Complainant

Respondent

Parties

Kian  Pettit

Gemini Payments Europe Limited

Representatives

Cillian McGovern B.L. instructed by  Crushell & Co Solicitors

Owen Keaney B.L. instructed by Byrne Wallace Shields LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00070464-001

01/04/2025

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

CA-00070464-002

01/04/2025

The complainant is a financial services and compliance professional. Prior to joining the respondent, he held senior roles including Chief Compliance Officer (EMEA) at a leading global investment firm. He commenced employment on January  8th, 2024 as Head of Compliance & Money Laundering Reporting Officer and his employment ended on February 28th, 2025, following his resignation the day before.

The complainant understood that Ireland was to be the respondent’s European headquarters and that his role would involve leading strategy for the group’s European operations under the new MiCA framework.

Throughout the first half of 2024, he reviewed the MiCA regulations to assess their likely impact on the respondent’s European business model and prepared a detailed internal analysis (the “MiCA Assessment”) which identified a number of compliance issues that would arise for the respondent under the new EU regime. This was shared with external counsel, who agreed with its conclusions. The findings were subsequently presented to the global leadership in May 2024.

Initially, his performance was recognised positively. In July 2024, he received a 5% salary increase and pro-rata performance bonus. However, shortly after this, he and the European leadership team became aware that the respondent’s global executives were considering a relocation of the company’s regulatory operations from Ireland to Malta, and he became aware  that future compliance oversight for the European crypto asset business would be outsourced to a third-party consultancy firm there.

This decision was made without any consultation with him, despite his statutory responsibilities. It became apparent that his core duties were being transferred to external parties. From mid-2024 onwards, he experienced a reduction in his responsibilities. Meetings, correspondence, and projects central to his position were reassigned or handled by others. His role became largely administrative in nature, limited to compliance oversight of the  e-money business in Ireland, a function significantly less complex and smaller in scope than the one he was hired to perform.

Between July and December 2024, the complainant raised repeated concerns with the Global Chief Compliance Officer that he had been excluded from the Malta project and that decisions were being made that altered his role.

On October 3rd, 2024, the CCO invited him to a further meeting to discuss his concerns specifically about the “MiCA – Malta” project. Following this the CCO arranged a senior meeting on October 11th,  2024, attended by the complainant and other senior managers  to address the complainant’s exclusion and the deterioration of his role.

During the meeting, the GC acknowledged that communication had been “very poor,” and the COO emphasised the Complainant’s importance to the company’s European operations. Both assured the Complainant that his concerns would be addressed and that he would have meaningful oversight of compliance in the EU. The CCO agreed that the situation required correction and suggested that the company “rethink” its approach to compliance in Malta. Despite these assurances, no corrective action was ever taken.

By December 2024, the complainant’s circumstances had worsened. He learned through the EU CEO that the company’s HR function had declined to intervene, acknowledging that decisions affecting the EU leadership were being made by the most senior executives globally and were outside HR’s remit.

On December 17th, 2024, during one of his regular meetings with the CCO, the complainant again raised concerns about the erosion of his role. The CCO acknowledged that his position had “not materialised as intended,” confirming his view that his role had been effectively dismantled.

By January 2025, his responsibilities had been entirely undermined. His core functions were outsourced, and he was excluded from any involvement in the compliance framework for the Malta project. Having exhausted all reasonable avenues internally, he concluded that his employment had become untenable. On January 27th, 2025, he tendered his resignation, citing the complete removal of his duties and the adverse treatment he had experienced since raising concerns.

He says that his treatment constituted penalisation as defined under the Protected Disclosures Act 2014, arising directly from his having raised concerns relating to regulatory compliance, including issues affecting the respondent’s adherence to EU financial regulations and its obligations under MiCA. He asserts that, following his protected disclosures and internal challenges to compliance practices, his responsibilities were systematically diminished, he was excluded from key functions, and his role was ultimately outsourced.

