Complainant

Respondent

Parties

Edwin  Barry

PFH Technology Group Limited

Representatives

Self-Represented

Cara Jane Walsh BL instructed by RDJ LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00052148-001

09/08/2022

The Complainant commenced employment with the Respondent, an information and communications technology company, as a warehouse operator on 13 January 2020. His stated gross pay was €2416 for a 37.5-hour week at the material time.  He resigned by letter dated 17 February 2022. He cited the unresolved bullying, biased investigations, and ongoing victimisation as reasons for his resignation. The Complainant claims that he was dismissed by way of constructive dismissal in that he had no other option but to resign because of the unreasonable conduct  of the Respondent.

The Respondent submits that the Complainant’s claim for unfair dismissal is unfounded, as no breach of contract or unreasonable conduct occurred that would entitle him to resign and claim constructive dismissal.

The background  facts are not disputed in this case and  can be summarised as follows:

Complaint Against Mr A (2020-2021):

The Complainant lodged a formal bullying complaint against a colleague, Mr A, in October 2020. The Complainant objected to the manner of the  initial investigations by internal supervisors,  HR and an external investigator. This was  followed by an external investigation led by Sarah Daly BL, whose findings (June 2021) concluded that Mr A’s actions did not constitute bullying. Although Ms Daly found that  Mr A’s behaviour required improvement, it was deemed the Complainant had misinterpreted his conduct. The Complainant disagreed with the outcome  but did not pursue the matter further.

Complaint Against Mr B (July 2021)

In July 2021, the Complainant raised concerns about a work colleague,  Mr B, for his  alleged treatment of him by way of  social isolation and unequal workload distribution. Following these complaints, stress-related sick leave ensued. An occupational health assessment (August 2021) recommended a meeting, which occurred in September. After returning to work, the Complainant was assigned a new role away from the main depot, which he viewed as isolation. The Complainant claimed that an incident involving his manager, MOD, left him feeling overwhelmed, and the Complainant went on sick leave.

Further Complaints and Developments (October 2021–December 2021):

 The Complainant reported Mr A’s non-compliance with safety protocols ( not wearing a ‘hi-vis’ jacket nor  face mask). He also reported Mr B for verbal abuse.  Mr A accused the Complainant of intimidating behaviour, including provocative singing and obstruction of tasks.  The Complainant accused Mr A of deliberately shutting a door on him, which he alleges hit him in the torso. His supervisor Michael O’Donovan (MOD) reviewed CCTV footage and concluded it was unintentional, though the Complainant disagreed.

 Mr B accused the Complainant of racism, stalking, and provocative behaviour. HR initiated a formal investigation, which the Complainant did not engage with, citing stress.

The Complainant resigned in February 2022, whilst on continuing sick leave and in his letter of resignation he claimed he was subject to  nearly two years of bullying, harassment, management failures, and policy breaches. The Respondent denied these allegations, stating all issues had been handled appropriately but accepted the resignation with immediate effect.

The Complainant asserts that he had no alternative but to resign due to the gross infringement of his contractual rights, statutory rights under the Safety, Health and Welfare at Work Act 2025, and constitutional rights, by the Respondent. The Complainant claims that, fundamentally, the Respondent failed to fulfil its duty of care towards him.

With reference to the bullying complaint raised in October 2020, the Complainant outlined that an inordinate amount of time  passed without a meaningful response from management. This delay prompted him to escalate the matter to the CEO, thereby forcing the issue to a head. He felt that his supervisor (MOD) had sided with the alleged perpetrator, Mr A. The Complainant believes that the management employed deliberate delaying tactics in handling his complaint. On 15 February 2021, he eventually received a report from an external investigator, which concluded that no bullying had taken place. The Complainant appealed this decision, and the CEO appointed an external barrister, Ms Sarah Daly BL, to conduct a fresh investigation. The barrister’s findings, delivered in May 2021, also concluded that no bullying had occurred.

Following this, the Complainant claims that a work colleague, Mr B, socially isolated him by refusing to engage in everyday conversations. The Complainant attributes this treatment to the fact that he had suggested that Mr B be called as a witness in the investigation. He perceived this behaviour as victimisation. Despite raising this issue with management, he received no response, and he ultimately went on sick leave due to stress between 22 July 2021 and 13 September 2021.

