UDD257

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046778 (CA -00057601-006).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 16 July 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.  A Labour Court hearing took place on 18 February 2025.

The following is the Decision of the Court:-

DECISION:

This is an appeal by Patricia Maher (‘the Complainant’) of a decision of an Adjudication Officer under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that the Complainant’s claim of constructive unfair dismissal by her former employer Blarney Montessori School Ltd (T/A Blarney Montessori Group (“the Respondent”) was not well-founded, as she did not have sufficient service to come within the parameters of the 1977 Act.

The Court heard the appeal on 18 February 2025.

Factual Matrix

The Complainant was employed by the Respondent, a Montessori school, for two academic years.  She worked from 9.00am to 1:00pm, Monday to Friday and was laid off from her employment during school breaks.

The Complainant submits that she was constructively dismissed from her employment in June 2023. The Respondent denies that the Complainant was treated in a manner which amounted to a constructive dismissal.

Preliminary Matter

At the hearing, the Respondent withdrew a preliminary objection which it had raised about the Court’s jurisdiction to hear the appeal having regard to the service criteria at s.2(1)(a) of the Act. The Respondent accepted that the Complainant has sufficient service to ground her complaint under the Act.

The Complainant was employed by the Respondent on two successive term time contracts of employment from 31 August 2021 until 17 June 2022 and from 29 August 2022 until the Complainant’s resignation on the 23 June 2023.

Position of the Complainant

The Complainant submits that she was constructively dismissed from her employment after the Respondent unilaterally deducted her wages and damaged her reputation by removing her from a parents WhatsApp group.

On 23 June 2023, the Respondent school closed early for the summer holidays and the Complainant finished work at 11:30am. She was normally paid for her full contracted hours whenever the school closed early for holiday periods. She realised that her wages were short by half an hour that day, as she was only paid to 12:30pm and had not received a pay slip. When she queried the matter with the Respondent, she was told that all staff were paid up to 12:30pm.

The Complainant was entitled to receive full pay until 1:00pm and the Respondent's assertion that she was entitled to pay until 12:30pm was incorrect. She queried the matter with colleagues who all said they were paid in full up to their contracted hours. She felt vulnerable and ambushed for raising the pay query with the Respondent, as she was summoned to attend a meeting later in August for questioning the shortfall

Later that day, the Complainant discovered that the Respondent had removed her from the parent’s WhatsApp group, which was an essential tool to communicate with parents. When the Complainant queried why this had happened, she was told that she was being aggressive and hostile. The Complainant submits that the damage to her reputation was done at that point

The Complainant’s removal from the parent’s WhatsApp group was an act of retaliation by the Respondent for raising an issue about her pay. Her removal from the group, which had forty-one participants including five colleagues, impacted her reputation and represented a demotion as she could not perform her duties as per her contract of employment. As such, it constituted a breach of her contract terms. The Complainant refutes the assertion made by the Respondent that she was removed from the parent’s WhatsApp group because it was the summertime.

The Complainant declined to attend a proposed meeting in August about her alleged aggression as she felt that, if she did so, her reputation as a childcare worker would be destroyed and her career in the early years sector would be over. She felt that the purpose of the proposed meeting was a disciplinary in nature and not just about her pay query. The meeting was unwarranted and violated the disciplinary code of practice. She was not told the purpose of the meeting. She had no right of response to the false allegations made.

The Complainant submits that her contract terms were irrevocably broken when she was removed from the WhatsApp group and that her removal from the Parent’s WhatsApp group, together with the untruths about the underpayment of her wages broke an implied term of trust and confidence. There was no obligation on her as an employee to repair that breach of trust, in circumstance where her employer had demonstrated that it no longer intended to be bound by the terms of her contract.

The Complainant had no option but to resign her employment and submitted her resignation on 25 June 2023.

Position of the Respondent

On 23 June 2023 the school closed for the summer term. All children finished at 11:00am. Staff were advised that if they had all necessary work up to date they could leave as early as possible.

