Complainant

Respondent

Parties

Ms Danica Gutierrez

Cafico Corporate Services Limited

Complainant

Respondent

Anonymised Parties

Representatives

Mr Conor McCrave Solicitor

Setanta Solicitors

Ms Niamh McGowan BL instructed by McInnes Dunne Murphy LLP

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-00061841-001

28/02/2024

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

CA-00061841-002 WITHDRAWN

28/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00061841-003

28/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061841-004

28/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00061841-005 WITHDRAWN

28/02/2024

These matters came before the Workplace Relations Commission dated 28/02/2024 as complaints submitted under section 8 of the Unfair Dismissals Act, 1977 (Constructive Dismissal); under section 8 of the Unfair Dismissals Act, 1977 (Whistleblowers); under section 12 of the Minimum Notice & Terms of Employment Act, 1973; under section 27 of the Organisation of Working Time Act, 1977; and under Schedule 2 of the Protected Disclosures Act, 2014 respectively.  The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 30/08/2024.  The complaint pursuant to Schedule 2 of the Protected Disclosures Act, 2014 was withdrawn at the outset of hearing together with the complaint under section 8 of the Unfair Dismissals Act, 1977 (Whistleblowers). 

The Complainant at all material times was employed as a Senior Client Manager with a job title of Senior Manager.  The Complainant commenced her employment with the Respondent on 15/08/2022 and she resigned from her employment on 30/01/2024.  The Complainant worked 37.5 hours per week for which she was paid €7167.00 monthly.    

The Respondent company was established in 2012 and it services clients from the financial services, technology, communications, pharmaceutical and aviation sectors to whom they provide a full suite of corporate administration, financial and management accounting, tax compliance and treasury services. 

The Complainant claims constructive dismissal, failure to receive payment for annual leave entitlement and failure to receive statutory minimum period of notice on the termination of her employment or payment in lieu thereof. 

The Respondent disputes the Complainant’s claims in their entirety. 

Both parties provided helpful factual and legal submissions together with supporting documentation in advance of hearing for which I am grateful.  For ease of reading and for clarity I have omitted references made to the withdrawn complaints in my overview of the submissions in so far as such an omission does not detract from the overall sense of the narrative as set out.   

Overview of written submission of Complainant

The Complainant was a Senior Client Manager employed by the Respondent.  She commenced employment with the Respondent on 15 August 2022.  The Respondent, Cafico Corporate Services Limited, is a body corporate.  The Complainant’s salary was €86,000.  She conducted her work diligently and without issue throughout her tenure at the company.  The Complainant was invited to a meeting which took place on 26 September 2023 with Rolando Ebuno, Chief Accounting Officer, and the Head of International Services. 

The Complainant was informed that she was going to be placed on a Performance Improvement Plan. There had been no advance warning of this process, and no reason to expect that such a process would be invoked against the Complainant.  The Complainant was provided with a copy of a Performance Improvement Template.  The language, the reprimands, and the corrective actions stated in the document are vague.

The Complainant submits there are no clear measurable or tangible goals as would normally be expected from a detailed and meritorious performance improvement plan.  No specific examples of poor performance are provided.  Certain sections are copy pastes of others.  The plan in general is unclear and ambiguous. This was a hastily drafted document which does not accurately reflect a viable Performance Improvement Plan.

The Complainant submits she received a communication at 10.47am on 3 October 2023, inviting her to a meeting at 11 am.  The Complainant submits she was given no notice of this meeting, no agenda, no right to be accompanied and was asked to attend at short notice.  When the Complainant attended the meeting, she was offered a voluntary severance package.  Ms Gutierrez was offered 2-month salary payment and €5,000 ex gratia payment.  The Complainant’s contract provides that three months’ notice should be given to either party for termination.  The offered amount breached her contractual entitlement. 

The Complainant submits she was alarmed to be offered this severance package.  It was also communicated to the Complainant that she was to have an answer to the package by lunchtime that day.  She was also instructed not to contact any of her clients. This was an intimidating experience for her.  The Respondent was exerting undue pressure on the Complainant to force an answer, which given the value of the offer would have been to her detriment.

There was a clear proximity between the initial PIP meeting and the voluntary severance package. The PIP as calibrated was insufficient to ground any termination process, The PIP was merely a means to an end to terminate the complainant’s employment.  The Complainant’s solicitors wrote to the Respondent by letter of 3 October 2023 alerting them to the deficiencies in the process followed so far as well as the Complainant’s distress at their treatment.  The Complainant was on medical leave since 3 October due to workplace stress.

The Respondents solicitors replied by letter of 9 October 2023.  They claimed that the PIP had been introduced to address alleged deficiencies in the Complainant’s performance over recent months.   The “deficiencies” were not explained.  The letter asserted that the meeting of 3 October 2023 was prompted by a client complaint of 2 October 2023.  The complaint was not detailed.  The identity of the Complainant was not supplied.  The Complainant submits the existence of the complaint had not been canvassed in the meeting of 3 October despite being the grounding factor in the severance proposal. The Respondent’s position is not accepted, or realistic.

The Complainant submits that in the interim the Financial Director for the Respondent wrote directly to the Complainant to inform her that she would not be receiving payment for her medical absence.

The Complainant Solicitors responded to the letter of 9 October by letter of 24 October 2023.  The letter noted that any complaint would require investigation before being utilized to ground termination.  The letter requested a copy of the complaint.  It included a DSAR on behalf of the Complainant.

The Respondent’s solicitors replied by letter of 20 November 2023.  The letter repeated claims of sub-standard performance without evidencing same.  It stated that the client demanded the Complainant be removed from their account.  No evidence of this was provided.  The Respondent again failed to provide a copy of the alleged complaint.

The Complainant’s solicitors wrote to the Respondent by letter of 20 November 2023.  The letter noted that the Respondent failed to provide specific detail on alleged performance issues or the complaint.  It further noted that the Complainant should have received a copy of the alleged complaint.  The letter notified the Respondent that they would be in receipt of medical certificates for any absence, it requested that the Complainant not be contacted directly while on sick leave and that any relevant contact come from Human Resources.

The Respondent’s solicitors replied by letter of 22 November 2023.  They stated that they were under no obligation to provide the Complainant with a copy of the alleged complaint.  They further stated that they were under no obligation to conduct an investigation into the complaint.  The Complainant’s solicitors wrote to the respondent by letter of 18 December 2023.  It restated the Complainant’s position.  It informed the Respondent that during the meeting of 3 October 2023 Mr Rodney O’Rourke, CEO of the Respondent, told the Complainant that even if she refused to take the severance package, it would only be a matter of time and she would be exited regardless.  This was duress to force the Complainant to accept the severance package, which was less than her legal entitlement.  The letter again requested a copy of the alleged client complaint.

The Complainant’s solicitor responded by letter of 5 January 2024.  The letter requested a copy of the alleged complaint as a matter of fair procedure.  It noted that a PIP could not progress without the Complainant having sight of such an integral document.

The letter noted that the Complainant was furnishing the Respondent with a final opportunity to disclose the alleged complaint.  The Respondent replied by letter of 8 January 2024.  The letter asserted the existence of the alleged complaint.  It stated that the Complainant would accuse the Respondent of harassment/intimidation if they advanced the PIP.  It noted that the Complainant was considering her position at the company. It alleged the Complainant had obtained alternative employment.

