Complainant

Respondent

Parties

Irem Altan  Demir

Derry Court Company Limited

Complainant

Respondent

Representatives

Ms Harriet Burgess BL instructed by Eamonn O'Hanrahan of E.M. O'Hanrahan Solicitors

John Barry  of Management Support Services (Ireland) Ltd

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-00071252-001

02/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00071252-002

02/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00071252-003

02/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00071252-004

02/05/2025

The issues in contention concern a Resource Planning Administrator, the Complainant and a major Services & Facilities Company, the Respondent. The Complainant alleged that she was Constructively Dismissed, Discriminated against on the Race Ground, refused Carers leave and Penalised for invoking her rights under the Career’s Leave Act.

The employment began on the 5th April 2021 and ended on the 5th December 2024.

The rate of pay was stated by the Complainant to have been €30,000 per annum for a standard week. 

The Complainant was represented by Ms Burgess BL. A detailed written submission was provided which the Complainant supported with an extensive Oral Testimony. She was fully cross examined by Mr Barry for the Respondent.

1:1      Unfair Dismissal CA-00071252-001

In essence the Complainant argued that the refusal by the Respondent to allow her take Career’s leave or indeed to take a period of Unpaid special leave to care for her seriously ill father was firstly a Breach of her Employment Contract and secondly was Unreasonable Employer Behaviour. Both grounds are clearly understood to be the basis of a successful Constructive Dismissal claim. Significant case law was cited in support. Dunne v Apoca Parking Irl -Adj 31283 & Kane v Willstan Racing (Irl) Ltd UD 1263/2008 being principally relied upon.

The Complainant argued that she had informed her Manager (Ms X) in late November 2024 of her most distressing family situation. She had made it clear that her father’s medical situation was terminal and accordingly she had to go home to Turkey to provide care. She could not provide an end date for her leave -at that stage it had to be open ended. Other employees (2 referenced) had been allowed extended leave. She felt the same arrangements should apply to her. The Employer had informed her that as she was a Non-EU citizen (Turkish) Statutory Carers’ Leave could not apply to her. The Respondent offer of three weeks unpaid leave was not appropriate. She had to refuse it.

She had a very good employment record with the Respondent, having been promoted from a basic Cleaner Grade to a very responsible Office based Administrative position. She had offered to work, unpaid, remotely from Turkey to assist the Respondent. However, these reasonable employee offers were not reciprocated, and she had been left with no option but to resign which she did, effective from the 6th December 2024.

The behaviour of the Respondent had been completely unreasonable and in breach of Contract.

Although after the Dismissal the Complaint had applied for a vacant position with the Respondent – in April 2025 - this was a clear gesture of good will and demonstrated a willingness to return to a productive role. Her application had been cursorily rejected.

1:2       Employment Equality Act, Discrimination CA-00071252-002 on the Race Ground & Conditions of Employment

The Complainant stated that she was of Turkish Nationality. She held a Stamp 4 visa for Ireland giving full working rights. Her Employer, the Respondent had openly told her that she was not getting Career’s leave as she was a non-EU citizen. This was grossly Discriminatory of Racial origin Grounds and was also Discriminatory or Grounds of Employment. She identified two comparators (A Brazilian/Italian and a Romanian co-worker) who were granted extended leave, a privilege that was not extended to her.

1:3        Careers Leave Act, CA-00071252-003 -Penalisation.

Her forced Constructive Dismissal, following a refusal to allow Careers Leave, was clearly a Penalisation under the Act. In addition, the rejected Job application in April 2025 was a further Penalisation.

1:4       Refusal to Grant Career’s Leave CA-00071252-004

The refusal by the Respondent Employer to grant Careers leave was in flagrant breach of the Act. Redress was warranted.

The Respondent was Represented by Mr Barry, Consultant and supported by Respondent Managers. A detailed Written Submission was provided which was supported by detailed oral testimony.

2:1       Unfair Dismissal CA-00071252-01

Mr Barry, for the Respondent, argued that the claim of Constructive Dismissal failed on the basis of the well accepted Legal Tests in these cases – these being, firstly Breach of the Employment Contract, secondly, Unreasonable Behaviours and thirdly, use of Internal Procedures prior to any Resignation.

The Complainant had applied for unpaid Time Off, beginning in January 2025, on the 24th November 2024. She had explained her very difficult domestic situation with her seriously ill father in Turkey. Regrettably she was not able to give an end date to her proposed Leave. After consideration the Respondent had replied that they could not give an open-ended Leave but had suggested that the Complaint take three weeks off to ascertain the exact situation in Turkey. At the end of this period the situation could be reviewed again. This was not amenable to the Complainant, and she resigned on the 6th December 2024.

The Respondent argued that their position was perfectly reasonable, was not in any way a breach of the employment contract and furthermore the Complainant had not availed of any internal Grievance/Dispute procedures. She was proposing to take her leave beginning in January 2025 which allowed the entire month of December for Grievance discussions.