He returned to work on 14 September 2021 at the company’s site in Watergrasshill. The Complainant believes this was a deliberate effort by management to "get him out of the way." On that same day, he travelled to the company canteen at the Little Island site for lunch, where he was confronted by MOD in an aggressive manner for not answering his personal mobile phone. The Complainant contends that he was under no obligation to answer his personal phone, although he acknowledged that he had previously taken company-related calls on the same device. Following this incident, he went on sick leave again, citing MOD’s approach as the cause.

The Complainant returned to work on 4 October 2021, only to be verbally abused by Mr B, who allegedly called him "Fat Boy, Fat Boy" as he walked past him in the warehouse. The Complainant made a formal complaint regarding this incident, as well as a subsequent incident in which he claims that Mr A deliberately swung a door back at him, striking him in the torso. The Complainant considers this to be an assault. He asserts that the Respondent failed to investigate the matter and that MOD downplayed it, stating that he saw "no malice" in Mr A’s actions. The Complainant claims that MOD did not question Mr A regarding the incident. He also alleges that the acting HR manager Tom Randles (TR) stated that staff members were under no obligation to be civil to their colleagues.

On 14 December 2021, the Complainant received an email from HR outlining a complaint lodged against him by Mr B. The complaint alleged that the Complainant had racially abused Mr B and further alleged that the Complainant was  "stalking" him at his house. The Complainant contends that the Respondent dealt with this complaint swiftly, in stark contrast to the delays he had experienced when making his own complaints. He was informed by HR that he was being investigated under the company’s Bullying & Harassment policy. The Complainant claims that the stress caused by this investigation led him to take sick leave.

Over the Christmas period, he states that he gave significant thought to the situation and decided to resign, citing the ongoing mistreatment he had experienced over a two-year period. He submitted his CV to a recruitment agency and secured new employment at a higher rate of pay, four days after his resignation.

Cross-Examination:

In cross examination the Complainant accepted that he had sent his CV to the recruitment agency and agreed to take up a position before he tendered his resignation. He took up the position within four days of termination of his contract. In reference to the resignation letter, it was pointed out to the Complainant that he mentioned in his resignation that he was bullied by Management. Five members of management were identified but no formal complaint of bullying was ever made against individual in that category. The Complainant accepted that he was familiar with the grievance and bullying procedure.

On the Watergrasshill incident the Complainant accepted that he was there for one day only and that he had been contactable on his private phone prior to that. It was put to him that a potential health and safety infringement occurred by him not being contactable on the day when he was working alone. The Complainant accepted that he was not disciplined subsequently for his refusal to engage with his supervisor.

On the Sarah Daly investigation the Complainant accepted that he had no problem with the procedures, but he was unhappy with her conclusions. It was put to the Complainant that the conclusion of Ms Daly was that he mischaracterised valid training instructions from Mr A as bullying. The Complainant disagreed with this conclusion. The following passage from Ms Daly’s  conclusions  was referred to in questioning of  the Complainant:  “All employees should be reminded of the need to communicate in a courteous and respectful manner. All employees should be reminded  that different personality types might prefer to communicate in a different way and so one should not feel personally  offended if faced with a less friendly communication style so long as the communications remain respectful. Employees should also be asked to look at their own communication styles and reflect on whether any improvements can be made.” In reference to this passage the Complainant did not accept that his own communication style contributed to his further  complaint about social isolation, nor that he contributed to the toxic environment present in the workplace, as described by him.  

Legal Argument:

The Complainant submitted the following cases, with the  quotations as received,  prior to the hearing:

Jade  Gannon v Fides Playhouse Ltd ADJ-00035897 ;

A constructive dismissal case, and quotation from the Adjudication Officer:

“Where the Respondent fell into error in addressing the written complaint was not in the timeline, which was very prompt, but in not meeting the Complainant about her statement of complaint… The conduct of the inquiry by the Respondent does not come near the standard of inquiry required for a grievance, let alone an allegation of bullying. Such was the extent of the breach of fair procedures that had the Complainant left on receipt of the letter of 29 June 2021 she would have been justified in contending that her position in the employment was compromised to the extent that her trust in that contract was irretrievably broken rendering the contract effectively inoperable as a mutual agreement…The absence of responses and/or the inadequacy of the responses to complaints of bullying was sufficient to allow the Complainant to conclude, not unreasonably, that the Respondent had fundamentally breached the relationship of trust, confidence and fairness all of which must exist in an employment relationship on both sides.”