He further contends that these actions amounted to constructive dismissal under the Unfair Dismissals Act 1977. The cumulative effect of the respondent’s conduct,  including the unilateral removal of responsibilities, exclusion from projects, failure to address legitimate grievances, and the complete alteration of his position, rendered the continuation of employment impossible. He had no reasonable alternative but to resign.

The complainant submits that his resignation was the direct result of the respondent’s conduct and therefore constitutes a dismissal within the meaning of the Act.

He also submits that the respondent’s actions were retaliatory, motivated by his having raised protected concerns, and ultimately forced him to resign and that his resignation was the direct consequence of the penalisation he suffered following his protected disclosure.

Under section 12 of the Protected Disclosures Act, 2014, an employer is strictly prohibited from subjecting an employee to any detriment, such as a reduction in duties, exclusion from core functions, or any adverse change to working conditions, because they made a protected disclosure. These cumulative acts constitute penalisation within the meaning of the Act, which, consistent with the broad interpretation of detriment across Irish employment law, includes any disadvantage arising from whistleblowing.

Where penalisation renders an employee’s position untenable, a consequent resignation is treated as a dismissal. The erosion of the complainant’s role, the sustained exclusion from strategic decision-making, and the ongoing failure to address his repeated concerns left him with no viable alternative but to resign. Accordingly, his forced departure forms part of, and flows directly from, the unlawful penalisation he experienced, grounding both his protected disclosures claim and the constructive dismissal that followed.

In Conway v The Department of Agriculture, Food & the Marine, [2020] IEHC 665 Ms. Justice Hyland addressed the question of what does and does not constitute a “detriment”. She confirmed that in order for a claim of penalisation under the Protected Disclosures Act 2014 to be successful, a plaintiff must prove that they have suffered a detriment. She concluded that the ordinary meaning of detriment connotes ‘harm or damage.’ In addition, it is clear that “an unjustified sense of grievance cannot amount to a detriment” - See BarclaysBankplcvKapur and others (No 2) [1995] IRLR 87 and Shamoon v Chief Constable of the Royal Ulster Constabulary[2003]ICR337.

In the case of Barrett v Commissioner of An Garda Siochana [2023] IECA 112, which is a Court of Appeal judgment, Ní Raifeartaigh J. addressed “the nexus or connection between the alleged protected disclosure and the alleged detriment suffered” (para 111 of the judgment). Early on in her judgment, Ní Raifeartaigh J. quoted from Clarke v CGI Food Services [2020] 3 IR 389, where the decision was given by Humphreys J. That case, Clarke, was a case where a disciplinary process was allegedly initiated by way of detriment following the making of a protected disclosure.

In the Clarke case, Humphrey’s J. had stated at paragraph 19 of the judgment of the Court:

“The employerclaimsthat the dismissalof the plaintiff was due to performance issues, but it is alsoclearthatthecomplaintaboutperformanceonlybeganaftertheplaintiffstartedraising awkwardquestions.Unfortunately, it is not difficultto“performancemanage”someoneoutof a job. Such a process is manipulative, of course, and insofar as it impacts on an employee’s wellbeingitisbullyingandabusive;butdecision-makershavetobealiveastohowrelatively easy it is to remove somebody from a position for ostensibly plausible reasons. On the other sideof theequation, itis possible forsomeonewho is dismissed forlegitimate reasonsto claim that removalwasduetosomeimproperpurpose,ortocharacterisetheimpositionoflegitimately high standards as the infliction ofstress and bullying. The upshot really is that thecourt must lookbeyondmerefacevalueoneitherside.”