The Complainant’s solicitors wrote to the Respondent by letter of 30 January 2024.  The letter reiterated Mr O’Rourke’s comment to the complainant in the meeting of 3 October 2023. It noted the Respondent’s failure to provide the alleged complaint.   It noted that the Complainant had exhausted all internal remedies to resolve these issues.  It further noted that the Complainant had no trust and confidence in the Respondent’s desire to meaningfully engage with them over her treatment at the Company.  The letter notified the Respondent that the Complainant considered that they had been constructively dismissed due to the Respondent’s actions and omissions.

The letter noted that the Complainant treated these actions and omissions of the Respondent as a fundamental breach of their contract of employment on the following grounds:

“The meeting of 26 September 2023 without notice, or right of representation, placing her on a Performance improvement plan.  Despite a data access request, no supporting documentation grounding this process has been provided. There is no documentation available which points to any performance issues at all.

The meeting of 3 October 2023 without notice, or right of representation offering her a proposed voluntary redundancy package.

Letter of 9 October 2023 purporting to rely on a complaint of 2 October 2023 which has never been produced. It is of note that despite a data access request no such complaint has ever been produced.”

The lack of any investigation either on receipt of the purported termination or thereafter where called on to do so.”

The Respondent replied by letter of 1 February 2024.  It denied the Complainant’s concerns.  It focused on their unsubstantiated assertion that the Complainant had secured alternative employment and also on her medical certificates.  It laid the blame of the Respondent’s failure to investigate these matters on the Complainant.  It asserted that the DSAR had been appropriately answered.  They failed to disclose the alleged complaint, even in redacted format.  The letter threatened the Complainant with legal costs of any WRC proceedings.

Legal submission

In the present matter the Complainant was subjected to a PIP.  The Complainant committed to the plan in good faith following the meeting of 26 September 2023.  On 3 October 2023 the Complainant was subjected to a meeting with senior company officers who offered her a severance package that was less than her legal entitlement.  She was directly informed by the Respondent company CEO that one way or another she would be exited from the company.

This decision had purportedly been based upon an alleged complaint which the Respondent failed to provide to the Complainant.   To this day the Respondent has refused or been unable to provide the Complainant with a copy of the alleged complaint.  This resulted in workplace related stress for the Complainant.  The Respondent’s actions, namely the explicit threat of termination of employment, failure to investigate or provide the alleged complaint, breach of fair procedures with respect the PIP and the conduct of the meeting of 3 October 2023 were in breach of the contract test.

The Respondent’s conduct was demonstrably unreasonable.  In any performance or disciplinary procedure, the subject is entitled to receipt of all complaints and materials.  By failing to provide these elements but insisting the Complainant undergo the process the Respondent has clearly demonstrated their inability to progress fair procedures.  The threat made by Mr. O’Rourke demonstrated any such process was inherently biased against the Complainant and would result in the termination of her employment.  The Complainant was denied an investigation by the Respondent, she could have no confidence in the independence and success of any grievance process given the CEO’s attitude. There were no internal remedies for her to pursue in this instance.

Based on the foregoing, it is submitted that the Complainant has clearly met the test for constructive dismissal in respect of both the Contract Test and the Reasonableness Test.

Mitigation of loss

The Complainant’s employment terminated on 30 January 2024.  Her gross annual salary was €86,000.  She received pension contributions.  The value of pension contribution from 30 January until August 2024 is calculated by the Complainant to be circa €3,010.  

During the currency of her unemployment, the Complainant obtained illness benefit in the sum of €721.34 from the Department of Social Protection due to her medical condition.  She received Jobseekers allowance in the sum of €1,160.  The total value of DSP benefits paid to date is €1,881.34.  

The Complainant applied for multiple job vacancies.  She obtained several part-time and short-term work opportunities.  She worked as a Movie Extra and has earned €1,124.31 euros since her termination. She obtained work via Gigable.  She earned €1,622.47 through that work.  

The Complainant applied for roles via Linkedin, Indeed, Upwork, Fiverr and PeoplePerHour.  The Complainant also reached out to her own professional network for opportunities.  The Complainant enrolled in a government funded business course which she successfully completed. The Complainant has not been successful in obtaining permanent employment.  She has subsisted on personal loans and savings supplemented by gig work.  The Complainant’s loss of earnings is as follows:

Gross salary of €86,000 per annum plus pension contributions of €3,010 equal to €89,010.   Loss of salary from 30 January 2024 to until 30 August 2024 = 7 months. €86,000 divided by 12 = €7,166.66, multiplied by 7 = €50,166.67 €50,166.67 plus €3,010 equals €53,176.67   During that time the complainant earned €4,628.12 from her part time work and DSP benefits.

The Complainant’s total loss of earnings is €53,176.67 - €4,628.12 = €48,548.55.

Law relied on by Complainant

Section 6(1) of the Unfair Dismissals Act 1977 provides that the dismissal of an employee shall be deemed, for the purposes of the Act, to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 1(b) of the Act defines constructive dismissal as

“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 7 of the Act states —

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances

a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the reinstatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”

The following case law is cited by the Complainant in support of her case:

Rehab v. Roberts [UDD 20206]

Get Fresh v. Walshe [UDD 2142]

Allen v. Independent Newspapers (Ireland) Limited [2002] 13 ELR 84

Summary of direct evidence of Complainant on oath

The Complainant confirms she was a senior manager and she started in 2022 and she worked with 4/5 people.  The Complainant submits she worked directly with Rolando (hereafter RE).  The Complainant submits her role involved preparing financial accounts and phoning and emailing with clients.  Her role involved filing financial statements every two months and she submits all financial statements have deadlines.  The Complainant submits she tries her best to meet the deadlines as much as possible and she makes reference to a filing from 2021 which was not made on time and continues to have repercussions.  The Complainant confirms she maintains regular contact with all her clients.

The Complainant submits none of her clients have ever raised issues unless maybe feedback delays and stuff but not specifically on her performance.  The Complainant confirms she never received a verbal warning in respect of work performance.    

Recalling the events of 26 September 2023 the Complainant submits the deadline for filing had been 23 September and she received a phone call from the Head of International Services saying that she would like to discuss some performance improvement with her.  The Complainant submits she asked if HR would be there and the Complainant submits the Head of International Services replied that they don’t have a HR.

The Complainant submits there had been no specific allegations about her performance before that day and she was not informed of her right to bring a colleague to the meeting.  The Complainant submits the meeting took place and RE (line manager) was also in attendance.  The Complainant submits she was handed the paper and all the issues were listed on the Performance Improvement Plan document.  The Complainant submits she has worked in many different companies in Ireland for 9 years and she did not know the standard procedure for this.  The Complainant submits she felt singled out as she always works with 2 other people and she was asking herself if this was a personal attack. 

The Complainant submits there were issues on some of her audits dating back from before she started and she names two client accounts [names redacted].  The Complainant submits there was a history of delays that were difficult to address and she inherited those.  When asked by her representative if there was any support offered to her during the PIP she replies no.  The Complainant submits there was nobody from HR present.  The Complainant submits 3 new managers started after the 26 September and her client portfolio was reduced from 37 to 20. 

The Complainant submits she received an email on 3 October about a meeting in the boardroom.  The Complainant submits Rodney O’Rourke (hereafter ROR) and Mairead Lyons (hereafter ML) were at the meeting.  The Complainant submits it was not offered to her to bring a colleague.  The Complainant submits she was told she was being offered voluntary severance as they had received a client complaint.  The Complainant submits she said this was the first time she was hearing this and she submits that was to respond by lunch time and that she was not to contact any of the clients.  The Complainant submits she was asked what would happen if she did not accept the offer and she submits she was told “you will be made redundant eventually anyway.”  The Complainant submits she did not request an investigation.  The Complainant submits she provided certs from October eventually. 

