondent in relation to the Complainants employment relationship with the Respondent. Without prejudice to the foregoing, the reasonableness test is an objective test as set out in Berber v. Dunnes Stores 2009 E.L.R,

 It is submitted that looking at the circumstances of the matter objectively, it is evident that the Respondent conducted itself in a most reasonable manner. Moreover, the Respondent at all times sought to maintain the relationship between the parties through apologising for the incident in question, meeting the Complainant and her partner on at least two occasions, and offering further meetings to the Complainant to bring her up to speed regarding maters, as well as offering her free childcare, and childcare in an alternative location. It is submitted therefore that the Complainant has no basis, objective or otherwise, for her claim that she was constructively dismissed by the Respondent.

Further still, the Complainant was asked specifically what measures it could put in place to regain her trust. Again, objectively speaking it is difficult to envisage how the Respondent could have done more to assist the Complainant. Further still, any issues which were identified during the Tusla inspection were addressed to the satisfaction of the inspector on the day of the inspection and\or in the Respondents written response. If the inspector from the regulatory body was satisfied with the steps taken to address any issues present, it cannot be objectively said that the measures taken by the Respondent were unreasonable, or that the constitute a breach of the Complainants employment contract by not being sufficient.

The incident report of the 6th of April 2022 was completed on that date, while the incident report of the 30th of March 2022 was indeed completed later.   No secret was made of the  fact that an incident report was not completed at the time of the first incident.   Again, this is not a breach of the Complainants contract of employment, nor is it unreasonable, and it was rectified in any event. The fact that the child ‘B’s name was misspelt on the form is simply a clerical error. The fact that a point is made of that, shows the very tenuous nature of the case the Complainant is seeking to make.  Contrary to the Complainants claim, she never raised a grievance in relation to her employment.

Moreover, even if she did, the response she received expressly invited her to a further meeting to discuss matters therefore the process had not concluded when the Complainant resigned her position. Further still, the Complainant is not correct in her contention that ‘not having received a satisfactory response was entitled to resign her position on the grounds of constructive dismissal’ even if the Complainant had lodged a grievance related to her contract of employment, the fact that she wasn’t happy with the response does not entitle her to validly claim constructive dismissal. The test of the adequacy or otherwise of the response is objective, and it is submitted, was adequate in all the circumstances, aside from the fact that it was not related to her contract of employment and aside from the fact that it was made known to the Complainant that further meetings and engagement was open to her. She chose not to engage further.

Regarding the Complainants comparison of the present case to the Liz Allen case, there was no evidence whatsoever in the present case to suggest that had the Complainant raised a grievance that it would not have been adequately addressed. Further still, the claims made regarding the Tusla report are misleading. In each and every category in the report it was concluded by the investigator that ‘regulatory compliance is met’. The report demonstrates that the Respondent had addressed to the satisfaction of the inspector, all shortcomings identified by the inspector by the date the report was issued. The Respondent was always open and honest with both the inspector and the Complainant and has never done anything else other than engage openly and honestly with all concerned regarding the incidents.

In so far as the Complainant relies on Malik and Mahmud v. Bank of Credit and Commerce International SA [1997] UKHL 23, and Cronin v Eircom [2006] IEHC 380 again the former case is entirely distinguishable from the current circumstances. 

  In that case the bank was found to be engaging in corrupt and dishonest business, the bank itself was corrupt rather than one or two individuals.   It was on that basis, that the employees concerned were not required to continue to work for a company which was corrupt.  That case has no application in the current circumstances, the Respondent is not in any way corrupt, it does not expect its employees to do anything other than fully comply with regulations and good practice. If there are errors by employees regarding compliance, these are fully addressed by the Respondent. There is no evidence whatsoever to suggest that this is not the case, while the Respondent has always acknowledged the incidents should not have occurred, their occurrence does not in any sense lead to a conclusion that the Respondent was conducting itself dishonestly or in corrupt manner. This is made out by the outcome of the Tusla Report which the Complainant herself seeks to rely on. There has been no conduct on the part of the Respondent that could be considered sufficient to undermine the relationship of trust and confidence between the Complainant and the Respondents employment relationship.

 The Complainant was both a customer and an employee of the Respondent. She had two separate and distinct contracts with the Respondent, an alleged breach of one contract does not result in a breach of the second contract.