In Barrett, Ní Raifeartaigh J. stated (para 100 of her judgment):

“I agree with Humphreys J. that a court dealing with an alleged connection between a protected disclosureandsubsequentdisciplinaryactionmustbealivetothepossibilitythattheremaybe motivationsonthe partofthe employerwhichare hiddenandnotobvious at first sight.Acourt should look not only for obvious or explicit connections between protected disclosures and subsequenteventsbutshoulddrawsuchinferencesasmaybeappropriatefromallofthe evidence.Attheinterlocutorystage,thisinvolvesdoingsototheappropriatestandardofproof. However, I also agree withHumphreysJ. when he saysthat on the other side ofthe equation, it ispossibleforsomeonewhowasdismissedforlegitimatereasonstoclaimthatremovalwas someimproperpurpose,andthatacourtshouldbecarefultolookatthematterfromall angles.”

Specifically in relation to the nexus or connection between the alleged protected disclosure and the alleged detriment suffered, the Court in Barrett had been referred to some English cases where the precise formulation of the test in this regard was debated:- ChiefConstableofWest Yorkshire v. Kahn [2001] 4 All ER 834, Manchester NHS Trust v. Fecitt [2011] EWCA 1190, and Jesudason v. Alder Hey Children’s Foundation Trust [2020] EWCA Civ 73.

Ní Raifeartaigh J. quoted from Jesudason v. Alder Hey Children’s Foundation Trust [2020] EWCA Civ 73 in which that court had summarised the position as follows:

“29. Theremustbealinkbetweentheprotecteddisclosureordisclosuresandtheact,orfailure to act, which results in the detriment. Section 47B [of the Employment Rights Act 1996] requires that the act should be “onthe ground that” the worker hasmade the protecteddisclosure.The leadingauthorityisthedecisionoftheCourtofAppealinFecittvNHSManchester(Public Concern at Work intervening) [2012] ICR 372 where the meaning of this phrase was consideredby Elias LJ (with whose judgment Mummery and Davis LJJ agreed). There was a debate whether the test for detrimentsshort ofa dismissalshouldbethe same asthetest wherethe alleged victimisationtooktheformofadismissal,whenthequestioniswhethertheprotected disclosureisthereasonortheprincipalreasonwhytheactionwastaken;orwhetherthetest shouldreflectthemuchlooserlinkadoptedinthediscriminationlawfield.EliasLJpreferredthe latterapproachandsummariseditasfollows(para45):”

“Inmy judgment,thebetterviewisthatsection47Bwillbeinfringediftheprotecteddisclosure materiallyinfluences(inthesenseofbeingmorethanatrivialinfluence)theemployer's treatment of the whistleblower.”

As Lord Nicholls of Birkenhead pointed out in Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065, para 29, in the similar context of discrimination on racial grounds, this is not strictly a causation test within the usual meaning of that term; it can more aptly be described as a “reason why” test:

“Contrarytoviewssometimesstatedthethirdingredient(‘byreasonthat’)usuallyunderstood. Causationis aslipperyword,butnormallyitisusedtodescribea legal exercise.Fromthemany events leadings, upto thecrucial happening, the courtselectsoneormoreofthem which the law regardsas causativeofthe happening.Sometimesthe courtmaylookforthe‘operative’ cause,orthe‘effective’cause.Sometimesitmayapplya‘butfor’approach.ForthereasonsI sought to explain in Nagarajan v London Regional Transport [1999] ICR 877, 884–885, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases ‘onracialgrounds’and‘byreasonthat’denoteadifferentexercise:whydidthealleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person actedashedidisaquestionoffact.

Liability is not, therefore, established by the claimant showing that, but for the protected disclosure, the employer would not have committed the relevant act which gives rise to a detriment. If the employer can show that the reason he took the action which caused the detriment had nothing to do with the making of the protected disclosures, or that this was only a trivial factor in his reasoning, he will not be liable under section 47B.”

While cognisant of the consignable period, the complainant maintains that a variety of issues outside of that timeframe should be considered by the WRC, per County Cork VEC v. Hurley EDA 1124 (in which there are a series of separate acts or omissions which, while not forming part of the regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum).

Complaint under Schedule 2 of the Protected Disclosures Act, 2014 (CA-00070464-001)

The Complainant briefly contends that he was penalised by his employer having made a Protected Disclosure.