Summary of cross-examination of Complainant

The Respondent representative commences cross-examination with the annual leave claim and provides a detailed summary of the annual leave taken between 15/08/2022 to 31/03/2023.  The Respondent representative submits that as the claim is made pursuant to the Organisation of Working Time Act the Act gives a statutory entitlement to 20 days.   The Complainant submits she can’t really remember when she took annual leave but accepts she took 16 days in one block and accepts that she probably took 24 days as set out in the summary exhibited. 

The Respondent representative turns to the complaint under the Minimum Notice & Terms of Employment Act.  The Complainant accepts she resigned with immediate effect.  When asked if she returned when her cert expired on 31 January the Complainant submits she did not return.  It is put to the Complainant that she has no entitlement to notice and she submits she was not in direct contact with the Respondent though they had called her on 17 October to see if she was coming back as her cert had expired on 13 October and the Complainant submits she had said she would get back to them but she didn’t. 

It is put to the Complainant that she decided not to communicate with the Respondent from the day she left the building on 3 October to which she responds yes.  When asked if it is correct that she cleared out her desk on that day the Complainant submits that is not true as all her belongings are still there.  It is put to the Complainant that she decided to resign in January and that at no stage between October and January did she lodge a grievance.  The Complainant asks the Respondent representative if she could expand on that.  The question is repeated and the Complainant responds no she did not because she had engaged a solicitor to do that. 

The Complainant is asked what investigation did she think was needed into the client complaint to which there is no response.  It is put to the Complainant she had a meeting on 26 September about the PIP followed by a further meeting on 3 October after another complaint had been received during which the Complainant was told by the Respondent that the client had asked that the Complainant be taken off the account and the Complainant is asked if she accepts an employer can do that if a customer wants a particular course of action to be taken which is not responded to.

The Respondent representative puts it to the Complainant that she had said in evidence she was not supported in the PIP meeting on 26 September and refers to the meeting that took place on the redistribution of the portfolios to which the Complainant responds that was not providing support to her and it was taking away the chance from her to prove that she can do it.   

When it is put to the Complainant that she had said she was already doing everything in the PIP she responds that she was doing everything that was reasonable and she submits the expectations in the PIP were not reasonable and that emailing back within 2 hours is not reasonable as she receives between 200 and 300 emails a day. 

When asked if she accepts her employer is entitled to a certain performance from her the Complainant responds by commencing to talk about other companies she worked in.  The Respondent representative asks the Complainant if she accepts the Respondent is entitled to raise the issues with her that have been identified regarding her responsiveness as set out in the PIP and she agrees that yes they are entitled to but that she had been there for a year and this was the first time any issues were raised.

It is put to the Complainant that RE has had to speak to her in the past about her lack of responsiveness to which she replies – ok yes he has.

It is put to the Complainant that she said in her evidence that the first time she heard there were issues was at the PIP meeting but she now accepts her employer has spoken to her in the past and the Respondent representative asks if she recalls an issue in May of 2023 where she told a client that she would not meet the deadline to which the Complainant responds she can’t remember.  The Respondent representative puts it to the Complainant that she spent the time arguing with the auditors rather than just getting on with it.  The Respondent representative names the client and asks the Complainant if she recalls indicating to the client that she would not have the financial statements to which the Complainant replies that she remembers it now and submits they had been notified a month before of a liquidation to which the Respondent representative puts it to her that the point is that there was a 6 pm deadline to which the Complainant laughs by way of response. 

The Respondent representative puts it to the Complainant that evidence will be given that there were issues raised with her to which the Complainant replies she had never heard the word complaint before.  The Complainant is asked if she recalls a meeting in June of 2023 about increasing operational efficiencies which the Complainant challenged and asked if it was a review of her performance.  The Respondent representative asks if the Complainant can remember this meeting about operational improvements which became heated to which the Complainant replies “if that’s what you call it”. 

The Complainant submits she was trying to explain her point of view and as the conversation was directed at her she asked if it was a performance review.  The Complainant is asked if she accepts the Respondent wants to ensure they are getting paid for the work they do which the Complainant accepts.  The Complainant accepts that she apologised after the meeting for the way she spoke at the meeting but not for what she said. 

The Respondent representative puts it to the Complainant that she has provided her with 4 examples of where management had spoken to her about her performance although the Complainant had stated in evidence she had never been spoken to or that she could not recall.

The Complainant is asked if she accepts the Respondent might have a different approach to performance management that she (the Complainant) might have and whether she disputes they were entitled to put her in a PIP to which the Complainant replies no.  When it is put to the Complainant that she was never told she was in a disciplinary she states that word was not used.

It is put to the Complainant that she is being inconsistent in her evidence regarding what she has said about the meeting on 3 October in regard to the response she was given when she asked what would happen if she did not accept the terms offered.  The Respondent representative submits there are now a number of different accounts.  The Complainant confirms she was on a sick cert until end February when asked how long she was sick after she resigned on 31 January. 

Complainant closing submission

The Complainant representative submits the burden has been met as there has been a fundamental breach of the Complainant’s contract.  It is submitted the conduct of the Respondent was so unreasonable the Complainant was justified in resigning.  The Complainant was not permitted to bring her colleagues to either of the meetings.  The Complainant requested an investigation into the complaints but that was denied until she returned to work.  The Respondent did not refer the Complainant to Occupational Health.  It is submitted the Complainant could have no confidence in any proceedings and her employment would have been terminated and she was left with no option but to resign. 

Overview of written submission of Respondent

The Respondent submits the Complainant commenced employment with the Respondent on 15 August 2022 in the role of Senior Manager and reported to Rolando Ebuna, Head of IFRS Reporting.  Following a series of complaints made about the Complainant by clients of the Respondent and other professional service providers engaged to work with clients of the Respondent, the Respondent submits it deemed deemed it necessary and appropriate to invoke its performance management process with the Complainant and place the Complainant on a Performance Improvement Plan (PIP) in a meeting on 26 September 2023.

The Respondent submits in a matter of days following this meeting, a further customer complaint was raised and a further meeting was scheduled with the Complainant on 3 October 2023.  Following that meeting, the Complainant commenced a period of absence, which for a period of time was uncertified, with certain back-dated medical certification arriving to the Respondent in late January 2024.

The Respondent submits the Complainant did not raise a grievance internally within the Company.  The Respondent submits the Complainant’s solicitor requested an investigation into a customer complaint made against the Complainant, but the Complainant was absent from the business and was not engaging with the business, therefore the Respondent was unable to commence such an investigation.  The Respondent submits its solicitor repeatedly stated its willingness to commence an investigation, and to reconvene the PIP process, once the Complainant had returned to work.

Further, the Complainant has changed what she is alleging is a protected disclosure (which to be clear, is denied).  In correspondence from the Complainant’s solicitor dated 3 October 2023 it is unclear but stated that the contents of the letter should be taken as a protected disclosure.  In the Complaint Form, the Complainant changes the narrative again by stating: “The Employee has advanced commentary from the Chief Executive Officer that she would be exited through an artificial process that did not respect employment law”.