With respect to the Complainant, it is nonsense to suggest that an alleged breach of her childcare contract, which was addressed to the satisfaction of the Tusla investigation in any event, could also operate as a breach of her contract of employment, and that breach that goes to the root of that contract in the current circumstances.  It is submitted therefore that there has been no breach of the Complainants employment contract or any contract, which would entitle the Complainant to repudiate her contract of employment. Nor has there been any unreasonable conduct on the part of the Respondent, be that related to her employment contract or her childcare contract.

Despite this, the Complainant resigned her position. It is submitted that the Complainant is therefore disentitled to claim constructive dismissal in all the circumstances.     It is the Respondents position that the Complainants claim is entirely misconceived, she has not and cannot satisfy either element of the test for constructive dismissal and consequently the complaint must fail.

Section 1(b) of the Unfair Dismissal Acts defines constructive dismissal in the following manner:

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.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. First, is where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be ‘entitled’ to resign his/her position, often referred to as the ‘contract test’. This requires that an employer be ‘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 further performance as held in Western Excavating (ECC) Ltd v Sharp [1978] QB 761.

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘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 further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted 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, if so he/she is justified in leaving.

To succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that,

“…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

It was submitted on behalf of the complainant that the mutual trust and confidence in the respondent was gone due to a breach of contract. The complainant advised the hearing that this was due to the manner in which the two incidents involving the complainant’s son escaping to the outside of the building while in the respondent’s care, were dealt with by the respondent.  

The respondent advised the hearing that the Complainant was both a customer and an employee of the Respondent, that she  had two separate and distinct contracts with the Respondent and submits that an alleged breach of one contract does not result in a breach of the second contract.

The complainant advised the hearing that her son ‘B’ who was in the care of the creche had on two occasions escaped from the room he was in and gotten to the outside of the building.  The complainant advised the hearing that she herself had been working in the creche on both occasions in a different room to the one in which her son was being looked after.   The complainant advised the hearing that the first incident happened on the 29th of March 2022 and the second incident happened on 6th of April 2022

The complainant advised the hearing that following the first incident she and her partner B’s father, met with Ms W, Regional manager and Mr M, the child protection officer to discuss the incident.  The complainant advised the hearing that the fire exit doors had been kept open to allow the floors to dry after they had been mopped and ‘B’ had run out through the door.   Following this incident Ms W assured them that the floors would not be mopped in future until every child had left the building and also that a snap lock would be placed on each gate.

 The complainant advised the hearing that she raised the issue of the staff to children ratio in the room her son had been in. The complainant said that she had been told that there had been 2 staff to 19 babies at the time of the incident, which is more than double the appropriate ratio.   It is submitted that Ms W and Mr M told the complainant that they could not discuss this further at the time as they needed further information but that another meeting was planned for ten days hence, to answer any further questions and update the complainant on the extra measures taken.   

The complainant advised the hearing that following the second incident where her son had escaped to the front of the building without staff realising it, she took her son and went home for the day and did not return to work after that.  The complainant advised the hearing that she had told the respondent that she could not attend work until the matter was resolved, as she did not feel safe leaving her son in the crèche, and therefore she did not have anyone to mind her son if he was not in the crèche. She also sought clarification as to whether the first incident had been reported to TUSLA. The complainant emailed the creche on 7th of April and Ms W replied to the complainants email the same day and advised that an investigation was underway she also sought a meeting between the complainant, Ms W and Mr M which took place on the 11th of April 2022.

At this meeting Ms W and Mr M again apologised for what had happened. The complainant asked for information about the first incident and asked to see the incident report for the 1st incident. She was told that no incident report had been completed. Mr M stated that the ratio of staff to children in the room at the time had been 2:8.   However the complainant disputes this as she submits that a statement from a colleague had indicated that one staff member had stepped out for a break and therefore the ratio was not 2:8 as was claimed.

At the end of the meeting the complainant explained that the two incidents had emotionally affected her, and Ms W told her to take a paid week off work to recover.   The complainant told the hearing that her trust and confidence in the respondent had been undermined due to her son having escaped from care twice in 8 days.

The complaint advised the hearing that the respondent at the time of both incidents was over ratio of children to adults in the room at the time of the incidents.