ADJ-00044464  Gary  Maloney  V Griffin Autos Ltd Bill Griffin Motors

“This is a matter for the Respondent to determine in the particular facts of the case to ensure a fair and impartial examination of the issues in accordance with the Supreme Court in Mooney v An Post [1998] 9 ELR 238. The extent of compliance by the Respondent with Statutory Instrument 146/2000 Code of Practice on Grievance and Disciplinary Procedures is also relevant. At paragraph 6 this requires organisations to comply with the general principles of natural justice and fair procedures which include:

“That details of any allegation or complaints are put to the employee concerned That the employee concerned is given the opportunity to respond fully to any such allegations or complaints. “No evidence has been provided of any investigation into the incident. The Respondent has failed to discharge the statutory burden. I find the dismissal of the Complainant is unfair on both procedural and substantive grounds.”

UDD2268 Sneem House Hotel Limited v Schots: A Labour Court case dealing with the cumulative effect of a number of incidents where the Court deliberated in the following manner:

“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 332as 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.”

Was it reasonable for the Complainant to resign?

“The question for the Court to consider is whether the cumulative effect of all of the interactions between the employee and employer crossed a threshold so as to damage the relationship to such an extent that it was reasonable for the Complainant to resign.”

“The cumulative failure by the Respondent to address the issues in a meaningful way created an atmosphere for the Complainant that became so difficult for him that his only option was to resign with immediate effect.”

In all the circumstances, the Court finds that the behaviour of the Respondent was unreasonable such as to justify the Complainant terminating his employment by way of constructive dismissal.

The Complainant argues that there was a  constructive dismissal due to a  fundamental breach of contract by the Respondent. The Complainant contends that his resignation was not voluntary but compelled by the Respondent's actions and omissions, which constituted a fundamental breach of his employment contract. These breaches left him with no alternative but to resign.

The Complainant argues the  Respondent failed to address the Complainant’s October 2020 complaint promptly and impartially, with a delay of up to seven weeks before notifying the Complainant. This undermined trust and confidence in the Respondent's ability to maintain a fair workplace. The investigation into the complaint demonstrated bias, as investigators made prejudicial remarks favouring Mr. A, compromising impartiality and further eroding trust.

The Complainant raised concerns about workplace safety, including inadequate enforcement of safety measures. Additionally, after naming Mr. B as a witness in a formal complaint, the Complainant experienced social isolation by Mr. B, which the Respondent failed to address, breaching its duty to provide a harassment-free environment. The Complainant submits that  inconsistent and biased handling of complaints, with delays in addressing his  grievances compared to the prompt attention given to complaints against him, contributed to a sense of unfair treatment and isolation.

The Complainant asserts the  Respondent also ignored the Complainant’s GDPR requests for CCTV footage, violating legal obligations and denying access to crucial evidence, which exacerbated the perception of unfairness and lack of transparency.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions section of this decision.

Mr Tom Randles gave evidence that he was the Group Director with responsibility for HR matters during the relevant period. He described the challenging conditions faced by the Respondent during the Covid pandemic where they were the main providers for the HSE vaccination centres of IT support during that period. He said that when he first saw the complaint from the Complainant regarding his interactions with Mr A, he attempted to address the matters informally. Ultimately when the matter was addressed by the original investigator, the Complainant disagreed with the findings and after appeal to the CEO, Ms Sarah Daly BL was brought in. She started on a clean sheet but also found that no bullying had occurred. He outlined the complaint the Complainant subsequently made about “social isolation” by Mr B as outlined to him and commented that there was no threat of violence or intimidation, or engagement at a work level, but instead  it was a complaint about the refusal of Mr B to engage with the Complainant on a social level. He described a back to work  meeting he had with the Complainant on 4 October 2021, explaining to him that he could not force an individual against their will to engage socially with another person on matters that did not involve the company. He was surprised that the Complainant later submitted a formal complaint on the matter.

The witness referred to  the 13 December 2021 complaint by Mr B against the Complainant. He said that this could not be resolved informally due to the seriousness of the allegations which included alleged racist remarks towards Mr B and the stalking of his (Mr B’s) house.  Because the Complainant went out sick and subsequently resigned, they were unable to progress the investigation.

In cross examination, the witness accepted that when the Complainant made a formal complaint of bullying  in October 2020, the formal steps of the company policy was not adhered to. The witness attributed this to the fact that in his opinion it was a matter that could be addressed informally however he did concede that management took the informal route without the express permission of the Complainant. He acknowledged that ‘social isolation’ is normally listed as bullying behaviour and that the Complainant labelled his complaint of lack of social contact by Mr B as such. However, he did not agree that an employee who chooses not to engage socially with a fellow employee can be forced to do so, as long as there is necessary engagement on a professional level. He did not agree that the complaint could be classed as social isolation but nevertheless agreed that there was a formal complaint that warranted an investigation . He agreed that no formal investigation had begun into this complaint and attributed that to the fact that there were further  claims and counterclaims shortly afterwards between Mr A and B against the Complainant, and he was trying to manage a situation where all the complaints could be handled together.