Having raised the aforementioned regulatory concerns with respect to Gemini’s ability to comply with the impending MiCA regulations, a decision was made by Gemini to relocate its crypto asset business from Ireland to Malta, in search of a “more friendly regulator” in Europe; As a result, Gemini’s Legal Function decided to outsource my role to an external third party, RMC Wise, in  Malta, without engagement or consultation with me, I was subsequently excluded from all aspects of Gemini’s Malta / MiCA project.

I firmly believe that I was penalised by reducing my responsibility within the workplace significantly, having raised regulatory concerns at my MiCA Assessment. I am therefore seeking adjudication by the Workplace Relations Commission, under Schedule 2 of the Protected Disclosures Act, 2014.”

The complainant asserts that he was subjected to penalisation contrary to section 12 of the Protected Disclosures Act 2014, which prohibits any act or omission that disadvantages an employee because they made a protected disclosure. A disclosure is presumed protected under section 5(8) unless the employer proves otherwise, and the employee’s motivation is irrelevant under section 5(7).

The complainant made a disclosure relating to regulatory compliance concerns arising under MiCA. His internal assessment was validated by external counsel and brought to the attention of senior management. Shortly thereafter, a clear pattern of adverse treatment began, including the outsourcing of his role, exclusion from key regulatory projects, deterioration of responsibilities, and the dismantling of the EU leadership cohort. Each of these measures constitutes detriment for the purpose of penalisation.

The definition of penalisation in Irish employment law is broad across multiple statutes and includes:

“Unfair treatment,” “Unfavourable changes in conditions,” “Detriment,” Exclusion,” and “Reduction in responsibilities.”

While the precise case law underpinning protected disclosures is emergent, the general principles of penalisation across employment statutes are well developed. (Examples were given).

Moreover, the case law interpreting penalisation emphasises causal connection rather than the employer’s intention. Once facts are established from which penalisation can be inferred, the burden shifts. This mirrors the reasoning in victimisation decisions under Employment Equality Act section 74, which interpret detriment broadly and require only that adverse treatment followed protected activity.

Here, the timing, scale, and nature of the adverse treatment strongly support an inference of penalisation. Immediately after raising regulatory concerns, the complainant’s responsibilities were stripped away, his role was outsourced, and he was excluded from the very programme he was hired to lead. The employer has not identified any legitimate non-retaliatory explanation for these drastic measures.

Accordingly, on the balance of probabilities, the detriment suffered was “because of” the protected disclosure. The complainant was therefore penalised within the meaning of the Protected Disclosures Act 2014.

 Complaint under Section 8 of the Unfair Dismissals Act, 1977 (CA-00070464-002)

The Complainant contends that due to the conduct of his employer, he had no option but to resign.

The starting point is the statutory definition of constructive dismissal under section 1(b) of the Unfair Dismissals Act 1977, which provides that a resignation may constitute a dismissal where, “because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable… to terminate the contract of employment without giving notice.” The jurisprudence reflects that this imposes a high threshold, placing the burden on the employee to prove that resignation was the only reasonable option.

In Berber v Dunnes Stores [2009] 20 E.L.R. 61, Finnegan J. confirmed that the employer’s conduct must be “unreasonable and without proper cause,” and its effect on the employee must be assessed “objectively, reasonably and sensibly.” In Mr. Pettit’s case, the unilateral removal of core responsibilities, the outsourcing of his statutory role without consultation, and the complete exclusion from the MiCA/Malta project clearly meet this threshold. These actions undermined the essential terms of his contract and the mutual bond of trust and confidence expected in senior regulatory roles.

Evidence of Complainant

The complainant gave evidence on affirmation.

He said that he was a financial regulatory professional and head of compliance for the respondent for all EEA and EU matters. He explained that MiCA is a pan European regulation governing his industry. The respondent’s role is to buy sell and hold crypto assets and generates revenue on fees for this transfer. His role was to get the company registered.

The term ‘pause improvement’ is an obligation in relation to certain profits that might be unexpectedly generated.