The complainant advised the hearing that she had on the 12th of April 2022 reported both incidents to TUSLA.  The complainant told the hearing that she made a request for information from the respondent under the Freedom of Information Act, but she was notified by the respondent that the crèche was not subject to the FOI legislation.  By email dated 15th April 2022 the complainant made an application for personal data pursuant to the General Data Protection Regulation.   The complainant also queried why her manager, Ms S, had allegedly informed staff that the complainant had made a report to TUSLA and disclosed this to staff members.

The complainant advised the hearing that Ms W emailed her on the 19th of April 2022 asking when she would be returning to work. The complainant replied and indicated that she was not fit to return and that she had sent a doctor’s certificate to that effect. The complainant also alleged that her manager, Ms S, had breached GDPR by disclosing her name to staff as the person who had made a report to TUSLA.

The complainant told the hearing that a colleague of hers who no longer worked for the respondent had informed her of this.

The respondent in reply to this allegation advised the hearing that they had not been advised that the TUSLA inspection was initiated by the complainant but the respondent added that it was clear to all staff from the questions asked by the Inspector and the route investigated by the inspector that it related to ‘B’ escaping.  

By email dated 6th May 2022 the complainant made a formal complaint outlining her dissatisfaction with the way in which the incidents had been handled by the respondent and alleging that her requests for information had been ignored. She then forwarded the same complaint to Human Resources.   The complainant stated that it was only after she sent the complaint to HR, that she then received a reply on the 12th of May 2022 written by Mr M who replied on behalf of Ms G and Mr H.

The complainant advised the hearing that she resigned her employment by email dated 16th of June 2022.    The email stated that she was providing her one month’s notice as required and her last day of employment would be the 10th of July 2022.   By email dated 21st of June 2022 Ms. S acknowledged receipt of the notice.

The complainant asserts that she had no option but to resign following the respondent’s treatment of her.  She advised the hearing that her trust and confidence in the respondent had been undermined.

The complainant sought to assert that the respondent had even acknowledged that her trust and confidence in them was lost in the meeting of 11th of April when the child protection officer Mr. M asked her “How do we get your confidence back? “

The complainant asserts that this is an acknowledgement of her loss of confidence in the respondent as her employer.   However. the respondent advised the hearing that this statement very clearly referred to a loss of confidence in the respondent as a provider of creche services to her for her son.   The respondent added that the question in respect of their seeking to regain her confidence was coming from a childcare provider to a service user whose  child had escaped on two occasions.

The respondent submits that  there has been no breach of the Complainants employment contract or any contract, which would entitle the Complainant to repudiate her contract of employment. Nor has there been any unreasonable conduct on the part of the Respondent, be that related to her employment contract or her childcare contract.

The respondent advised the hearing that they took the incidents of a child escaping to the outside of the building very seriously.  The respondent outlined how they had met with the complainant and her partner the day after the first incident to discuss the matter and to reassure them that they were treating the matter very seriously.  The respondent advised the hearing that following the first incident they took the immediate action of fitting snap locks to the gates to try and prevent it happening again and reported the incident to Tusla.

The complainant disputes this and says that she herself reported the matter to Tusla and alleges that the respondent did not report it. It emerged at the hearing that the respondent had in fact reported the incident to Tusla but an issue with the Tusla e-mail  had at first prevented Tusla from being aware of the incident. However, it was later confirmed by Tusla that they had received notification of the incident from the respondent as stated by the respondent.

 The complainant stated that the respondent failed to complete an incident report and that she only received an incident report on the 15th of May.   The respondent advised the hearing that this was correct, that it had not initially completed an incident report as the purpose of incident reports are to inform the parents of the incident.  The respondent stated that the parent of the child involved in these circumstances worked with in the creche and was present at the tie of the incident and so was well aware of the incident.   The respondent had initially assumed that this negated the need for an incident report    However, the respondent advised the hearing that they later filled out an incident report in respect of both incidents as the Tusla inspector advised them to do so.

The complainant submitted that the incident undermined her trust and confidence in the respondent as her child was left unsupervised and escaped from their care. The respondent states that it took action immediately after the first incident by placing snap locks on the gates. The respondent acknowledges that this was not enough as the second incident happened. The respondent advised the hearing that following the second incident it fitted alarms to the internal fire doors which alert staff to doors being opened when they should not be opened.