Mr Michael O’Donovan (MOD) described himself as Warehouse/Logistics Manager. The witness said that he tried to resolve the Complainant’s October 2020 complaint informally. He was unsuccessful and subsequently was a witness in the Sarah Daly BL investigation.  He said that after that he had received an email from the Complainant where he acknowledged that things had improved.

He gave an account of the circumstances surrounding the incident on 14 September 2021 when the Complainant was transferred to the Watergrasshill  depot. He said that it transpired that the Complainant  was there for one day only. The reason given for his deployment was a Covid related one in that the Complainant was seen as a very experienced operator who alone could deal with returns from the HSE contact centres as part of the Respondent’s operations, and they needed an overflow warehouse for that purpose. He said that he needed to contact the Complainant that day, but the Complainant refused to take his calls on the mobile phone. The Complainant was in the canteen at the main warehouse later that day. The Witness said he spoke to  the Complainant about his refusal to take calls and offered to supply him with a company phone. There was no reprimand nor consequential disciplinary sanction.

When the Complainant brought to his attention the complaint that Mr B was not engaging in social conversation with him, the witness said he approached Mr B who said that he had no problem engaging with the Complainant on work matters but did not want to engage with him in social conversation. He described the series of back-and-forth complaints as outlined above.

In cross-examination the witness acknowledged that he viewed the CCTV footage with the Complainant  when the Complainant was hit by a door after following Mr A through an entrance, and held the opinion that it showed  there was no malice intended by Mr A. He accepted that when the complaint of ‘social isolation’ came in from the Complainant, he stated in an email to TR that it did not warrant a response.

Legal Argument:

The Respondent cites Section 1(1)(b) of the Unfair Dismissals Acts 1997, as amended (“the Act)  as  providing the two-tier test on which constructive dismissal is to be objectively assessed:

 The Respondent refers to where  two-tier test was evaluated in the case of Western Excavating (ECC) Ltd v Sharp[1978] IRLR 332 when  Lord Denning MR described the contract test as:

“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.”

And the reasonableness test asks whether the employer:

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, [if so] the employee is justified in leaving.”

 The Respondent refers to the Labour Court in Paris Bakery  Pastry v Mrzljak DWT 68/2014  where the Court noted that not every breach of contract will give rise to a repudiatory breach. The Respondent submits that if I  find that there were breaches of the Complainant's contract present, they were not sufficiently grave to permit the Complainant to consider it a repudiation of his employment contract by the Respondent.

 With regard to the reasonableness test  the Respondent submits the   EAT has held, in Conway v Ulster Bank Ltd UD 474/4/1981, that the claimant did not act reasonably in resigning without having first ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.

The Respondent asserts that this  evaluation of the test for constructive dismissal was endorsed by the Supreme Court in the case of Berber v Dunnes Stores Ltd [2009] IESC 10. The Court held that the behaviour of the employer must be unreasonable 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 Respondent cites the WRC case of  A General Operative v A Religious Society ADJ-0002814, where the Adjudication Officer referenced Berberand stated of claims of constructive dismissal:

In such cases, the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment. … In effect, the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

The Respondent submits that the Complainant has not pointed to any breach of contract on the part of the Respondent which would allow him to resign his position and validly claim constructive dismissal. Nor has he pointed to any unreasonable conduct which would meet the high threshold required to enable him to resign his position and validly claim constructive dismissal.

The Respondent submits that if the Complainant had lodged a formal grievance under the Company’s policy in respect of his allegation that he was subjected to bullying by either MOD or GS or anyone at the management level as he claimed in his resignation letter, it would have been fully investigated by the Respondent. The Respondent points to the full investigation and appeal process it carried out when the Complainant lodged a bullying and harassment complaint against his colleague Mr A as its previous track record in this regard.