Mr Rodney O’Rourke (Chief Executive Officer) vehemently denies that he made any such statement. The Respondent submits this is an important point because much of the Complainant’s correspondence through its solicitors is around this purported communication which never happened.  For example, in a letter from the Complainant’s solicitor to the Respondent’s solicitor dated 18 December 2023, the Complainant makes much of this purported communication: “The redundancy package was purported to be voluntary.  This communication from the director made it clear that it was not.  This communication demonstrated that Cafico intended to unfairly dismiss our client.  The relationship of trust and confidence between employee and employer was severely undermined.  Our client was extremely distressed as she knew that her employment would be terminated regardless of her ownperformance. This communication was the cause of our client’s leave of absence due to work related stress.”

The Respondent submits this allegation is unsubstantiated and untrue.  It appears from the Complaint Form and correspondence from the Complainant’s solicitor that her entire claim of constructive dismissal and/or a protected disclosure is predicated on a purported statement that is blatantly false and cannot be corroborated by the Complainant.  In fact, Mairead Lyons (Chief Legal Officer), who attended the meeting with Mr O’Rourke, corroborates that he did not make that statement. The Respondent submits that what was communicated to the Complainant was that if she was not agreeable to a voluntary departure that the PIP process would continue.

The Complainant sent emails to the Respondent on 5 January 2024 requesting that the Respondent provide her with “employment confirmation.” The Respondent was not clear as to what the Complainant was seeking but could only conclude that the Complainant was requesting a statement of employment, which is normally only sought when an employee is required to provide such a statement to a new employer.  Clarification was sought from the Complainant’s solicitor by way of letter from the Respondent’s solicitor dated 8 January 2024.

The Respondent submits no such clarification was received and the Complainant resigned her employment via letter dated 30 January 2024.   The Respondent sought by way of letter dated 9 May 2024 the particulars of the Complainant’s attempts to mitigate her financial loss, and received no response.  The Respondent notes, from the Complainant’s submission, that she has been in receipt of illness benefit since she left the Respondent’s employment and in such circumstances submits that any financial loss claimed is due to what she terms her “medical conditions” and not arising from the dismissal.  Further and without prejudice to the foregoing the Respondent submits that there have been paltry efforts to mitigate her loss and places her on strict proof thereof. The Respondent relies on the decision of Courtney Carey v WIX Online Platforms Limited (2024) ADJ-00048434 regarding the extent of mitigation required which the Complainant clearly does not satisfy. 

Unfair Dismissal Factual Submission

The Respondent submits following a series of complaints made by clients of the Respondent about the Complainant’s performance and level of engagement, the Respondent deemed it necessary and appropriate to invoke its performance management process with the Complainant.  On 26 September 2023, the Complainant was invited to a performance management meeting with Rolando Ebuno, Chief Accounting Officer, together with the Head of International Services. The PIP discussed at the meeting of 26 September 2023 was implemented in an attempt to address deficiencies noticed in the Complainant’s performance over recent months.

The Respondent submits that the Complainant seeks to assert in the Complaint Form that, in respect of the PIP: “the language, the reprimands, and the corrective actions are unnecessarily vague”.  The Respondent wholly denies this is the case.  A plain reading of the PIP demonstrates there are clear categories demarcated as follows: (i) Area Requiring Improvement; (ii) Current Performance; (iii) Goal/Expectation; (iv) Due Date /Milestones; and (v) Measure of Success.  The conclusion of that meeting was that a further meeting would take place on 25 October 2023 to discuss the Complainant’s performance against the plan goals.  The areas requiring improvement are clear, the targets are clear and the deadlines are reasonable.

For example, the first area for improvement highlighted in the PIP is:

“Responsiveness to emails and teams during days working from home during work hours 9-5.30pm Monday to Friday” –

 “Timelines of response to urgent tasks – external”.

The measure of current performance is:

“It can be difficult to get a response for urgent tasks, particularly when working from home. Improvements can be made to response to urgent emails, internal and external”.

The goal/expectation is:

“Respond to internal team messages and emails 2 hours from senior team members and your direct reports. It is important that you are available to clients, junior team members (for coaching) and senior team members during working hours. If you are busy on a call or in the middle of a task, please send a holder message saying when you will respond. Respond to a client email within 24 hours of receipt.

Provide a holder email where a full response is not possible.

To improve response times, particularly when a client is requesting an update. Our expectation is that you will respond within 2 hours for urgent client tasks. At a minimum, you should send a holder email to the client stating when you expect to provide a full response.

Our goal for you is to receive positive feedback from clients.”

The periodic milestones to monitor progress are: “30/10/2023 30/11/2023 30/12/2023

The Respondent submits the above is clear, fair, reasonable, and objective.  As illustrated by the above example, the Complainant was provided with a reasonable time in which to effect improvement, and a reasonable work situation within which to concentrate on making that improvement, per Richardson v HWilliams & Co Ltd UD17/1979.  The Respondent submits reasonable targets were also set, per Hanlon v Smiths’ Dolphin’sBarn Ltd UD883/1982.   If the Complainant had an issue with the PIP, she did not raise that within the meeting, or directly with her employer before leaving her employment. The Respondent commenced a performance management process, in adherence to well established principles of performance management in Ireland.

It is the Respondent’s position that the Complainant was not constructively dismissed by the Respondent.  Notwithstanding the Respondent’s efforts to manage the Complainant’s performance with a clearly outlined PIP, a further complaint was made about the Complainant by a client of the Respondent on 2 October 2023.  The client requested the Complainant’s removal from their account with immediate effect, such was the level of dissatisfaction with her service.  The Respondent had little option but to accede to the client’s demand. 

It was this client complaint which prompted the Respondent to convene the meeting of 3 October 2023, in which a voluntary redundancy package was proposed to the Complainant.  Details of the customer complaint, which had been received verbally, were communicated to the Complainant in this meeting contrary to the belated assertions of her solicitor in correspondence and in her submissions to the WRC.  

The Respondent submits that this proposition of a voluntary exit to the Complainant does not demonstrate, in any way, unreasonable conduct by the Respondent. It was a conversation that arose organically when the Respondent was considering how best to manage the Complainant and ascertain what the Complainant actually wanted, going forward, within the business, in circumstances where it was becoming clear to the Respondent that the Complainant may not have been taking the performance improvement plan seriously.

The Respondent had a real concern that the Complainant was not taking the PIP seriously given the proximity of the introduction of the plan to a further client complaint.  The Respondent wholly disputes the Complainant’s assertion that this conversation was positioned to “soften the Complainant up”.  The Respondent was met with a difficult situation and concern for its business, and sought to manage this concern by presenting the Complainant with an option to progress with the PIP, or to transition from the business amicably on agreed terms.  This was a conversation, not an ultimatum.  The Respondent was quite clear that the performance management process would, necessarily, continue should the Complainant elect to continue her employment with the Respondent. 

The Respondent submits the Complainant resigned of her own volition after a period of absence from the business and following, it is submitted, her own dissatisfaction that the Company was left with no option but to place her on a PIP following a series of customer complaints made against the Complainant.

It is submitted that the Complainant did not engage with the Respondent’s performance management process, and, in circumstances where she claims the Respondent did not investigate issues she had in relation to those customer complaints, for the avoidance of doubt, it was the Complainant that refused to engage with the business.  The business was therefore prevented from commencing any such investigation, notwithstanding its assurance made to the Complainant in correspondence with its solicitors, that it would be willing to do so if she were to return to work.

In a letter from the Respondent’s solicitor to the Complainant’s solicitor dated 1 February 2024, this position was reiterated: “It is wrong to assert that your client has tried to engage with any internal investigation process. She has never sought to do so. All she has done instruct your office to repeatedly demand an investigation take place. At no point since she first went on sick leave has your client either directly, or indirectly via your office or her medical practitioner, given any indication she was fit to engage with our client in any way.”

