Complainant

Respondent

Parties

Dean  Slattery

Liberties Recycling Training & Development Company Limited By Guarantee

Representatives

Stephen Mulvey John L  Mulvey & Company

Gail Maher IBEC

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-00064772-001

12/07/2024

The Complainant submitted the within claim under the Unfair Dismissals Act on 12th of July 2024.

Prior to this  on 30th of January 2024 the complainant submitted a claim pursuant to Section 77 of the Employment Equality Act 1998 (as amended).  This claim of discrimination on grounds of sexual orientation in respect of conditions of employment was lodged.   A claim of harassment on the same grounds of  and of victimisation were also lodged in that claim form.

Further claims were lodged by the complainant on 10th of April 2024.  Two of these claims were taken under the  Organisation of Working Time Act, 1997 specifically relating to annual leave entitlements and compensation for Sunday working.   That claim form also contained a further claim under section 77 of the Employment Equality Act, 1998 taken on the ground of sexual orientation in respect of pay.  The Employment Equality claims are dealt with under a separate Adj reference ADJ-00049962.

All matters were dealt with at the hearing on 2nd of December 2024.

The complainant submits that he was  discriminated against on the grounds of his sexual orientation, in relation to his conditions of employment and that he has been subjected to harassment and victimisation. The complainant is gay.  The within complaint contains a claim of constructive dismissal under the Unfair Dismissals Act.

The Complainant submits that he commenced employment with the Respondent on 16 July 2021, as a Driver/Collector. Prior to his employment terminating, he was on €15 per hour, being €600 per week.   He submits that his pay should have increased to €17 per hour during the period of his paid suspension.

The complainant submits that on or about 14 December 2023, he was  subjected to a hostile, distressing and homophobic incident by a colleague Mr. B, who deliberately grabbed and squeezed his hand violently, when purporting to shake it.

The complainant submits that he told  Mr. B that he was hurting him, but that MR. B then grabbed his hand  all the more and he then made reference to Pope John Paul and shook his other colleague, Mr. C’s, hand in a normal fashion, making the comment "watch how I shake a real man 's hand'.

The complainant submits that  this was a reference to the Complainant's sexual orientation.

The Complainant submits that he was left shocked and distressed by this incident and left the  premises to get a coffee in McDonalds.

The complainant thereafter sent a text to his manager Mr Tom Sheridan (Mr. S) who went across the road and joined the complainant.   The complainant submits that he told Mr. S what had happened and assured him that he would look into it and would speak to MR. B and Mr. C, and so the Complainant returned to work on that basis.

The complainant submits that It is clear however that this incident was not in fact addressed or was certainly not adequately addressed.

The complainant submits that another incident took place on 20 December 2023 when the Complainant after working offsite, returned to the Respondent's premises and was unloading his van, MR. B walked towards him, in an intimidatory manner.  MR. B then made a comment, and the Complainant replied that he didn't want to talk to him after the previous incident which was uncalled for (It is notable that there had been no effort to apologise for this incident).

The complainant submits that MR. B then became extremely angry and aggressive and called the Complainant a 'bitch'.   When the Complainant stated that he was not going to accept that carry on anymore, MR. B ran towards him and assaulted him by grabbing him and pushing him into the van by his neck.  The Complainant hit his knees off the side of the van. The assault continued despite the intervention of other colleagues.   MR. B continued calling the Complainant names such as "bitch".

The Complainant submits that he attempted to walk away but MR. B followed him, continuing with the abuse. The Complainant submits that he was terrified and that several colleagues were required to hold MR. B back. Eventually the Complainant's colleagues brought him into an office, in an effort to remove him from the situation, but MR. B kicked open the door, making a run at the Complainant saying "look at you now".

The complainant was eventually brought to another office, which was locked behind him, to prevent MR. B from getting in but which also had the effect of trapping the Complainant in the said office.

The Complainant submits that he was left shocked and reeling after the incident. The Gardai were called by the respondent but by 7pm had not arrived, meaning the Complainant was left stuck in the office until after 7pm, when he eventually left. The Complainant made a formal statement in relation to the incident to his employer, which he considered to be a complaint.

Following the incident both the complainant and his colleague Mr. B were placed on paid suspension pending an investigation into the incident.  An investigator Mr. Adam Moloney (Mr. M) was subsequently appointed and the complainant was called to a meeting with Mr. M on  9th of January 2024 to take place in the respondent premises.  The complainant objected to attending the premises, but the respondent refused to hold the meeting off site.  The meeting was held in the same room the complainant had been in following the 20th of December incident.