 The Respondent submits that the first occasion on which Human Resources was aware of the breadth of the Complainant’s alleged difficulties with either MOD or GS was on receipt of the Complainant’s resignation letter dated 17th February 2022. The Respondent submits that the Complainant mentioned difficulties he had with GS  during the investigation into his complaint regarding Mr A  but there was never a formal complaint lodged by the Complainant  against GS. The Respondent reiterates that if the Complainant had made such an official complaint under the relevant policy this would have been addressed and investigated however it did not have the opportunity to engage in such a process as the Complainant did not utilise the relevant grievance procedure regarding MOD and GS.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions section of this decision.

There was no major conflict in facts in this case hence the comprehensive outline above of  the uncontested background facts. The Complainant is claiming constructive dismissal in this case. Section 1(1)(b) of the Act defines constructive dismissal as:- “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The seminal case referred to by authorities both in Ireland and the UK is Western Excavating (ECC) Ltd v Sharp[1978] IRLR 332 when  Lord Denning MR described the tests as followed:

“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.”

And the reasonableness test asks whether the employer:

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, [if so] the employee is justified in leaving.”

 The burden of proof in constructive dismissal cases is firmly on the Complainant. In   Nicola Coffey v. Connect Family Resource Centre ltd. (UD 1126/2014),  it was held by the Employment Appeals Tribunal that “the bar for constructive dismissal is very high.”

An authority often referred to in this jurisdiction, and opened by the Respondent, is the Supreme Court decision in   Berber v. Dunnes Stores Limited [2009] IESC 10  where Finnegan J stated:  “In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment. In this regard 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.”

 Finnegan J from Berber  outlined  the test on repudiation of the contract of employment  as follows:

“The appropriate test must be applied to that conduct. In relation to the test the following matters are to be noted:-

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 Respondent also opened the  Labour Court in Paris Bakery  Pastry v Mrzljak DWT 68/2014  where the Court noted that not every breach of contract will give rise to a repudiatory breach. I must decide whether there were breaches of the Complainant's contract present, and if  they were  sufficiently serious to permit the Complainant to consider it a repudiation of his employment contract by the Respondent. I will also apply the reasonableness first mentioned in Western Excavating and further elaborated upon in Berber.  

October 2020 Complaint:

A significant part of the Complainant's case regarding breach of contract revolves around the formal bullying complaint and the fact that the Respondent did not adhere to its own procedures. He submits that the delay in addressing the complaint and the attempt to redirect it into an informal process without his consent constituted a breach of his employment contract. The Complainant also perceived elements of bias in the initial investigation conducted by local management.

When Ms Sarah Daly BL was brought in to investigate, she started with a clean slate and found, significantly, that there was no bullying  but rather a misunderstanding on the Complainant’s part regarding what constituted bullying. He had misinterpreted training instructions and the delegation of work by Mr A as bullying. The approach taken by TR and MOD to resolve the matter informally, based on their initial assessment that the incidents did not amount to bullying, was somewhat vindicated. However, it is clear that the Complainant was subjected to a prolonged process that could have been resolved more efficiently had the formal procedures been applied from the outset. I am satisfied that the delay and disregard of agreed procedures by the Respondent  was a breach of contract. However, I do not find that the breach was so serious as to entitle the Complainant to treat it as a repudiation of his employment contract. Firstly, Ms Daly objectively determined that there was no bullying involved (had she found otherwise, there could have been grounds for a successful claim of repudiatory breach at the material time). Secondly, the Complainant continued to work for a significant period after experiencing what he perceived as a breach of contract. I regard the delay in his resignation as an indication that he either accepted the Respondent's breach or found the situation not intolerable enough to justify immediate resignation. The Complainant continued to work under the same conditions for an extended period, suggesting he accepted those conditions. Moreover, MOD provided uncontested evidence that the Complainant had indicated in a later email that the situation had improved.

Complaints between Parties - October 2021 to December 2021:

Starting in October 2021, a series of claims and counterclaims emerged between the Complainant and Messrs. A and B, including allegations of bullying. These included claims by the Complainant that he was being socially isolated by Mr B and that Mr A was observed on one occasion without a mask and hi-vis vest. Conversely, there were counterclaims of bullying by Mr A and Mr B against the Complainant, including an allegation by Mr A that the Complainant applied different health and safety standards to himself. I agree with the Complainant that this painted a picture of a toxic environment on the shop floor. However, I do not believe it was reasonable for the Complainant to claim he was entirely innocent in creating this fractious atmosphere. I accept that all these were allegations and remained as such. Nevertheless, based on submissions and the balance of probabilities, I conclude that the Complainant also contributed to the strained atmosphere.