The Respondent submits following the meeting, the Complainant left the business and commenced a period of sick leave, certified from 3 October 2023 up to 13 October 2023.  On 18 October 2023, one of the directors of the company wrote to the Complainant noting the Complainant had not been in contact with the Respondent since they had a call on 17 October 2023, during which the Complainant asked if she could call her back later in the day.   The Complainant did not reply to Ms Kelly’s letter and she commenced a period of unauthorised, uncertified absence which was belatedly certified on 30 January 2024 for the period of 3 October – 25 November 2023.  A medical certificate was provided on 22 January 2024, backdated to 1 January 2024, to cover the month of January.  Another medical certificate was provided by the Complainant on 22 December 2023 to cover the period 25 November 2023 to 2 January 2024.

The Respondent remained in a period of uncertainty, whereby the Complainant remained absent from the business without medical certification.  In a letter from the Respondent’s solicitor to the Complainant’s solicitor dated 22 November 2023, the Respondent expressed these concerns: “Given that your client has not provided any medical certification to explain her continued absence, our client is entitled to assume she is fit to work. However, for reasons that are unknown to our client, your client has not returned to work.”

It is the position of the Respondent that the Complainant’s intermittently certified absence and non-engagement with the Respondent when she was on uncertified leave prevented the Respondent from commencing the investigation into the customer complaint about her that she demanded through her solicitor.  It is the firm position of the Respondent that the Complainant did not react well to the necessity of being placed on a PIP as a result of the customer complaints made about her, and she has attempted to categorise this dissatisfaction as a constructive dismissal, which is grossly unfair.  It is submitted that the Respondent was willing to accede to her request but the Complainant did not engage with the Respondent to enable it to commence an investigation.  The Complainant did not raise a formal grievance, nor did she stay in employment with the Respondent so that it could investigate what she was seeking to be investigated.  Instead, she chose to resign her employment, of her own volition.

It is submitted that there is no evidence to support the argument that the Complainant’s resignation was due to unreasonable behaviour on the part of the Respondent and the Complainant’s complaint of constructive dismissal must therefore fail.

The Respondent submits the Complainant does not appear to advance an argument that the Respondent has breached an express term going to the root of her contract of employment but rather asserts that the Respondent’s conduct was so unreasonable that she was justified in resigning.

The Respondent submits in order to succeed in her constructive dismissal claim therefore, the Complainant must demonstrate that (i) the Respondent's conduct was so unreasonable she had no option but to resign and (ii) the Complainant's resignation was reasonable in the circumstances.  The Respondent submits that the Complainant has manifestly failed to discharge the requisite burden of proof required to substantiate a claim of constructive dismissal.

The burden of proof in such cases is an onerous one, in that a complainant must prove not only that the Respondent’s behaviour was unreasonable, but also that the Complainant’s response in resigning was reasonable. Before embarking on this course of action it is incumbent on the Complainant exhaust all other avenues, in particular any existing “grievance” procedures. This was not done.

The Complainant left the day of the meeting of 3 October and did not return to the business. She did not raise a grievance internally.  The only call for an investigation was, confusingly, made by her solicitor in relation to the customer complaint that was made about the Complainant.  That is not a protected disclosure, nor is it a formal grievance made in accordance with the Respondent’s grievance procedure.  Even if, the Complainant seeks to argue that this request for an investigation constitutes a grievance (which is denied), in multiple exchanges of correspondence between the Complainant and Respondent’s solicitors, the Respondent’s position was that it was willing to accede to the Complainant’s request for an investigation should she return to work and engage.  She was not willing to engage in any process, grievance or otherwise.  Therefore, it cannot be said that she satisfies the burden required of her to exhaust all grievance procedures.  The Respondent was unable to commence an investigation, and/or recommence the PIP, in circumstances where the Complainant remained absent from work, which was, as outlined above, for much of the time, uncertified.

The burden of proof clearly rests with the Complainant and the respondent employer is presumed to have simply accepted the voluntary resignation of the Complainant.  Significantly, in Byrne the EAT noted that while the claimant in this case “may have a grievance to a limited extent, it was not such as to justify or amount to constructive dismissal”.

It is for the Complainant to show on the facts of her case that she meets this threshold as set out above. The Respondent submits that the Complainant has failed to do so insofar as she has not demonstrated, to any degree, that the Respondent’s behaviour was so unreasonable that she was left with no other option but to resign. 

The Respondent is satisfied that it at all times behaved reasonably towards the Complainant.  The Respondent was in a situation where it needed to manage the Complainant’s performance arising from a number of customer complaints made about the Complainant.  The Respondent offered, but at no time coerced the Complainant into, a voluntary redundancy package for her to consider.  The Complainant rejected this offer and went on unauthorised absence.  The Respondent was unable to continue the PIP and/or provide the investigation the Complainant, through her solicitor, was seeking due to this absence.

The Respondent urged the Complainant to reconsider her decision to resign in a letter from its solicitors to her solicitors dated 1 February 2024.   The Complainant chose, of her own volition, to resign absent any of these issues being resolved.  The Complainant did not exhaust the Respondent’s grievance procedure prior to resigning.   It is well established that an employee should give their employer the opportunity to address the matters which ultimately lead to that employee’s resignation by using the employer’s grievance procedures.   It is therefore highly significant that the Complainant never raised a formal (or any) grievance with the Respondent.

Law relied on by Respondent

Constructive dismissal under Section 1 of the UD Act is defined as:

“The termination by the employee of his contract of employment with his 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…”

The following case law is cited by the Respondent in support of its case

Western Excavating (ECC) Ltd. v Sharp[1978] ICR 221

Byrne v Horwath Bastow Charleston Wealth Management Limited UD 67/2014

Murphy v CLI Insurance Services Limited UD 976/2014

Burns v ACM Community Development Society LimitedUD 2166/2011

Winthrop Engineering and Contracting Limited v Kieran Donagher UDD218

A Technician v A Diagnostic Devices Company ADJ-00007537

A Supervisor v A Hotel and Golf Resort ADJ-00006368

Harrold v St Michael’s House UD 1123/2004

An Employee v An Employer UD 720/2006

Conduit Enterprises Limited v A Worker LCR 20855

O'Gorman v Glen Tyre Company Limited UD2314/2010

Ryan Cannon and Kirk Accounting Services Limited v Violeta Kmeite UDD1910,

Rehab v Roberts UDD 20206

Allen v Independent Newspapers (Ireland) Limited [2002] 13 ELR 84

Waterford Senior Care Limited v Liam Tabb UDD1938

OCS One Complete Solution Limited v Bogumil Puka UDD2010

Complaint under the Minimum Notice & Terms of Employment Act

The Respondent submits the Complainant alleges that she did not receive minimum notice of termination of the contract of employment. The Respondent submits that the Complainant resigned with immediate effect and did not provide her statutory notice to the Respondent.  The Complainant has service of less than two years with the Respondent and therefore, in accordance with section 4(2) (a) of the Minimum Notice and Terms of Employment Act 1973 (as amended), the Complainant would be entitled to one week’s statutory notice.  The Complainant’s submissions advance a claim for contractual notice which it is submitted is misconceived.

The Respondent submits the WRC does not have jurisdiction under the 1973 Act to deal with any contractual notice in excess of the statutory notice and does not have jurisdiction to award the Complainant more than one week under the provisions of this Act.  The Complainant cannot advance and the WRC cannot consider a claim for contractual notice pursuant to the 1973 Act.