He confirmed that his role was to ensure that his employer was compliant with MiCA.

The complainant said that he was the author of the report submitted in evidence  and referred to the conclusions.  This report was seen by the European senior leadership team.

Following that he described the fallout as being total silence and a failure to engage with him by the senior management team. He did not see any documentation for the Malta registration.

In due course he had a number of exchanges (as set out in the submission above) in which he raised concerns and the possible risk of a breach of the regulation. He described his role as evaporating and despite the meetings with management nothing changed. In due course he resigned.

He was successful in gaining employment almost immediately on leaving the respondent.

In response to a direct question from the Adjudicator he confirmed that he did not see himself as having made a protected disclosure in writing the report.

The respondent noted the complainant’s role as Head of Compliance for the respondent and submitted that neither the complaint form nor the respondent’s written submission disclosed any Protected Disclosure.

In the correspondence from the complainant’s legal representative in January 2025 there was no reference to a Protected Disclosure.

The assessment and report undertaken by the complainant in relation to MICA compliance was to address a new regulatory framework and was no more than due diligence and good business practise on the part of the respondent.

On foot of this it is true that the respondent decided to register in Malta, but it was entirely lawful for it to do so.

In relation to the alleged diminution of the complainant’s role, this is denied. There are now three employees engaged in the function formerly carried out by the complainant.

The respondent says that the complaint has not met the threshold of evidence.

In order for a complaint of penalisation to succeed there has to have been protected disclosure.

The complainant did more than carry out his duties as head of compliance in compiling the report on which he now relies as a protected disclosure. In fact, it does not disclose any protected disclosure or any proposed wrongdoing as required by the statute.

The complainant only raised the issue of a protective disclosure two months after his resignation to support this complaint against the company. The respondent repeats that his role did not evaporate.

Regarding the complaint of unfair dismissal there was no breach of contract sufficient to justify his resignation and he quit his employment with the respondent on securing a role elsewhere that was better paid than his role with the respondent.

The facts are as set out above and are not significantly in dispute.

The starting point is the report compiled by the complainant in his capacity as Head of Compliance with the respondent.  Both complaints are predicated on the assertion that this report disclosed facts that meet the criteria in The Protected Disclosures Act as a ‘relevant wrongdoing’ and subsequently led to events which justified the complainant’s resignation.

There are a number of problems with this assertion.

The first is that the complainant carried out this work in his role as Head of Compliance and in connection with his primary role in the company and this creates an obvious difficulty for him having regard to Section 5 of the Protected Disclosures Act, 2014.

Secondly, a possible exposure to a regulatory sanction, or an anticipated difficulty in getting regulatory approval in the event of certain actions or transactions being undertaken is several stages away from a ’relevant wrongdoing’ as required by the Act.

The relevant section of the complainant’s report reads  that

Senior management within GIEL are of a strong view that the current treatment of price improvement would not be considered compliant with the aforementioned MiCA regular regulatory requirements. Accordingly all price improvements observed on Gemini's order book must be passed on to EU domiciled retail customers given that GIEL will be legally required under MiCA to receive to achieve the ‘best possible outcome’ for customers.

To the non-technical eye, this discloses nothing resembling an actual or proposed future wrongdoing. It expresses a concern about possible non-compliance in relation to something which has not actually happened, and as noted, in respect of which it is the complainant’s core role to provide advice.

Thirdly, and critically, the complainant answered a direct question as to whether he was making a Protected Disclosure in the negative.

While his Counsel observed it may be possible to make a disclosure without fully intending to, having regard to the cumulative impact of the facts of this case this one is not among them.

The Protected Disclosures Act 2014 provides a good flavour at Section 3 of the nature of ’relevant wrongdoings’ for the purposes of making a protected disclosure.

They include.

(a)    That an offence has been, is being or is likely to be committed.

(b)    That a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work.

(c)    That a miscarriage of justice has occurred, is occurring or is likely to occur.