The complainant was called to another meeting on 16th of January again held in the same room on the respondent’s premises

The complainant was called to yet  another meeting on  23rd of January  which he agreed to attend.   A further investigation meeting was then arranged for the 26th of January 2024; however, on the same day, Mr. Moloney needed to reschedule to the 29th of January 2024 for which the Complainant initially confirmed his availability but cancelled on the day advising the respondent that he could not attend due to sickness stating that he had attended doctor and was certified as sick for the week.

Following this the complainant was moved from paid suspension to sick leave and his pay was cut.   The complainant submits that he did not receive his full entitlement to sick pay at  this time but I note that this was later corrected.

The complainant submits that during his time on suspension/sick leave his colleagues were given a pay rise of €2 per hour which the complainant did not receive.   The complainant queried his reduction in pay and the failure to afford him the increase given to his colleagues.  The respondent denied that an increase was given to colleagues.

By email of 1 February 2024  the respondent/investigator Mr M replied to the other issues raised by the complainant by stating that they were following company policies.    The complainant was also informed on this date that the investigation had concluded, and the complainant’s suspension was being lifted and he was free to return to work when certified well enough to do so.   The complainant submits that up to this point he was not given any information regarding the investigation.

On 5 February 2024 the Complainant advised the respondent that he was still unwell and on 6 February 2024, Mr M sought a further update.

On 6 February 2024 the Complainant replied that he was still unwell and would be out for another few days and just had to pick up a cert.

The complainant submits that by further email, later on 6th February 2024, Mr M demanded a medical certificate be submitted by 11 am the following day, which he alleged he needed for payroll. The Complainant took issue with Mr M's position, noting that he was covered for the relevant days. He also noted that he would be with his doctor later in the week as he had had a telephone consultation as he was unwell in bed.

In reply Mr M referred rigidly to Company policy and stated that as it was only the beginning of February, the Complainant was only entitled to 1 paid certified leave day.  The respondent later resiled from  this stance acknowledging that the complainant was entitled to 5 days sick pay which was then paid to the complainant.

The complainant by email of 8 Feb 2024 gave notice of leaving the company and stated that he would not be returning after his sick leave.   The complainant is claiming constructive dismissal.

It is submitted that the respondent’s behaviour was utterly unreasonable on light of the treatment experienced by the Complainant, including homophobic slurs, verbal abuse, physical assault and unjustified suspension. The Complainant replied, setting out his reasonable efforts to comply.

In the circumstances, with no information on the outcome of the investigation and on the understanding that his employer would or could not provide him with a safe environment and utterly distressed by the lack of support, compassion and understanding and the unreasonable positions adopted by the Defendant in relation to his suspension and pay and the breaches of contract that occurred in relation thereto, and by email of 8 Feb 2024, the Complainant gave notice of leaving and stated that he would not be returning after his sick leave.

The Complainant outlined what he had been through and the impact that it had had upon him, including that he was unable to sleep. By email of 14 February 2024, Mr M denied that the Complainant told him that was having trouble sleeping or taking medication. The Complainant was deeply upset by this response.

By further emails of 14 February 2024, the Complainant reminded Mr M inter alia of treatment to which he had been subjected, including the threat to dismiss him, to stop his wages, refusal to meet outside the workplace, causing significant distress to the Complainant, particularly as he was required to sit in the room where he essentially had been temporarily imprisoned due to the conduct of his colleague, and that this had had a huge impact on him, including that he couldn't sleep and required tablets to help him do so.

The Complainant reminded him that he had been crying and assured Mr M that he did tell him this. It was clear, in light of the events leading to his resignation , reinforced by this correspondence, that the Complainant could not reconsider his resignation.

The Complainant was out of work for approximately two weeks. Although he found work quickly, it was at a lower rate of €13 per hour, which is €80 per week less than he was paid with the Respondent and €160 per week less than he would have been paid had he not been denied the increase to €17 per hour received by his colleagues.

The respondent submits that the Complainant commenced employment on the 30th of June 2022 in the capacity of Driver/Collector. He voluntarily resigned his employment on the 08/02/24.    The Complainant’s role entailed collecting a company truck at the company base and travelling to various clothing bank locations within his designated region, emptying the clothing banks and returning to the base.