The situation escalated significantly when, on 13 December 2021, Mr B lodged a formal complaint against the Complainant with  MOD. This complaint alleged that the Complainant had made racist remarks about Mr B’s family and accused the Complainant of stalking him and appearing at his house over four consecutive nights.

The Complainant argued that the Respondent’s failure to investigate his complaints during this period amounted to a fundamental breach of his employment contract. He claimed that this behaviour was so unreasonable that it effectively repudiated the contract, leaving him no choice but to resign. I do not accept this argument. Finnegan J in Berber, when outlining the test for assessing unreasonable behaviour, stated that the test must be objective and that the conduct of both the employer and employee must be considered. He noted: “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 to determine if it is such that the employee cannot be expected to tolerate it.”

TR, in his evidence, explained that there was no immediate investigation into Mr A’s complaints because counterclaims of bullying had been made against the Complainant. He went on to say the Respondent was considering how to address these claims during a period of significant pressure due to the Covid pandemic, and consideration was being given to whether an informal approach between the parties might be appropriate. However, this approach changed when Mr B’s very serious complaint was received. He said that he felt that given the nature of the allegations, an informal resolution was no longer feasible, and an immediate investigation was initiated. I can only conclude that this was a reasonable and sensible approach to handling the complaints. I am satisfied that this method of addressing the complaints did  not constitute a breach of the  contract test  in Western Excavating nor the reasonableness test in  Berber.

The Complainant cited cases which he argued supported his position. In Jade Gannon v Fides Playhouse Ltd, the Respondent failed to allow the Complainant to participate in the investigation, which was in  itself procedurally flawed, and the Complainant resigned shortly afterwards. In the present case, there was no issue with the procedures of Ms Sarah Daly. The Complainant was interviewed in all investigations into the October 2020 complaint and, significantly, the Complainant decided to “sit on his rights,” suggesting acceptance of the process and its aftermath.

The Complainant also referred to Gary Maloney v Griffin Autos Ltd Bill Griffin Motors concerning the utilisation of proper procedures. This case can be distinguished from the present case as it involved a conventional dismissal where the burden of proof rested on the employer. The Adjudication Office followed the well-established principle that if disciplinary procedures are seriously flawed, there is invariably a finding of unfair dismissal. Moreover, the present case involves constructive dismissal, where no disciplinary arose at the material time.

Sneem House Hotel Limited v Schots was a constructive dismissal case before the Labour Court. The Court found clear evidence that management attempted to demote the Complainant and undermine his role. The Complainant made multiple written requests to invoke the grievance procedure against management, highlighting concerns about his role. The Court concluded that these behaviours breached the implied contractual duty of mutual trust and confidence, and resignation was justified. This case can be distinguished from the present case. No evidence was presented that the Complainant was deficient in his role; in fact, the opposite was stated. Nor was there any threat, explicit nor implicit, to his continued employment. Furthermore, the Complainant never made a bullying complaint against members of management, though such a complaint formed the mainstay of his resignation letter.

There is a clear obligation regarding the reasonableness test outlined in Conway v Ulster Bank Ltd [UD 474/4/1981], where it was stated that a complainant must act reasonably in resigning by first having “substantially utilised the grievance procedure to attempt to remedy her complaints.” In General Operative v Telecommunications and Transport Infrastructure [ADJ-00026427], the WRC affirmed the aforementioned position of both the EAT and the Supreme Court regarding the conduct of the parties and the necessity for the Complainant to exhaust all internal remedies before resigning. The plain fact of the matter is that the Complainant did not lodge a formal complaint against the members of management referred to in his resignation letter. This would have allowed management to address his concerns before his resignation.

In conclusion, the Complainant was evidently dissatisfied in the workplace from October 2020 onwards; however, he exhibited a degree of forbearance throughout the various contentious events described – events which he ultimately attributed to management, in his resignation letter, but did not formalise as grievances against the Respondent’s management team. This situation changed significantly in December 2021, when serious allegations were made against him. I am satisfied, on the balance of probabilities, that the initiation of an investigation prompted his decision to resign. In his own testimony, he admitted to seeking alternative employment over the Christmas period, ultimately securing a new role prior to his resignation.

After reviewing the above, I conclude that the Complainant failed to establish a fundamental breach of contract by the Respondent or demonstrate any unreasonable behaviour by the Respondent that would constitute a repudiatory breach. Accordingly, I find that the Complainant was not unfairly dismissed.

For the reasons outlined above, I find  that the Complainant was not subjected to unfair dismissal through constructive dismissal.

Constructive Dismissal. Unfair Dismissals Act.