(d)    That the health or safety of any individual has been, is being or is likely to be endangered.

(e)    That the environment has been, is being or is likely to be damaged.

(f)     That an unlawful or otherwise improper use of finds or resources of a public body, or of other public money, has occurred is occurring or is likely to occur.

(g)    That an act or omission by or on behalf of a public body is oppressive, discriminatory, or grossly negligent or constitutes gross mismanagement, or

(h)    That information tending to show any latter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

There was nothing revealed in the complainant‘s evidence that meets any of the criteria set out in the Act. Nor, as just noted was there any evidence of intention to make a disclosure. Indeed, the complainant admitted as much at the hearing with commendable candour.

Accordingly, I find with relative ease that the complainant did not make a Protected Disclosure, and accordingly, the question of any subsequent actions which may be seen as penalisation (hotly disputed by the respondent ) does not arise.

In relation to the complaint of constructive unfair dismissal the facts are that the complainant started a new job immediately on leaving the respondent. These facts strongly suggest that he had applied for and was successful in securing this new position while still working for the respondent.

This would not, of itself, rule out a complaint of constructive unfair dismissal.

In his complaint form, under the heading ‘Attempts to resolve Internally’ the complainant says.

Ihadmultiple1:1meetingswiththeCCO,towhomIhadadottedreportingline,duringH2 2024duringwhichIverbalisedmydissatisfactionwithwhatwashappeningwiththeMalta project and the fact that the EU Senior Leadership team had been instructed to "stand down"inpreparingaMiCAauthorisationapplicationinIreland.IcontinuouslyreiteratedtotheCCO that I was entirely removed from the Malta / MiCA project, notwithstanding my role as Gemini's Head of Compliance (EU), and it was in fact I who notified him, despite his role as CCO, that the Legal Function had made a decision to outsource the EU Compliance Function supporting Gemini’s crypto asset business in Malta to an external third party consulting firm called RMC Wise, i.e. my role.

Dates are given for some thirteen meetings. The submission continues.

At every single one of these meetings, we discussed MiCA, Malta, the fact that the EU senior leadershipteaminDublin,includingmyself,wasentirelyinthedarkwithrespecttotheMalta / MiCA project and the implications of this on Gemini's Irish operations and my role given that GeminihadnotifiedtheMFSAthattheHeadofComplianceofGemini'sEUcryptoasset business going forward would be a Malta based individual, an RMC Wise employee, and that the Money Laundering Reporting Officer for Gemini's EU digital asset business going forward would also be a Malta based individual, another RMC Wise employee. In other words, my role inIrelandwithresponsibility for complianceof Gemini's EU crypto asset business wouldbe relocated to Malta and split between the aforementioned two individuals, without engagement or consultation with me.

Following our 1:1 meeting on 1-Oct-2024, during which I again reiterated my concerns, the CCOaskedmetoattendafurther1:1meetingwithhimtwodayslateron3-Oct-2024.The titleofthemeetinginvitewas"MiCA-Malta".Duringthatcallwehadafurtherdeepdive conversationintoallofmyconcerns,includingthefactthatI,alongwiththeentiretyofthe EUleadershipteaminIrelandhadbeenexcludedfromtheMiCA /Maltaprojectandthatthe company was not considering nor working towards defining a compliance strategy or organisational structure to ensure compliance with MiCA in its efforts to become regulated in Malta, given that the decision had been made by the Legal Function to outsource my role to RMC Wise, as articulated above. The CCO accepted all of my concerns and suggested that a meeting with Gemini's GC and Global Chief Operating Officer (“COO”) was required to discuss my concerns.

It is clear from this that a central part of these discussions related to operational matters and, while the complainant’s role was clearly bound up with this, the question as to whether this series of meetings meets the obligation that falls on him to formally exhaust internal workplace procedures   and meet the standard justifying a constructive dismissal is critical.

The Unfair Dismissals Act, 1977 and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.  It is, after all, a breach of a legally binding contract.