 The respondent advised the hearing that they undertook an internal investigation to ascertain how ‘B’ had escaped and stated that they also provided training to staff in respect of the maintenance of adult to child Ratios and in respect of ensuring that there is cover if someone leaves the room even momentarily such as happened in this case, when ‘B’ escaped.  The respondent added that ‘B’ was not in any immediate danger even though he got outside of the door as he was in a fenced off area inside a private car park and where the gate was closed to the carpark. The respondent acknowledged, however, that that gate was not locked at the time.    The respondent advised the hearing that it took prompt actions by meeting with the complainant and her partner and installing snap locks on the gates and by providing staff training the next day. 

Ms. LC  a former employee of the respondent attended the hearing as witness for the complainant.  LC had been working in the wobbler room on both occasions when B escaped from that room and LC  had stepped out of the room on both occasions when B had escaped.  The respondent at the hearing stated that LC was one of the individuals who was under investigation following the incident where ‘B’ had escaped and submits that the room was left under ratio due to LC leaving the room and that this allowed B to escape.   LC in her evidence to the hearing as witness for the complainant advised the hearing in respect of the first incident that she had at the time  stepped out of the room to use her phone and send a text.  LC stated that at the time of the second incident she had had again left the room and had gone to change for college and following this she had stepped outside to vape prior to leaving.  LC acknowledged that on both occasions the room was left under ratio after she had ‘stepped out’.  

 The respondent advises the hearing that it had taken the incidents very seriously and following the investigation initiated disciplinary proceedings against those responsible.  The  respondent advised the hearing that those staff members responsible resigned before the conclusion of the investigation process.   The respondent stated that LC resigned before the conclusion of the investigation process. The respondent advises the hearing that had LC left their employment of her own accord but stated that if she had not resigned, she would have been subjected to disciplinary sanctions for leaving the wobbler room under ratio on both occasions.  LC advised the hearing that B had escaped through a door which should have been locked but stated that it had been opened earlier on in the day to facilitate an extension lead running to the outside of the building for maintenance purposes.  LC stated that the door should have been locked afterwards but that she had assumed that Ms. K who was also in the room that day had checked it and that Ms. K had probably assumed that she checked it.

LC advised the hearing that on the second occasion her supervisor GF had told her to leave the room to get changed for college.  Witness for the respondent GF advised the hearing that she did not tell LC to leave the room and stated that LC had left the room of her own accord to get changed for College.   GF stated that LC then returned and GF herself went outside for a smoke after which  LC followed her to have a vape.   LC in her evidence to the hearing as witness for the complainant stated that the fault was not with her but with management of the creche for not ensuring that the correct adult to child ratio was maintained when LC stepped out of the room.   

The respondent advised the hearing that a TUSLA inspector attended the premises on 14th of April and issued a report  following this inspection.  The respondent added that the complainant resigned before the respondent had a chance to address the issues raised in the TUSLA report.

I note the complainant in her submission referred to the case of Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23 the House of Lords heard a case taken by two employees who had been employed by the Bank of Credit and Commerce International SA which collapsed in the summer of 1991 and a finding was made that that the employees concerned were not required to continue to work for a company which was corrupt.     Lord Nicholls in his findings explained that the bank was under an implied obligation to its employees not to conduct a dishonest or corrupt business. This implied obligation is no more than one particular aspect of the general obligation not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages.

I am satisfied however that the case cited differs significantly from this as there has been no case made out to establish that the Respondent in this case is in any way corrupt.     I note that the respondent firstly apologised to the complainant and acknowledged that the incidents should not have occurred, and then took action to prevent future occurrences such as fitting of snap locks to the gates and alarms on fire doors as well as providing staff training in respect of maintaining ratios where a staff member has to step out of a room momentarily.

The complainant advised the hearing that she submitted a formal complaint on the 6th of May stating that B had escaped into the public car park, the respondent corrected this statement stating that B had escaped into fenced of area outside of the building which was not in the car park and added that this fenced off area was separated by a gate and the gate was closed but not locked.

The complainant at the hearing stated that she was kept in the dark by the respondent following the incidents and states that she did not receive any information from the respondent.    The respondent advised the hearing that it had met with the complainant and Bs father on two occasions following the incidents and had offered a further meeting which the complainant did not accept.

The respondent advised the hearing that they took additional precautions in the form of fitting snap locks to gates and alarms to interior doors to ensure this did not happen again.  The respondent stated that they had also provided staff training regarding the maintenance of appropriate ratios and the need to obtain cover before leaving a room if it was going to leave a room under ratio.