 The respondent submits that an altercation took place on the 20th of December 2023 between the Complainant and another employee of the Respondent company Mr. B. Both employees were placed on paid suspension pending the outcome of an investigation

 As the Christmas break fell during this time the appointed investigator, Mr. Adam Moloney (Mr. M) was on leave.  Upon his return from leave Mr. M contacted the Complainant on the 4th of January and asked him to attend a meeting with him on the 5th of January 2024 in order to gather information in relation to the altercation.

 The Complainant agreed but then cancelled on the day of the meeting. The meeting was re-arranged for the 8th of January; however, again the Complainant did not attend and when Mr. M tried to contact him four times that day by phone, it rang out on each occasion.

 Mr. M then received a call that evening from the Complainant and the meeting was arranged for the 9th of January. At the meeting on the 9th of January, the Complainant provided a statement of his version of the events of the 20th of December. He also provided a formal complaint to Mr. M against the other employee Mr. B in relation to the same incident.

The respondent submits that within his complaint, there were no details whatsoever and Mr. M explained to the Complainant that this incident was about to be investigated by the company as conflicting reports had been provided in relation to the altercation and therefore the company had an obligation to fully investigate the incident, taking into consideration the statements from both individuals involved and those that would be gathered from witnesses during the investigation process.  The Complainant confirmed he understood this.

Nonetheless, Mr. M provided the company’s Dignity at Work policy and Grievance policy to the Complainant.  The Complainant was then invited to attend an investigation meeting on the 15th of January 2024 and was advised of his right to representation.

 However, the Complainant informed Mr. M that he was unavailable on the 15th of January, so Mr. M rescheduled for the 16th of January.   The respondent submits that the Complainant declined the offer of bringing a representative and the meeting took place as arranged, minutes were taken and signed by the Complainant, and he was provided with a copy.

During this meeting Mr. M referred to an Industrial Relations complaint which the Respondent had received from the WRC in the intervening period,  this was the Respondent’s first indication that the Complainant had any issues with the Respondent.   Mr. M notified the Complainant that the investigation into the alleged incident was still ongoing within the respondent organisation and had not yet concluded and so he questioned the referral of a complaint to the WRC.    The Complainant responded that he had his own reasons for doing so.

Mr. M then invited the Complainant to a follow-up investigation meeting to clarify some further information on the 19th of January 2024. However, the Complainant did not respond until the 22nd of January and a meeting was then arranged for the following day. A further investigation meeting was then arranged for the 26th of January 2024; however, on the same day, Mr. M needed to reschedule to the 29th of January 2024 for which the Complainant confirmed his availability.

On the 29th of January the Complainant informed Mr. M that he would not be attending the follow-up investigation meeting due to sickness and that he had a medical certificate for the full week.    Mr. M wished him well and advised the Complainant that he would be removed from paid suspension and placed on sick leave, in accordance with company policy and asked that he provide his medical certificate in line with company policy.     However, this medical certificate was not provided by the Complainant until the 5th of February 2024.

On the 31st of January the Complainant informed the company that he had not received his full sick pay entitlement, having only received 3 days’ pay for a full week of absence. However, a medical certificate had not been provided to the Respondent at that stage and within his contract of employment it states  that: “There is no uncertified sick leave” .

The Complainant did not provide a medical certificate to the Respondent until the 5th of February, at which stage the company revisited their sick pay policy.  Upon doing so, the Respondent, realising their obligations under their sick leave policy (which had been amended to be in line with the recent Statutory Sick Pay legislation immediately paid the Complainant the additional 2 days’ sick pay which rectified this issue, and they informed the Complainant of same.

On the 1st of February, the Complainant was informed that the investigation into the altercation on the 20th of December had concluded, that it was found that he had no case to answer, that his suspension was lifted and that he could then return to work once he was medically fit to do so.   He was provided with a copy of the investigation report.

However, while on sick leave the Complainant chose to resign from the company on the 8th of February 2024.   The Complainant then lodged his claims with the WRC on the 10th of April 2024.

The investigation concluded on 1st of February 2024 and showed that the Complainant did not have a case to answer, and the other party had the allegations against him upheld.  As the Complainant had informed the company that he was on sick leave from Monday the 29th of January 2024, the Respondent had removed him from paid suspension from that date and placed him onto sick leave. This was explained to the Complainant at the time.

The Complainant provided a medical certificate for 5 days and was initially informed that, due to company policy, he was only entitled to 2 days’ sick pay at that time; however, this was reviewed by the company and, in realising their error they immediately and without delay rectified this in accordance with the Sick Leave Act, 2022 and promptly informed the Complainant of this. 

