The Complainant contended that he was forced to resign from his employment due to his treatment by the Respondent. The contention commenced when the Complainant had to take eight days off from 26th of February 2021 to the 6th March 2021 to mind his children as his daughter was in hospital. The Complainant was issued with a final written warning when he returned to work on the 12th of March 2021. The Complainant had also been given a warning on the 3rd of  February 2021, following a disciplinary hearing for previous absences since September 2020. He was unable to appeal the warning from February as the time to do this had already expired by the time it was received.

The Complainant stated that he asked for the disciplinary procedure to be issued to him in advance of the hearing on the 15th March but this was not provided.  During the hearing the Complainant had asked that his absence in February/March be put down for emergency or parental leave due but this was refused.  After the meeting the Complainant wanted to appeal the outcome and spoke to the Respondent’s HR manager in the UK. He was given the procedures and the Employee Handbook. The Complainant met the Branch Manager for the appeal, who overturned the final written warning which had been given on the 24th of March 2021.

The Complainant stated that from the date that his appeal was successful he was bullied and harassed, and treated differently to other staff. An incident took place whereby the Complainant maintained that the speed that the machine he had been working on had been altered and he had not been informed which was dangerous and could have led to an accident. The Complainant reported this to the Branch Manager who agreed that it was dangerous but said he did not get injured. Shortly thereafter, the Complainant was followed to the toilet by a manager which he found very intimidating. He was told to use a broken toilet with a basin of water used by all staff to wash his hands. Therefore, the Complainant felt he had no option but to resign.

The Respondent stated that the Complainant had excessive absences from work and was the worst absence record of any member of staff. He was given a written warning in relation to poor conduct and his absence levels. There was a right of appeal afforded to the Complainant but that the Complainant did not exercise his right to appeal.

The Respondent disputed the constructive dismissal stating that the Complainant did not meet the standard for constructive dismissal under S1 of the Unfair Dismissals Act, that either there was a repudiatory breach of his contract of employment or the conduct of the employer was so untenable he had to resign. The Respondent maintained that the Complainant did not act reasonably; he did not use the grievance procedure or bullying and harassment procedure, and was only in the workplace for three weeks following his complaint.

The Adjudication Officer noted that there was a direct conflict in the evidence given by the parties. The Adjudication Officer considered the fact that the Complainant made complaints about his treatment from March 2021 to the Branch Manager on two occasions and therefore found that it was reasonable for the Complainant to resign given the unfair disciplinary process which was rectified, and subsequent complaints to the Manager about his treatment which were never responded to nor investigated, in accordance with Industrial Relations Act 1990.

However, the time period between the Complainant’s complaints and resignation was short. The Adjudication Officer opined that the Complainant could have made greater efforts to follow up on the complaints with management and exhaust the grievance procedure and in this regard, the Complainant thereby contributed to his dismissal

In all the circumstances, the Adjudication Officer considered it just and equitable to award 12 weeks wages to the Complainant which amounted to a total of €6,024.00 as compensation for unfair dismissal.

Guidance for Employers

In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, the employer has breached his contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer. However, an employee must make reasonable effort to exhaust any or all available grievance procedures, before claiming that they have been constructively dismissed.
https://www.workplacerelations.ie/en/cases/2022/march/adj-00033100.html