The Complainant was offered, along with all the other staff members, a full day’s pay if she stayed on to clean. The Complainant elected to finish at 11.30am but was paid, along with all other staff, until 12.30pm, as ECCE payments only apply until 12.30pm.

That afternoon, at 15.24pm, Marguerite Morley received a text from the Complainant asking for her payslip. Due to an issue with the Respondent’s accountants, payslips had not issued to employees that day. The Complainant was sent a copy of her payslip.

After receiving her payslip, the Complainant messaged Ms Morley to say that she was paid for 19 hours instead of her usual 19.5 hours. Ms Morley advised the Complainant that everyone was paid up to 12:30pm, due to the early closing time that day. The Complainant expressed a view that her pay had been docked, which had caused her to question how much she was valued. Ms Morley replied to advise the Complainant that she had sent her €6.75 - the amount of the alleged underpayment - and that she valued her efforts. Ms Morley further stated that she did not appreciate the manner of her correspondence and proposed that they meet in August prior to returning to work to which Complainant replied, ‘good luck’.

The Complainant was removed from the parent’s WhatsApp group as it was not in use over the summer period.

On 25 June 2023, the Complainant resigned her position citing her removal from the WhatsApp group as the reason for her resignation. On 26 June 2023 the Complainant emailed the Respondent formally resigning her position. The Complainant subsequently contacted Ms Morley to say goodbye.  The Complainant declined to engage in a meeting with the Respondent to discuss her grievances. The Complainant later asserted that she felt she was being threatened about ‘getting a talking to in August.’

The Respondent wholly denies that the Complainant was constructively dismissed. The Respondent at all times acted reasonably. The Complainant alleged that she was underpaid by €6.75, the equivalent of half an hour’s wages. This sum, although not due to the Complainant, was paid promptly after her complaint. The Respondent immediately and promptly addressed the Complainant’s grievance regarding an alleged underpayment and, as a gesture of goodwill, paid the Complainant the amount she alleged she was underpaid.

The removal of the Complainant from the parent’s WhatsApp group did not entail any infringement of the Complainant’s rights or ability to perform her duties as at the time she was not working for the summer. Her removal from the group only occurred after the Complainant declined to meet with the Respondent to discuss her concerns.

The Complainant’s grievance about her pay was immediately and promptly addressed by the Respondent. The Complainant failed to meet with management to resolve any other grievance she may have had. She failed to exhaust the internal procedures available to her before resigning and as such cannot be seen to have acted reasonably in resigning. The Complainant has failed to demonstrate that the Respondent acted in such a way that no ordinary person could have continued working for the Respondent. The assertion that she was constructively dismissed is wholly unfounded.

The Law

Section 1(b) of the Act defines a constructive dismissal for the purposes of the Act as follows: -

“(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”.

Section 6(1) of the Act states:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Deliberation

Where the fact of dismissal is in dispute a Complainant must establish that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.  To succeed in a claim of constructive dismissal under the Act, a Complainant must demonstrate that her decision to resign her employment resulted from either a repudiatory breach of her contract of employment by the employer or such unreasonable behaviour by the employer that she could not fairly be expected to put up with it any longer.

In Berber v Dunnes Stores [2009] IESC 10, the Supreme Court held:

‘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 assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

 1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

The Complainant submits that she resigned her employment because of two factors; firstly, she did not accept the explanation given to her by the Respondent about a shortfall in her wages on Friday 23 June 2023 and, secondly, her removal from the parent’s WhatsApp group on the same day damaged her reputation and amounted to a fundamental breach of her contract of employment. 

The question for the Court to consider in this case is whether the interactions between the employee and employer crossed a threshold to damage the relationship to such an extent that it was reasonable for the Complainant to resign.

The disputed wages

In response to questions from the Court, the Complainant accepted that the issue she raised about an alleged shortfall in her wages on 23 June 2023 was resolved by the Respondent that day. Her position was that she did not accept the explanation given to her by the Respondent.