The Complainant states in his compliant form to the WRC that: “When my employer found out I was seeking help from the WRC they became hell to deal with they even stopped my pay, and I had to fight to get my full sick pay from them…. I never had any issues with them until they found out I was speaking to the WRC I have all my e-mails that is proof”.   Company policy is to provide a maximum of 5 days’ sick pay, which is in line with the Sick Leave Act 2022.

The Complainant was initially informed he was only entitled to 2 days’ pay of the 5 days he was certified, as his sick leave took place in February of this year; however, as soon as the company realised that, in accordance with legislation, the Complainant was in fact entitled to 5 days’ sick pay without waiting for it to be accrued (ie without it being “pro-rated”) they immediately provided this benefit to the Complainant and informed him that they had done so.

The respondent submits that the moving of an employee from paid suspension to sick pay on the production of a relevant medical certificate is a fair, reasonable and correct action to take; there was no discrimination here. 

 Further, the company provided the sick pay despite the fact that the medical certificate was not produced in line with company Therefore, this issue had been resolved.

The Complainant contends that there was an advertisement for his role while he was on sick leave which offered a higher hourly rate of pay than that which he was receiving. The advertisement incorrectly stated the role was for the Leinster area when in fact it was for the Munster area so it is understandable that the Complainant may have come to this conclusion.  However, it was not in fact his role that was being advertised. The Complainant’s role had in fact been temporarily filled by Mr.  S, Manager, for the duration of the Complainant’s absence.   The Complainant’s role was not filled until after he resigned, but he continued to believe this advertisement was in relation to his role.

The Respondent is most surprised by these claims. Not only are the policies and procedures regarding both Dignity at Work and Grievances in place in the company, but the company can evidence that the Complainant was aware of same. The Respondent provided the updated company handbook to all staff in June 2023, which included the Complainant. The Complainant was also provided with an additional copy of the company’s Dignity at Work Policy and Grievance Policy during the investigation for which he was placed on paid suspension.

 He was also provided with a copy of the company Disciplinary Policy. However, he declined to take this, stating that he did not need it as he already had a copy. The Complainant voluntarily resigned from the company on the 8th of February 2024 and on the same date the Respondent again sent him a copy of both the company Dignity at Work Policy and the company Grievance Policy and requested him, on three separate occasions, to reconsider his resignation so that the Respondent might be afforded the opportunity to resolve any outstanding issues through the relevant company policies

The Complainant chose not to make any complaints through the appropriate channels, despite the Respondent having clearly provided these policies directly to the Complainant a number of times and requesting him to utilise them for any issues that needed to be addressed.   On receiving notification of resignation, the company reached out to the Complainant and offered to meet to discuss his concerns in more detail; however, the Complainant never met with the company.

All of these factors combine to illustrate that the Respondent acted reasonably in all its dealings with the Complainant.  The Complainant did not at any point raise an internal grievance before tendering his resignation, and it is the Respondent’s position that his resignation was thus unreasonable.  The Complainant did not act reasonably in resigning his employment as he had not previously “substantially utilised the grievance procedure to attempt to remedy his complaints” (Conway v Ulster Bank) in respect to the specific concerns about returning to work.

Furthermore, upon receipt of the Complainant’s letter of resignation, the Respondent was concerned to become aware of his allegations and made efforts to assist the Complainant in resolving the issues in order to ensure his return to the workplace.

The Respondent requested the Complainant three times to reconsider his resignation and was provided with the company Grievance policy and the Dignity at Work policy on a number of occasions and the Respondent requested to meet with him to discuss his options within both policies. However, the Complainant refused this and continued with his resignation

It is the Respondent’s position that it neither acted unreasonably nor did it breach the Complainant’s terms and conditions of employment such that the Complainant could legitimately resign and seek relief for constructive dismissal.

The Relevant Law – Constructive Dismissal

Section 1(b) provides as follows:

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

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy either one or a combination of both of the following “tests”.

There are two sets of circumstances in which a resignation may be considered a constructive dismissal.  The law is well settled here, and these tests are known as the “contract” test and the “reasonableness” test. 

 The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign.  It is now generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. 

The reasonableness test requires that the employee must satisfactorily demonstrate that the employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  The employee must show that his behaviour/action in resigning was reasonable in all the circumstances. 

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 the English case of Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 Denning J stated:

“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 of more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

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 his contract. 

The complainant at the hearing outlined that he was subjected to 2 separate incidents of harassment by a work colleague Mr. B, on grounds of his sexual orientation.    The complainant advised the hearing that no action was taken on foot of the first incident on 14th of December 2023 where Mr. B had shaken the complainant’s hand aggressively and squeezed it until he asked him to stop.   Mr. B then turned to  another colleague and shook his hand stating, “this is how I shake a real man’s hand”.