The respondent advised the hearing that the complainant had been given a week off with pay after the second incident and stated that they had offered the complainant a place for her son in another related creche and had offered that creche place free of charge for a period of 6 months.  

The complainant refused the offer which was made on the 11th of May and again on the 9th of June and she  chose to resign on the 16th of June.  The respondent advised the hearing that there had been  no issue raised by the complainant in respect of her contract of employment.

 The respondent stated that constructive unfair dismissal places a very high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve the grievance with the employers.   The complainant confirmed that she had not made full use of the grievance procedure before submitting her resignation.

It appears to be common case from the evidence put forward that the respondent tried to resolve matters relating to the care of ‘B’ immediately following the incidents and took all possible measures including fitting snap locks to gates and alarms to interior doors as well as retraining staff in maintenance of ratios.  The respondent also undertook an investigation to ascertain how the incidents happened.

The respondent in a bid to resolve these issues also offered the complainant a place in a sister creche and offered to waive  the fees for that creche for a six-month period.   However, the complainant refused this offer and appears to have decided that she was leaving, and that nothing was to be done to change her mind.

The respondent in its evidence advised that offers of a further meeting were extended to resolve matters, but the complainant refused such offers.

The respondent advised the hearing that the complainant did not raise any grievance in respect of her employment prior to resigning and the complainant agreed that there were no issues with her employment prior to the incidents where B escaped.  The complainant at the hearing agreed that she had not raised any issue in respect of her employment but stated that she had raised a complaint in respect of B escaping and the way this was dealt with by the respondent.

 I note that the complainant in her written resignation, did not raise any issues in respect of her employment and  did not point to any reason for leaving or any dissatisfaction with her employment.

The complainant advised the hearing that she had raised an issue in respect of the respondent disclosing her name to staff and discussing her complaint to Tusla however it emerged at the hearing that the respondent itself had not been advised that the inspection was initiated by the complainant but they stated that it was clear from the questions asked and the route investigated by the inspector that it was related to ‘B’ escaping.    The complainant at the hearing asserted that this contributed to her decision to resign.    Although the respondent had a grievance policy in place, I note that the complainant did not seek to invoke it.

The respondent submitted that it is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment. 

The respondent referred to the decision of the Supreme Court in Berber v. Dunnes Stores [2009] 20 ELR 61. It noted that in this case the Supreme Court sets out the test for determining whether a breach of mutual trust and confidence has occurred as follows: a) The test is objective; b) The test requires that the conduct of both the employer and the employee be considered; c) The conduct of the parties as a whole and the cumulative effect must be looked at; and d) 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.

I note from the evidence adduced that there was no grievance raised regarding the complainant’s employment and that the complainant did not exhaust the internal procedures.   This questions the reasonableness of the complainant.  I note that the respondent In seeking to find a resolution, offered the complainant a place in another creche and also offered to dispense with creche fees for six months. The complainant did not accept this offer.

The testimony of both parties at the hearing indicate that the complainant was offered the opportunity to further discuss the matters in respect of her sons care but refused this opportunity.    From her own testimony the complainant confirmed that she did not engage with the grievance procedure before resigning.

Having considered the totality of the evidence adduced, it is not possible to conclude that the complainant in this case had nowhere else to turn other than to hand in her resignation and therefore fall within consideration for a constructive unfair dismissal.  Furthermore, I am satisfied from the totality of the evidence adduced that the Complainant in this case cannot meet the requirements of either the contract test or the reasonableness test, and that any alleged breach of contract or unreasonable conduct relates to a contract other than the Complainants employment contract.

If follows from the above, that the Complainant was not justified in resigning her position in circumstances where there had been no breach of the Complainants employment contract, nor was there any unreasonable conduct related to the Complainants employment contract or at all.    Accordingly, I declare this claim to be  not well founded .

I declare this claim to be not well founded.

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

CA-00051801-002

22/07/2022

It is submitted that the Complainant received her contract of employment on or around the 20th of September 2020.     It follows therefore that the Complainants complaint is without merit and must fail.

With regard to the Terms of Employment Claim, it is submitted that the Complainant was provided with a statement of terms in September 2020. As such the Complainants claim is not well founded and must fail.

The Complainant accepted she received a contract of employment at the commencement of her employment. In these circumstances, I find that the Complainant under Section 3 of the Act is not well founded.

I declare this claim to be not well founded.