Introduction
In Gillian Dunne v Teroboc Operations Limited t/a Kinnitty Castle Hotel (ADJ-00041511), it was held that the reduction in hours of work, on foot of the particular requirements of the complainant, coupled with the operational requirements of the respondent, did not amount to a breach of the contract of employment.
The complainant commenced working for the respondent in October 2007. She was initially working in the kitchen. She requested a move to housekeeping as she had a back/shoulder injury. She worked 15 hours per week. The complainant set out that she had to leave her position due to the respondent giving her reduced hours or no hours.
Constructive Dismissal Law
Section 1 of the Unfair Dismissal Act defines constructive dismissal as follows: –
the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer
Section 6(1) of the Act states
Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment; in essence that the conduct of the employer amounted to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”.
In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” an employer must be “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”.
Secondly, the Act at Section 1 addresses the issue of reasonableness. It is settled law that in considering a complaint of constructive dismissal, I must consider this issue either as an alternative to the contract test or in combination with that test. The reasonableness test asks whether the employer conducted its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving.
In the within matter the complainant submitted that the reduction in her provided shifts was unfair and breach of her contract of employment.
Conclusion
The Adjudication Officer concluded:
“Overall, I accept that the Complainant’s hours of work were reduced and this was linked to her request to move from the kitchen department to the housekeeping department together with her unavailability to work in the afternoons or at the weekends. Overall, in all the circumstances, I cannot find that the Respondent’s conduct was unreasonable to the degree that the Complainant could be justified as a result in terminating her employment by way of constructive dismissal nor was the Respondent’s conduct such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of the Complainant’s contract of employment.”