The complainant states that he advised his manager Mr. S about the incident and that Mr. S response  that he should mention it to Mr. B.  The complainant advised the hearing that Mr S had undertaken to raise the matter with Mr. B but had not done so.

 The complainant advised the hearing that a second incident took place on 20th December during which Mr. B called the complainant names such as ‘bitch’ and pushed him against a van while grabbing him by the neck.   During this incident members of staff had to intervene to keep the complainant and Mr. B apart.  The name calling and pushing continued into the reception area until the complainant had to be kept in a separate room to keep him away from Mr B .  The complainant told the hearing that despite this Mr. B still managed to kick or push his way into the room and again tried to grab or push the complainant and so he had to be moved again to a different room to keep him safe from Mr. B.

Following this incident the respondent suspended both parties with pay and an investigator Mr. M was assigned to investigate the matters.

I note that the complainant and Mr. B were interviewed as part of the investigation as well as a number of other colleagues who witnessed the 20th of December incident were also interviewed and statements provided in evidence.

The complainant submits that the respondent failed to provide the Complainant with a safe place of work and refers to the harassment he suffered at the hands of Mr. B.   I have already found in favour of the complainant in relation to the harassment claim and made an award in that regard.  The complainant is now asserting that the respondent’s behaviour in this matter was so unreasonable that the complainant could not  fairly be expected to put up with it any longer, and was justified in leaving.

I note from the evidence adduced that the complainant was advised on 1st of February that the investigation was completed and that his suspension was being lifted.

I also note that the complainant at this time was on certified sick leave and had advised the respondent of this.   The respondent had advised the complainant that he could return to work once he was fit to do so.

I note that the investigation found in favour of the complainant and concluded that Mr. Bs behaviour towards the complainant was ‘wholly  unacceptable’ and that could be considered by the company as gross misconduct which may result in the sanction of dismissal.

It was recommended that Mr. B be disciplined for the offence and that this could carry the ultimate sanction of dismissal.

 I note that the complainant was not made aware of this outcome at the time as he was not provided with the investigation report or its findings.

The respondent in its submissions had initially stated that the complainant was  provided with the investigation report on the 1st of February when he was notified that his suspension was being lifted and he could return to work.

The complainant in his prehearing submissions and in his direct evidence at the hearing stated that he was not notified of the investigation outcome and was not provided with the investigation report by the respondent until he received it following a Data access request.

In considering this matter I note that the investigation outcome found in favour of the complainant.   I also note that the complainant did receive a copy the report on foot of a data access request.

It is submitted that the matters complained of  show clear breaches of contract as well as  satisfying the reasonableness test.

The complainant further submits that the matter relating to pay and sick leave also show breaches of contract and establish the unreasonable conduct of the Respondent that satisfies the Reasonableness test. 

As regards the matters relating to pay,  the complainant asserted that while he was on paid suspension he was denied the pay rise awarded to his colleagues.  The complainant asserts that during his suspension the rate of pay increased from €15 to €17 per hour. 

When asked at the hearing why he believed that the rate of pay had increased from €15 to €17 per hour the complainant stated that he had seen an advertisement for his job and that it was advertised at €17 per hour.  The respondent at the hearing clarified that this advertisement  was not for the complainants Job, nor was it a Dublin based driving job but that the advertised job attracted a higher rate of pay  as it involved driving to Munster.   Having considered this matter I  satisfied that the complainant has not established that the respondent breached a term of his contract or behaved so unreasonably as to justify the complainant in resigning his position.   

The complainant in outlining matters relating to sick leave stated that he advised the respondent on 29th of January that he was unable to attend the investigation meeting due to sickness and on 30th of January he advised the respondent that his doctor had certified him sick for the week.   The complainant submits that the respondent behaved unreasonably in this regard by moving him to sick leave.  I note that from 31st of January  the respondent was now on notice that at the complainant was on certified sick leave therefore it is not unreasonable for the respondent to move the complainant from paid suspension to sick leave following such notification.   I note the respondent’s evidence that the complainant was provided with sick pay even though he had not yet sent in a sick cert but had advised Mr. M that he had been to the doctor and was certified sick for the next week. 

I also note that it would not have been possible for the respondent to lift the suspension and request that the complainant return to work during this week as they had already been notified that he was certified sick by his doctor for the week. 