When an employer wishes to terminate the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings.

And this, termination by the employer, is the most common source of complaints under the Act, and the criteria referred to are then the key tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning. In most, if not all cases, an action for breach of the employment contract is unlikely to arise.

But when an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal then that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340).

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.

The Supreme Court has said that.

 ‘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.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

This eloquently sets out the bar that an employee has to meet.

While the behaviour of the employer is critical, the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to mean whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

In other words, it has been at a level and of a nature that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the workplace grievance machinery.

The tribunal and its predecessor have made it clear in a series of decisions that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above) before the bar referred to above can be said to have been met.

A specific example of a relevant authority is to be found in Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant did not give her employer an opportunity to deal with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to use any of the several avenues open to her.

And also, in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated.

For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However, for a period of six months she did not attempt to resolve the issue.

So central to these considerations is that a complainant has used the internal procedures with some degree of specific reference to their grievance and, probably, an impending resignation or other fundamental breach of the contract of employment.

So, when a complainant says (as the current complainant has on the complaint form) ‘I had no alternative but to resign’ this must be interpreted strictly and literally and mean that they actually had no alternative. It is not simply an expression of exasperation in the sense it is used colloquially.

In the submission above the complainant asserts that his resignation came ‘having exhausted all internal procedures for dealing with such matters’.

But the evidence does not support this contention; he had neither commenced nor exhausted all internal procedures.

The series of thirteen business meetings with his management to which the complainant has referred were not ‘internal procedures for dealing with such matters’ in the way a formal grievance would.

I find that the ‘multiple’ meetings referred to were not part of a process in which the complainant had made a formal grievance and was understood by the respondent to be such.

In the extract above he states that he.

  ‘VerbalisedmydissatisfactionwithwhatwashappeningwiththeMalta project and the fact that the EU Senior Leadership team had been instructed to "stand down"inpreparingaMiCAauthorisationapplicationinIreland.

(Underlining added)

While this continued

‘IcontinuouslyreiteratedtotheCCO that I was entirely removed from the Malta/MiCA project, notwithstanding my role as Gemini's Head of Compliance (EU)’

There is no indication that this was being done in the context of an alleged breach of his contract (or of a Protected Disclosure for that matter), but rather that it was a continuing conversation about issues related to regulatory compliance over the “Malta issue’.

Of course, these had an impact on the complainant, but they do not remotely meet the legal requirements for the processing of a specific grievance necessary to precede a resignation and which might ground a case of constructive unfair dismissal.

The complainant’s representative was critical of the respondent’s approach to the hearing, specifically that it had not made a written submission, or cross-examined the complainant and implied that this had some bearing on the prosecution of the complainant’s complaints.

Parties are invited to make written submissions within a specified timeframe, and it is helpful to the conduct of hearings when they do. The respondent was legally represented by Counsel who chose, on this occasion not to do so. There are risks in this approach but when an experienced barrister chooses to do so it must be presumed, they are aware of those risks.

The burden of proof falls on the complainant in respect of both of these complaints and the complainant was not taken short in relation to any aspect of the facts of the case which are set out in detail in the submission and oral evidence.

The respondent’s brief arguments are well set out above and turn primarily on the legal proofs necessary to establish prima facie complaints. So, while it is easy to imagine circumstances where failure to present a submission will place a party at a disadvantage this is a risk a party is entitled to calculate and to take.

The complainant was not inhibited in any way in presenting his case and in the event has not made out a prima facie case under the Protected Disclosures Act and has failed to reach the necessary standard for a constructive dismissal, neither of which is attributable to any failure on the part of the respondent.

In summary I find and conclude that the complainant did not make a protected disclosure of wrongdoing nor do the circumstances of the termination of his employment meet the evidential standard for a constructive dismissal.

For the reasons set out complaint CA-00070464-001 is not well founded and Complaint CA-00070464-002 is not upheld.

Protected Disclosure, Constructive Unfair Dismissal