Without prejudice to the foregoing, the Complainant is not entitled to recover statutory notice in circumstances where she resigned her employment without giving or serving notice.  The Complainant would only be entitled to payment of statutory notice where her employment is terminated by the Respondent or where she served notice and is available to work it.  The Complainant resigned with immediate effect and therefore has no entitlement to notice, either statutory or contractual.

The High Court has determined that an employee who has been “constructively dismissed” cannot claim under the 1973 Act and the Respondent relies on the decision of Murphy J in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] ELR 49 (at page 59) to that effect. For all the above reasons it is submitted that the Complainant’s claim pursuant to the 1973 Act is misconceived and not well founded and should be dismissed.

Complaint under the Organisation of Working Time Act, 1997

The Respondent submits the Complainant had no accrued but untaken holiday entitlement as of 3 October 2024.  The Complainant, in her submission, claims an entitlement to 2.083 days without providing any basis for her claim, which claim is denied.  The Complainant took leave in respect of which she was paid.  The Complainant belatedly categorised this paid leave as sick leave and retrospectively provided medical certification covering the period in question.  The Complainant had no entitlement to be paid for sick leave and as such the one day’s annual leave to which she may have been entitled had she not taken and been paid for this additional leave is not due to her.  Accordingly, her complaint under the Organisation of Working Time Act must fail.

Summary of evidence witness for the Respondent Mr Rolando Ebuna (hereafter RE) on oath

RE outlines a business trip to the UK 27/28 September after the PIP meeting on 26 September.  The witness submits he met with the client on 28 September and two matters were raised one of which had been raised three times in the past in relation to the deadlines for management accounts which was Monday 2 October.  The witness stated there was a requirement to receive them on 27 September to provide time for review and the Complainant had said they would not be ready.  The witness submits the Complainant sent them on the Friday and they received an email on the following Monday questioning the accounts and the Complainant called him and he adjusted the accounts within an hour.  The witness that something that could have taken an hour took 3 days of back and forth.  The client had an issue with working with the Complainant and did not want to work with her anymore.

The witness submits that issues with invoicing had been brought to her attention in June, July, August and September and the PIP was to engage with her and to fix these issues.

The witness submits the supports that were put in place for her were designed to spread the load to service the client properly and the hiring of managers would lighten the load for everybody. 

The witness confirms the taking of clients from the Complainant was not to punish her it was to help her to manage her workload. 

Summary of cross-examination of RE

The witness states the issue of invoicing was not discussed at the PIP in response to a question from the Complainant representative as to whether it was material to the PIP.  The witness submits he offered to provide evidence of the complaint from the client to the Complainant but she said she did not want to hear it.

The witness is asked if he was aware of the issue of the complaint on 2 October to which he replies he had been aware since 28 September.  When asked what he discussed with ROR and the Finance Director the witness submits they discussed next steps that they would talk to the Complainant and make an offer of severance he cannot remember the exact terminology used. 

When asked if there is any reason why he did not attend the meeting on 3 October he states he had already provided everything he knew to his colleagues.  When asked if the new managers were hired to replace or assist the witness submits they were hired to assist.  When asked if the Complainant had more or less clients than other managers he submits it depended on the complexity of the client business and some might have more than others when less complex.  When asked if it was fair to put the Complainant on a PIP the witness submits it was to help her to improve.

Re-direct

The witness confirms there were no customer issues in regard to the other 2 managers. 

Summary of direct evidence of Respondent witness Mr Rodney O’Rourke (hereafter ROR) on oath

ROR outlines he is founder owner manager of the company with a staff complement of 70.  The witness submits it is very much a niche industry with high service levels and service is taken very seriously.  The witness submits there was an escalation of issues on 2 October with displeasure expressed by a client.  The witness submits he had a discussion on the matter with the Finance Director.  The witness submits they asked the Complainant to come into the office on 3 October.  The witness submits the Complainant was invited to a meeting and she was offered voluntary severance two months’ notice and €5000 ex gratia. 

The witness submits they made an error it should have been three months’ notice and their solicitor cured this error.  The witness submits the service reputation of the company was at risk and this was not a performance meeting.  The witness submits the Complainant was uncooperative and confrontational with some of their clients.  The witness states the Complainant was requested to come back by the end of the day and if she did not accept they would continue with the PIP.  The Complainant’s solicitor sent response on her behalf by 4pm that day.  The witness states there were two options stay and work on the PIP or exit and be compensated.  The witness submits the Complainant resigned 4 months later on 31 January.  The witness submits he did not envisage any issues with the Complainant returning to work on the PIP.  The witness outlines there are 125 businesses like theirs out there and that there is a dearth of talent at the moment and there are very strong opportunities for accountants in the market. 

Summary of cross-examination of ROR

When asked by the Complainant representative if this was a redundancy situation the witness replies no that it was a meeting to offer her an ex gratia.  When asked if the Complainant was informed of her right to bring a work colleague to the meeting the witness replied that she could have brought a colleague if she wanted to but she did not.  It is put to the witness that he had said the Complainant was uncooperative and confrontational and asked if he had brought this up with her to which he replies no.  When the witness is asked if he made the comment the Complainant would be exited he replies no.  When asked why the Complainant had not been referred to Occupational Health the witness responds there were a number of weeks for which there were no medical certs and they did not receive medical certs.  It is put to the witness that the medical certs say stress and when asked if he would not consider that someone out on stress should be referred to Occupational Health the witness replies he did not consider it.

When asked if he had HR staff on 26 September, he replied yes that he had a HR administrator. 

Summary of direct evidence of Respondent witness Ms Mairead Lyons (hereafter ML) on oath

The witness outlines her role in the company as that of Chief Legal Officer and a director of the company.  The witness submits issues arose with a client and there were discussions afternoon of the 2 October and 3 October.  The witness submits, in response to earlier comments that dealing with such issues would be below the pay grade of ROR, that he would be very much involved in service issues.  The witness submits that at the meeting on 3 October the Complainant was requested to give a response by the end of the day and if she didn’t accept the PIP would progress.  The witness submits there was no formulation of the words ‘made redundant’ were used during the meeting on 3 October.  The options were to address the issues by voluntary redundancy or continue on the PIP. 

Summary of cross-examination of ML

When asked if she considered it an appropriate amount of time (in which to consider the severance offer) the witness states it was in response to a question from the Complainant and when asked again if she considered it an appropriate amount of time the witness submits she has no view on that.  The witness confirms she is legal counsel in respect of compliance and regulatory matters.

Closing submission of Respondent

The Respondent representative submits the threshold for constructive dismissal is extremely high.  It is submitted the PIP has been conflated with a disciplinary process.  It is submitted there was no requirement or entitlement to be offered accompaniment at any of the meetings and the Complainant did not seek it.  It is submitted there was an error in the initial pitch as the contractual notice entitlement should have been 3 months.  It is submitted the Complainant’s claim of unreasonableness is based on that the Complainant was in a disciplinary process but she never was in a disciplinary process as she was in a PIP. 

It is submitted a significant issue arose for the business and the Complainant was given the opportunity to leave on agreed terms or to continue with the PIP.  It is submitted the Complainant entered into a period of sick leave initially certified and the Respondent sought to engage but the Complainant did not get back in touch.  It is submitted there was a series of legal exchanges and it is submitted the issue around customer complaints did not warrant an investigation as there was nothing to investigate. 