I am thus satisfied that the decision of the respondent to move the complainant onto certified sick leave  following his notification that he was sick and had been certified as such by his doctor for the week  does not amount to a breach of contract and was not unreasonable in the circumstances.

The complainant also advised the hearing that the respondent initially failed to pay him his full sick leave entitlement stating that he was only entitled to sick leave on a pro rata basis and as it was only the start of February he was only entitled to the amount which had been accrued in the month.   However, the respondent later resiled from this position and paid the complainant the remainder of his statutory sick leave entitlement.  I note also that this discussion was ongoing up to 6th of February.

  I note that the respondent advised the complainant on 13th of February that they were reviewing the position in relation to the complainant’s sick pay again. The respondent in this correspondence again asked the complainant to reconsider his resignation and requested that he meet with them to discuss his options under the dignity at work policy.  

 I note also that following this on the 14th of February the respondent notified the complainant that they were going to pay him an additional 4 days sick leave as requested.   The respondent in this correspondence again asked the complainant to reconsider his resignation and also suggested a possible referral to the company doctor to support the complainant given that he was out on sick leave and had notified the respondent that he was having trouble sleeping and was on medication.   Having considered this matter I  satisfied that the complainant has not established that the respondent breached a term of his contract or behaved so unreasonably as to justify the complainant in resigning his position

In addition, the complainant submits that there was also an issue regarding his entitlement to carry over 2 days annual leave.  The respondent in its correspondence denied that there was any entitlement to carryover the two days but conceded this claim at the hearing.  The respondent in this regard referred to the complainant’s contract in this regard and stated that his annual leave entitlements were set out in the contract.   I note that the complainant referred to an agreement he had with management regarding working extra days over Christmas and how he stated that this is what gave rise to the agreement to carry over the 2 days annual leave.   I note that the respondent did not concede this at the time of the complainant’s resignation and maintained its position that there had been no agreement to carry over the 2 days. While I accept that the complainant disagreed with this position I note that the complainant did not lodge a grievance in this regard and did not accept the respondents offer to meet and discuss matters and take time to reconsider his resignation.  

The complainant in advancing a claim that the respondent’s behaviour was unreasonable stated that the failure to provide him with the investigation report or its findings meant that he did not know what he was going back to or if he had been cleared of wrongdoing.   

 I note however that the respondent did advise the complainant on 1st of February that the investigation had concluded and that his suspension was lifted, and he was free to return to work once he was fit to do so. 

The complainant remained on sick leave for approximately a week after this before resigning his employment on the 8th of February 7 days after the respondent advised him that the investigation had concluded and that he could return to work.

 Following this the content of communications between the complainant and respondent centred around the fact that the complainant had stated that he was unable to return to work and had been certified as sick by his doctor and matters relating to sick pay. 

The respondent then requested that the complainant submit a sick cert in support of this which the complainant did not do until 5th of February.   I also note that during all of these communications the complainant who had initiated the complaint which was the subject matter of the investigations did not once ask to see the investigation report or enquire about the outcome.   In this regard I note that the respondent carried out an investigation and a finding was made in favour of the complainant with a recommendation that Mr. B be disciplined with a sanction up to and including dismissal.

The complainant submitted his resignation on 8th of February.  

On receiving notification of his resignation, the company reached out to the Complainant and offered to meet him to discuss his concerns in more detail; however, the Complainant never met with the company.

I note that following his resignation the respondent asked the complainant on 3 occasions to reconsider this decision and return to work. Thus, it would have been clear to the complainant from this that he himself had been cleared of any wrongdoing.

The respondent also encouraged the complainant to lodge a grievance if he felt that issues had not been addressed.    The complainant did not avail of this offer and chose instead to resign his position.

The Contract Test:

Having considered the totality of the evidence adduced here I am satisfied that the complainant has failed to establish that there was  a repudiatory breach of the contract of employment such as would justify the complainant in resigning his employment. 

The Reasonableness Test:

Having considered the totality of the evidence adduced here I am satisfied that the complainant has failed to establish that the Respondent acted in a manner which was so unreasonable as to make it impossible for the Complainant to continue in the employment.    

I find on balance that the complainant was not  entitled to consider himself constructively dismissed within the meaning of section 1 of the Unfair Dismissals Act, 1977 and accordingly I declare this claim to be not well founded.

I find on balance that the complainant was not  entitled to consider himself constructively dismissed within the meaning of section 1 of the Unfair Dismissals Act, 1977 and accordingly I declare this claim to be not well founded.