A series of messages exchanged between the Complainant and the Respondent in the two-day period from Friday 23 June to Sunday 25 June 2023, when the Complainant resigned her position, was opened to the Court. The parties accepted that those messages represent the full extent of communications between the parties in that period.

The Complainant accepts that after she raised the query about her wages, the Respondent proposed that they meet in August prior to the school re-opening in September to discuss that matter. The Complainant replied to that message to say, “good luck”. She contends that her reply was meant to convey the difficulty of arranging a meeting in August, rather than a refusal to meet per se. 

In a message sent to the Complainant sent on Sunday 25 June 2023 the Respondent stated “…It is very disappointing how the last day of the year ended up. But I feel for everyone's sake this should be parked for a few days. We can revisit this during the week I hope you're OK. Will chat after the weekend. Claire."

Later that day, the Complainant resigned her position.  On Monday 26 June 2023 the Complainant wrote to the Respondent by email to formally confirm her resignation, stating as follows:

“This letter is to let you know that I am resigning from Blarney Montessori school from Monday 26th June.

I am giving you two months notice in order to facilitate hiring a new teacher.

I wish to thank you for the opportunity and say that I learned a lot working with you.

I would also like to express my thanks to the staff and the parent.

I really enjoyed working in Blarney Montessori and I will especially miss the children.

I wish you both all the best. (sic)”

While the Complainant submitted to the Court that the proposed meeting in August was a disciplinary in nature, she provided no basis to support that assertion. She accepted that she was not asked to attend a disciplinary meeting, nor was she ever subject to a sanction under the disciplinary procedure.

In normal circumstances a Complainant who seeks to invoke the reasonableness test in furtherance of such a constructive dismissal claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. There is an onus on an employee to give an employer an opportunity to resolve issues before resigning from their employment. In the view of the Court, the decision by the Complainant to resign her position when she did was premature.

On the uncontested facts as presented in this case, the Respondent offered to meet with the Complainant to discuss her outstanding issues. The Complainant did not avail of the opportunity to meet with the Respondent. 

On the facts as presented, the Court finds that the Respondent did not engage in behaviour that was so unreasonable as to warrant the Complainant’s resignation.

Removal from the WhatsApp Group

The Complainant asserts that her contract of employment was effectively terminated on 23 June 2023 when she was removed from the parent’s WhatsApp group which she contends damaged her reputation and amounted to a fundamental breach of her contract of employment as the trust between the partes was irrevocably broken. 

The test by which a repudiatory breach of contract can be identified was set out by Lord Denning M.R. in Western Excavating Limited (ECC) v Sharp [1978] IRLR 332 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 as discharged from any further performance.”

At the hearing, the Respondent confirmed that the Complainant was removed from the WhatsApp group because of the language and tone of her messages to the Respondent on 23 June 2023, rather than the closure of the school for the Summer holidays.

While the Complainant was clearly unhappy and upset about her removal from the group, the Court had some difficulty with her assertion that the Respondent’s actions amounted to a demotion or gave rise to such a fundamental breach of her contract of employment that the trust between the partes was irrevocably broken.  No facts were presented to support the Complainant’s assertion that she was subject to any demotion. Furthermore, it is difficult to see how her removal from the WhatsApp group prevented her from carrying out her duties in circumstance where the school had closed for the Summer period, the Complainant was laid off from her work, and there was no requirement for her to carry out any duties.

While the Complainant may have had concerns about her reputation amongst other members of the WhatsApp group, having regard to the facts as presented, the Court cannot find that her removal from the group gave rise to a breach of her contractual terms of employment or represented such a breach of trust such that she was entitled to regard herself as having been dismissed by the Respondent.

Having regard to the facts of this case and the high bar set by the authorities in constructive dismissal cases, the Court finds that the Respondent did not repudiate the Complainant contract of employment or behave in such an unreasonable manner such as to warrant the Complainant’s resignation on 26 June 2023. 

Accordingly, the Court finds that the complaint is not well founded.

Decision

For the reasons set out above, the Court finds that the Complaint is not well founded.

The appeal fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
31 March 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.