As regards the issue of Career’s Leave this is discussed below. The Respondent pointed out that no formal request had been submitted as required by the detailed procedures in the Act. Accordingly, this can have no bearing.

The Recruitment competition which was referred to took place in April 2025. The Complainant was effectively facilitated in what could be described as a late Application to a competition that was then well underway with a likely successful candidate already identified by the Respondent. The fact that the Complainant’s application was not progressed was disappointing to the Complainant but in any “reasonable” context was understandable for the Employer.

In summary all three Tests did not fall in the Complainant’s favour. The Claim for Constructive Dismissal was Not Well Founded and had to fail.

2:2       Employment Equality Act, Discrimination CA-00071252-002 on the Race Ground & Conditions of Employment

Mr Barry pointed to the legal requirements & precedents that have to under lay a Discrimination/Equality case. The primary one is a clear Prima Facie basis of strong evidence. Mitchell v Southern Heath Board [2001] ELR 201 was cited as a major precedent. The Complainant had failed to provide any evidence other than her Turkish Nationality to base her discrimination claim. The Respondent is a large multi ethic organisation, and the nationality of the Complainant had no linkage to the case. No proper comparators were suggested to support the Discrimination allegation.

The Complainant had identified two comparators (A Brazilian/Italian and a Romanian co-workers) who were granted extended leave.  They were not comparable in any way. Both were basic grade Cleaners and easily covered in an absence. The Office based Administrative role occupied by the Complainant was of a much higher grade and would require a new entrant to be recruited if the absence was going to be long term.

In summary the case lacked any Legal foundations and had to be deemed Not Well Founded.

2:3       Careers Leave Act, CA-00071252-003 – Penalisation and Refusal to Grant Career’s Leave CA-00071252-004

Mr Barry referred strongly to Section 6(5) of the Careers Leave Act,2001 which in essence requires a Decision from the Minister for Social, Community and Family Affairs that the person being “cared for” is eligible and that the Carer themselves also qualifies.  It was clear that the Complainant had never made any such application to the Minister. As such no claim for Penalisation or refusal of Leave by the Respondent can arise.

The suggestion by the Complainant that she had been told by Managers in the Respondent Company that she was not eligible as she was of non-EU Citizenship was noted. However, the Managers involved had, at best a “lay mans” knowledge of the Legislation. The Complainant should have applied directly to the Minister for Social, Community and Family Affairs for a decision and could have appealed any such decision irrespective of any possibly mistaken views by Respondent Managers.

In summary Mr Barry stated that both these complaints lacked a proper Legal foundation under the Carers Leave Act,2001 as no application had ever been made.

3:1      Unfair Dismissal CA-00071252-001

3:1:1      The Legal Position.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ 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 other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

“…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.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

In plain English, for a case to succeed, firstly ,the Employment contract has to be “grievously”  broken i.e. by for example ,a total refusal to pay wages, secondly the behaviour of the Employer has to be “egregious” i.e. so appalling bad that no reasonable employee could be expected to tolerate it. A facetious example is often quoted of an Accountant being required to clean the Hygiene facilities with a toothbrush. Thirdly, as referenced above by Redmond Dismissal law employment procedures in an Organisation have to be utilised prior to a resignation. There are some exceptions to this rule (gross loss of confidence/faith in the Employer) but in general the rule applies.

However, all cases rest on their own circumstances and evidential matrix. These are examined below.

3:1:2       Evidence presented in support of Constructive Dismissal.

Taking the three “Tests” as a template is useful.

3:1:2:1       Breach of Employment contract.

There was no evidence presented of any grievous Breach of the contract, Salary and Benefits were paid /Discharged without complaint. No extraordinary demands were placed on the Complainant. The Complainant Representative, Ms Burgess sought to expand the discussion to a broader interpretation of the contract – a duty of care/welfare to the Complainant in her domestic /parental illness situation.  This argument may well have merit in a theoretical or academic legal forum but would be going too far in this case.

The Test cannot be seen as favouring the Complainant.

3:1:2:2          Unreasonable Behaviours

As quoted above the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713 identified that any Unreasonable Behaviour has to just that - Unreasonable to any person of some common sense. In plain English it has to be “very bad” indeed to justify a Constructive Resignation. In this case the refusal of an open-ended period of Leave and the suggestion of an initial Three-Week period would not be seen by most outside observers as so “unreasonable” as to justify a resignation.

The Test cannot be seen as favouring the Complainant.

3:1:2:3        Use of Procedures

The Complainant chose not to utilise any internal procedures to appeal the Long-term Leave decision. She resigned effective from the 6th December 2024 having applied for a leave to begin in January 2025. No doubt there was serious Family stress involved for the Complainant but not at least registering a Grievance must undermine her case. Legal precedents are strong in this area.

All told the Test cannot be seen as favouring the Complainant.

3:1:3       Adjudication Summary / Constructive Dismissal.