It is submitted the proposal was put to the Complainant to exit on severance which was entirely open to her to accept or reject.  It is accepted there is no grievance procedure and the only issues raised by the Complainant was to have a customer complaint investigated.  It is submitted the Complainant elected to leave and she left.  In regard mitigation of loss it is submitted the obligation is on the Complainant and it is extraordinarily scant and it is submitted there is no evidence whatsoever of mitigation.  It is submitted on day of hearing there were 220 vacancies posted online for qualified accountants. 

CA-00061841-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I have carefully considered the caselaw to which I have been directed by the parties.   I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

I have two versions of events before me that are entirely at odds in most respects having regard to what was said at the meeting that took place on 3 October 2023 attended by the Complainant, ROR and ML. 

The fact that the meeting did take place is the singular fact that is not in dispute.   

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.  Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

The Relevant Law:

Constructive dismissal is included in the definition of “dismissal” at section 1(b) of the Acts, 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 situations envisaged in which a resignation may be considered a constructive dismissal; where the employer’s conduct amounts to breach of contract or repudiation of the contract (the “contract test”) or is such in relation to the employee that it was reasonable for the employee to resign (the “reasonableness test”).  

The Contract Test

The accepted statement of this test is by Lord Denning MR in Western Excavating v Sharp [1978] ICR 221 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  … [T]he conduct must … be sufficiently serious to entitle him to leave at once …”

The Reasonableness Test

Constructive dismissal may arise where the employer’s conduct was such that it was reasonable for the employee to terminate his or her employment.  Lord Denning MR addresses this concept in the same case as follows:

“It is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving.”

It is well-established in this context that there is a reciprocal duty on an employee to act reasonably in terms of affording an employer the opportunity to address any issues.  This is clearly set out in Reid v.Oracle EMEA Ltd [UD1350/2014] where the EAT stated: 

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”  [emphasis added]

In this regard, the Employment Appeals Tribunal in Conway v Ulster Bank Ltd (UD474/1981) held that a complainant had not acted reasonably in resigning “without first having substantially utilised the grievance procedure to attempt to remedy her complaints.

InMary Kirrane v Barncarroll Area Development Co Ltd[UDD1635] the Labour Court held that the person complaining of constructive dismissal must also access available grievance procedures to deal with the circumstances which led him/her to resign.  [emphasis added] 

In Berber v. Dunnes Stores[2009] 20 ELR, the Supreme Court held as follows:

“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 considering whether there has been a constructive dismissal I have to determine whether there has been a repudiatory breach of contract by the Respondent, or, if there has been no repudiatory breach, whether the Respondent engaged in conduct which made it reasonable for the Complainant to terminate her contract. 

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The proofs which the complainant must advance to prove her case are that the behaviour of the respondent and of which she complains corresponds with the requirements laid out in one or both of the two tests and was behaviour which left her with no option other than resignation.

The question I have to consider in the within case is whether the effect of the interactions between the employee and employer at the meeting on 3 October 2023 crossed a threshold so as to damage the relationship to such an extent that it was reasonable for the Complainant to resign. 

The Relevant Facts

I must consider whether there has been a repudiatory breach of the contract of employment.  The Complainant advances a number of reasons to ground her claim of constructive dismissal.  I note the Complainant seeks to rely on the Respondent’s actions, namely the explicit threat of termination of employment, failure to investigate or provide the alleged client complaint, breach of fair procedures with respect to the PIP and the conduct of the meeting of 3 October 2023 all of which are cited as being in breach of the contract test. 

I do not accept the Complainant’s reliance on the failure of the Respondent to investigate the client complaint to ground her complaint.  I am perplexed as to the manner in which this matter became the pivotal focus of the numerous legal exchanges between the parties.  It is an unfortunate reality of such commercial arrangements that a client may simply insist that a certain individual no longer handle their business and they are perfectly entitled to do so if they are not satisfied with the level of service they receive. 

Furthermore, I note that when RE offered to provide evidence of the complaint from the client to the Complainant she said she did not want to hear it. 

It was not made clear to me why the Complainant envisaged there would be an investigation into a client complaint in the first instance particularly as she submitted in evidence that she had worked at a senior level in many Irish companies for 9 years and I would have thought at such a senior level she would have had an understanding of the fundamental importance of customer service and of the expeditious nature of the actions required by a company to address and to rectify deficiencies in same. 

Notwithstanding, I am of the view that the pursuit of customer appeasement does not occur in a vacuum and it cannot be advanced without consideration of the employee. 

I do not accept the Complainant’s reliance on a breach of fair procedures in respect of the PIP to ground this element of her complaint.  I am of the view there was a great deal of confusion in respect of the PIP and in some way the PIP appeared to have morphed into a disciplinary procedure in the Complainant’s understanding or lack thereof.  

It was clarified at hearing that these are two completely different procedures.  The Complainant adduced in evidence that performance issues had never been addressed with her and I note this was not a view shared by the Respondent.  I note the Complainant did accept that performance deficits had in fact been raised with her under cross-examination when a number of specific examples of same were put to her.     

I am of the view there was further confusion on the part of the Complainant on the difference between performance review and performance improvement.   

I note the Labour Court in Luke Glogoski v Boots [UDD 187] held as follows:

” However, in the Court’s view it is for an employer to determine its own standards in terms of what it considers are priority tasks, duties and processes, the importance it attaches to particular tasks, duties and processes and the performance objectives that it sets, subject to those standards being consistently applied and not being unachievable.”

Applying Glogoski to the facts of this case I accept the Respondent was entitled to put their requirements to the Complainant.  It is noteworthy that for the most part areas requiring improvement focus on the Complainant’s responsiveness or lack thereof which is borne out by the evidence adduced by the Complainant herself when she submitted at hearing that she sent in her medical certs “eventually” and when she stated she did not make a call to the Respondent that she had committed to when the Respondent had contacted her. 

I am of the view a PIP is a business driven and a business led initiative.  It is not standard practice that the full panoply of fair procedures afforded in the context of a disciplinary procedure apply in regard to the conduct of a PIP.  I am satisfied it would be extremely rare if not unprecedented that an employee would he provided with the right of accompaniment to a PIP meeting.

 A PIP meeting is between an employee and his/her line manager and it would be most unusual that any employee and in particular an employee at such a senior level as the Complainant would be comfortable discussing perceived performance deficits in the presence of a work colleague.  I am of the view prior notice of the PIP meeting should have been provided to the Complainant so that she herself could have prepared in advance but I am unable to find that failure to do so constitutes a repudiatory breach of contract or behaviour such that it was reasonable for the Complainant to terminate her employment.   

It is not in dispute between the parties that a meeting took place on 3 October 2023.  It is not in dispute the Complainant was offered 2 months’ salary and an ex-gratia payment of €5000 to exit the company.  The terms ‘voluntary severance’ and ‘voluntary redundancy’ were used interchangeably.  For the purposes of this investigation the terminology used is irrelevant.  In fact nothing turns on it.   

I note the words spoken at aforesaid meeting after the proposal was put to the Complainant that she exit from the company are in dispute.  The Respondent submits the Complainant was given until that evening to accept or reject and if she rejected she would go back on the PIP.  The Complainant submits she was given until lunch time to make a decision. 

The Complainant provided three different accounts of the words that were spoken after the offer was made to her.  I note the Complainant instructed her solicitor that she was told by ROR “that even if she refused to take the redundancy package that it would only be a matter of time and that she would be exited regardless.” 

The Complainant’s WRC complaint form provides the “employee has advanced commentary from the Chief Executive Officer that she would be exited through an artificial process that did not respect employment law.” 

The Complainant submits in direct evidence that when asked what would happen if she did not accept the offer she submits she was told “you will be made redundant eventually anyway.”

It is irrelevant for the purposes of this investigation whether I prefer the evidence of the Respondent or the evidence of the Complainant in respect of the words that were spoken in this meeting after the exit terms were put to the Complainant.  I am of the view it is not necessary for me to resolve the inconsistencies in the Complainant’s account nor is it necessary for me to resolve the conflict in evidence between the parties. 

What is not in dispute and on which there is neither conflict nor inconsistency is the fact the Complainant was offered two months’ notice and €5000 to exit the company.  This is the plain undisputed fact.   

In terms of my careful consideration of this matter it is difficult to escape the conclusion the aforesaid undisputed fact is the defining moment where the employment relationship between the Complainant and the Respondent was unequivocally and unambiguously damaged by the undisputed action of the Respondent. 

On the evidence before me I am satisfied that the Respondent’s conduct in terms of the subject matter in the first instance and in terms of the timing of the meeting on 3 October in the second instance is and of itself such as to justify the Complainant’s termination of her employment.  I find the Complainant has satisfied the contract test in terms of the former instance and the reasonableness test in terms of the latter instance.  

I find an employer blindsiding an employee by inviting her to a meeting at short notice, unaccompanied, and offering two months’ pay and €5000 to exit the company to be an action that goes to the very root of the relationship between an employer and employee and utterly undermines the implied term of trust and confidence. 

Furthermore, for completeness, I find the summoning of the Complainant by the Respondent to the meeting on Monday 3 October, which is three working days after she has been placed on a PIP on 26 September, to be the embodiment of unreasonable behaviour on the part of the Respondent. 

I note the Complainant did not raise a grievance.  However, I also note the Respondent’s very comprehensive employee handbook that seemed to cover every eventuality did not contain a grievance procedure.  The Complainant’s contract makes no reference to a grievance procedure. 

I am satisfied the Complainant’s failure to raise a grievance cannot be found to be fatal to her complaint in circumstances where there were no“internal remedies made available to her.” 

I note Statutory Codes of Practice specifically S.I. 146 of 2000 provide that employers should have grievance policies available to their employees.  It is well established that an employee has a contractual, constitutional, and statutory entitlement to fair procedures. S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000, provides that employers should have written procedures for dealing with grievance issues and disciplinary issues reflecting the varying circumstances and outlines the principles of fair procedures for employers and employees generally. 

I find the omission of a grievance procedure from the comprehensive suite of policies and procedures in the employee handbook exhibited by the Respondent to be a striking omission.  In such circumstances it is not unreasonable that the Complainant was unable to initiate a grievance procedure where she did not have access to one as such a procedure did not in fact exist. 

I find that it was reasonable for the Complainant to terminate her employment because of the Respondent’s conduct in and around its decision to offer her an exit package three working days after she has been placed on a PIP in an action taken by the Respondent which any reasonable person would consider to be so serious or significant that it goes to the root of the contract of employment between the employer and employee.  I find the Complainant has met and the Respondent has breached the contract test.  For completeness I find the Complainant has met and the Respondent has breached the reasonableness test also. 

On the evidence before me, I find that the Complainant was unfairly dismissed within the meaning of the Acts.  In terms of remedy in accordance with the provisions of section 7(1) of the Act I am obliged to determine which of the three forms of redress open to me is most appropriate having regard to the circumstances of this case. 

In the circumstances, and in light of the fundamental breakdown of the relationship between the parties, I have decided that reinstatement or re-engagement of the Complainant are not practical options in this case.  Instead, I take the view that compensation is the appropriate redress in this case.

In awarding compensation, I am obliged to award a “just and equitable” amount of compensation in the full circumstances of the case. 

The Relevant Law

Section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, 

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee, 

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, 

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, 

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

Section 7(3) of the Act further states that:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”;

As is clear from the Act, section 7 (1) (c) (i) compensation is for “any financial loss attributable to the dismissal”.  Financial loss is defined as including, actual loss, estimated prospective loss of income and loss or diminution of the rights of the employee under the Redundancy Payments Acts. 

The Complainant’s submits her actual loss amounts to €48,548.55.  The Complainant had not acquired a right to a redundancy payment as she was employed by the Respondent for less than two years.  However, the benefit of one year qualification period for redundancy pay was lost due to her unfair dismissal.  I am also bound to consider that the Complainant by her own admission submits she remained on medical certificate for a further month post resignation.     

In calculating the level of compensation, I take into consideration the efforts of the Complainant to mitigate her losses as I am required to do by section 7(2)(c) of the Act.  In considering the amount of redress to award I must bear in mind the lack of effort by the Complainant to mitigate her loss in the instant case and in particular her lack of effort at securing employment in her proven area of expertise in a market that has no scarcity of such positions as evidenced by the number of vacancies advertised on any given day in a trend in the Complainant’s particular profession that has continued unabated for some time. 

I find the Complainant has failed to produce credible evidence to me that she has made sufficiently rigorous efforts attempts to mitigate her loss when I apply that which is set out hereunder. 

The decision of Coad v Eurobase [UD1138/2013] outlines the duty to mitigate loss under the Act where the Tribunal noted:

“In calculating the level of compensation, the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. “It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

Taking all of the factors set out above into account, I award redress of €17,917.50 as just and equitable compensation for the unfair dismissal.  As this is compensation for loss of remuneration arising from the Complainant’s unfair dismissal it is subject to taxation in the normal way. 

CA-00061841-003 complaint pursuant to section 12 of the Minimum Notice & Terms of Employment Act, 1973

I am mindful of the recent Labour Court case of McGuire Haulage Limited v. Desmond O’Farrell [MND237] where it was held as follows:

“It is not disputed that the Complainant resigned from his employment on 31st July 2021.  The High Court in Halal Meat Packers (Ballyhaunis) Ltd v. Employment Appeals Tribunal and Eamonn Neary [1990] I.L.R.M. 293 found that an employee who has resigned from their employment in circumstances of a constructive dismissal cannot succeed in a claim for minimum notice….in setting aside a decision of the Employment Appeals Tribunal under the Minimum Notice and Terms of Employment Acts.” 

Accordingly, I find this complaint to be not well-founded. 

CA-00061841-004 complaint pursuant to section 27 of the Organisation of Working Time Act, 1977

The Complainant submits she had accrued 2.083 days of annual leave at the termination of her employment for which she is owed €716.55. 

The Respondent’s case is that the complainant received all her statutory entitlement and in fact exceeded her statutory entitlement in the number of days availed of.  The Complainant accepts she availed of more than her 20 days statutory entitlement. 

Accordingly, I find this complaint to be not well-founded.   

CA-00061841-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

For the reasons stated above I decide that this complaint is well-founded.  I award redress of €17,917.50 as just and equitable compensation for the unfair dismissal.  As this is compensation for loss of remuneration arising from the Complainant’s unfair dismissal it is subject to taxation in the normal way. 

CA-00061841-003 complaint pursuant to section 12 of the Minimum Notice & Terms of Employment Act, 1973

For the reasons stated above I decide this complaint is not well-founded. 

CA-00061841-004 complaint pursuant to section 27 of the Organisation of Working Time Act, 1977

For the reasons stated above I decide this complaint is not well-founded. 

Constructive dismissal; upheld; minimum notice does not arise;