Based on the discussion above the case for Constructive Dismissal cannot be seen to be Properly Founded. It has to fail.

3:2        Employment Equality Act, Discrimination CA-00071252-002 on the Race Ground & Conditions of Employment

The basic issue in this case is the need to provide proper evidence to first establish a Prima Facie case.

Section 85A of the Act – the Burden of Proof clause - refers.

Burden of proof.

85A.—(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the F159[Director General of the Workplace Relations Commission] under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

The Legal precedents are strong, encapsulated in the Mitchell v Southern Heath Board [2001] ELR 201 case.

However, all cases rest on their own facts and evidence and these are examined below.

3:2:1      Evidence presented.

The only evidence presented was essentially that the Complainant was a Turkish national and was treated “less favourably” than an Irish or EU citizen would have been. The Oral Testimony, given under Oath, of the Complainant was heartfelt on this issue. She believed that Managers in the Respondent had taken advantage of her “Stamp 4” non-EU status to refuse her leave request.

The Respondent is a major multiethnic Employer with numerous staff from outside the EU. All the evidence pointed to the issue as one of the considerable staffing difficulties for the Employer to grant an Office Administrator a period of unpaid Leave with no end date.

Having reviewed all the evidence presented the Adjudication view has to be that the Complainant’s Turkish Status had no real bearing on the decision.

It had to be recognised the Complainant, a person of quite obvious ability, had been promoted quickly (and in the recent past) from the basic “Cleaner” ranks to a responsible Office Administrator job. It would be a stretch to now suggest that her nationality was a Discriminatory factor against her.

The Adjudication view had to be that no Discrimination as defined in the Act had taken place as regards this case.

3:3        Careers Leave Act, CA-00071252-003 – Penalisation and Refusal to Grant Career’s Leave CA-00071252-004

Heartfelt Oral testimony was given by the Complainant and her Representative Ms Burgess BL on these cases. However regrettably for the Complainant in this case Section 6.1 of the Carer Leave Act,2001 as amended to 2020 – has to apply.

Section 6 is quoted below.

Entitlement to carer’s leave.

6.—(1) Subject to this Act, an employee who has been employed for a period of 12 months continuous employment by the employer from whose employment the carer’s leave is proposed to be taken shall be entitled to leave from the employment concerned (to be known and referred to in this Act as “carer’s leave”) for the purpose of providing full-time care and attention to a relevant person for a period not exceeding104 weeks for each relevant person if—

(a) the person in respect of whom the employee proposes to provide full-time care and attention is a relevant person,

(b) the employee provides the employer concerned with a decision referred to in subsection (5), or, where appropriate, subsection (6),

(c) during the period of carer’s leave the employee provides full-time care and attention to the relevant person, and

(d) during the period of carer’s leave the employee does not engage in employment or self-employment other than employment or self-employment prescribed under section 82B(3) (inserted by the Act of 2000) of Chapter 11A of Part II of the Act of 1993.

(2) An employee shall give the employer a copy of the decision referred to in subsection (1)(b) as soon as he or she receives it and the employee shall not be entitled to carer’s leave until the employer has been given the copy.

(3) An employee shall not be entitled to carer’s leave for the purpose of providing full-time care and attention to a relevant person during the same period in which another employee is absent from employment on carer’s leave for the purpose of providing full-time care and attention to the same relevant person.

(4) An employee shall, subject to section 7(2), be entitled to a period of carer’s leave for one relevant person at any one time.

(5) An employee who proposes to avail of carer’s leave shall apply to the Minister for Social, Community and Family Affairs for a decision by a deciding officer under the Act of 1993 that the person in respect of whom the employee proposes to avail of carer’s leave in order to provide full-time care and attention is a relevant person for the purposes of Chapter 11A (inserted by the Act of 2000) of Part II of the Act of 1993.

(6) A decision of a deciding officer under subsection (5) may be appealed under section 257 of the Act of 1993.

(7) For the avoidance of doubt it is declared that entitlement to carer’s benefit under Chapter 11A (inserted by the Act of 2000) of Part II of the Act of 1993 is not a condition for entitlement to carer’s leave

(Underlining by Adjudication Officer).

Accordingly, and most regrettably for the Complainant no application was made to the Minister forSocial, Community and Family Affairs. Furthermore, an unfavourable decision, if such arose, could have been Appealed to the Chief Appeals Officer under Section 257 of the Social Welfare Consolidation Act of 1993.

 The Complainant accepted, in appeared, the “off the cuff” opinion of the Respondent Managers regarding her eligibility. This was a mistake but does not lessen the situation that no application was made to the Minister. In Oral testimony the Respondent Manager was clear that she had acted in good faith and had not tried to wilfully mislead the Complainant.

Accordingly, both CA-00071252-003 and CA-00071252-004 have to fail on the technical grounds that no application for Carer’s Leave was made.

Career’s Leave, Nationality , Discrimination, Employment Equality