Constructive Dismissal in Ireland

Burden of Proof in Constructive Dismissal Claims

In this case (ADJ-00013209), the complainant worked as a contracts manager with a façade systems manufacturer. He resigned after a particularly heated incident involving management. There had been some degree of tension between the complainant and management for some time. The complainant argued he had been constructively dismissed from his role.

As the complainant was claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus or burden of proof rests with the complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment.

The WRC noted the following cases:

The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In considering this issue, the WRC was satisfied that the respondent had an established Grievance Procedure and a Dignity at Work Policy in place, neither of which appear to have been invoked by the complainant. 

Having examined the facts as presented, the WRC found, on balance, that the complainant did not utilise the internal procedures available to him to process his bullying complaints. Therefore, the WRC concluded that the standard of reasonableness required to substantiate a claim of constructive dismissal, had not been met where the complainant failed to exhaust the procedures available to him before taking the step to resign, thereby not providing the respondent with an opportunity to address his grievance in a proper manner. 

Resignation after Grievance Procedure

In cases of constructive dismissal, the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered.

Generally, this 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.

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

In this case (A General Operative v A Community Organisation (ADJ-00017435)), the issue in dispute, the changed roster arrangement, was a relatively minor matter and could easily have been concluded through the grievance process.

Criticism of the investigation report was considered irrelevant to the complaint of constructive dismissal as it post-dated the complainant’s resignation. The Adjudication Officer held that the employee could hardly rely on events that happened after her resignation to retrospectively justify it.

Judged by the Berber test, and the general principles applicable to a constructive dismissal her case fell very far short of what is required both in respect of her employer’s and her own conduct.

Her decision to resign was precipitate and no particular fault could be attributed to the respondent ‘s handling of the matter.

Her claim therefore failed.

Constructive Dismissal and WRC Complaint

In this case (ADJ-00017582), the claimant employee did not indicate on his complaint form the date of termination of employment.

At the hearing, the respondent asserted that the fact of dismissal was in dispute and submitted that the claimant did not submit a clear resignation; that he was not in touch with the company since he left it; the claimant left the date of termination of employment box blank on his complaint form and that the claimant had never been issued with a P45 and had never sought one.

The claimant’s representative in response asserted that there had been no resignation and that there had been no dismissal.

In such circumstances , the claim under the Unfair Dismissals Acts is misconceived and the Adjudication Officer found that she have no jurisdiction to investigate the complaint lodged with the WRC under Unfair Dismissals Acts.

Constructive Dismissal or Redundancy?

In this case (ADJ-00015386), a customer service team leader was called to a meeting  to examine the continued viability of her role in the customer service department. There were subsequent negotiations about an alternative role but the complainant was never formally informed that her role was at risk, that the role would be made redundant and that she had to accept a revised position. Notwithstanding this, the employee resigned and later brought two claims, one citing non-payment of her redundancy entitlements and another for constructive dismissal.

The Adjudication officer noted that:

"While it is accepted that the respondent opened discussions about the non-viability of the post which she had held, they, at the same time, offered her a job with the same working hours and salary. The obstacle in the way of her accepting this alternative job on the same salary and conditions was the prospect of having to work on Saturdays. The complainant accepts that the respondent assured her that she would not be scheduled to work on Saturdays. The complainant’s ultimate reason for terminating her employment was her view that there was a lack of clarity about her job description. The complainant resigned before exploring the content of the alternative role with the respondent- the party responsible for determining its content. For a dismissal to take place on the basis of redundancy, a dismissal would have to take effect. No such dismissal occurred.

No notice of redundancy was provided to the complainant. I find that she was offered suitable alternative employment. While the complaint is taken under the Unfair Dismissals Act, 1977, the complainant’s entitlement to a redundancy payment even if she had been dismissed is vitiated by virtue of section 15 of the Redundancy Payment Act 1967.

I find that the complainant resigned her employment."

That being the case, the employee was deemed not to have exhausted the internal grievance procedure prior to her resignation and therefore, had no viable claim for constructive dismissal. 

Dismissal or Resignation?

In this case (ADJ-00013209), the complainant worked as a supervisor in a restaurant.

The restaurant received a number of complaints in relation to the behaviour of the employee.

The Managing Director of the restaurant met with the employee and advised her that they would be unable to continue rostering the employee if these complaints continued.

The employee interpreted this warning as a dismissal and subsequently filed an unfair dismissal claim before the WRC.

However, at the WRC, the respondent restaurant presented evidence that the employee had been rostered the following week, but never attended work.

On the basis of these facts, the WRC concluded that the employee was not dismissed, therefore she could not benefit from the Unfair Dismissals Act.

Unreasonable Behaviour of the Employer

In this case (ADJ-00026177), the complainant worked as a Stylist with the respondent. 

Among a number of disputes raised at the WRC, was a complaint seeking adjudication under under Section 8 of the Unfair Dismissals Act, 1977, in that she was forced to resign her role due to the conduct of her employer.

Breach of Contract - Justified Repudiation of the Contract

It was noted by the WRC that:

"... not every breach of contract will give rise to a justified repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

The complainant contends that she was constructively dismissed. It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and/or secondly, whether the conduct of the respondent was so unreasonable that the complainant had no alternative but to tender her resignation."

Unreasonable Behaviour of Employer?

In this instance, the respondent was adjudged to have reasonably responded to the concerns of the employee, by engaging a third-party HR consultancy to investigate her concerns and make such recommendations as were considered necessary. The complaint of unfair dismissal was not upheld.

Constructive Dismissal, Micromanagement and Surveillance

Introduction

In general, an employer will be precluded from covertly recording employees, without their consent, in any form.

Claims for constructive dismissals are generally based upon two tests: the contract test and the reasonableness test. In brief, the contract test ascertains whether the employee’s resignation arose as a consequence of a breach of contract by the employer, whereas the reasonableness test evaluates whether the actions of the employer were so unreasonable that the employee was left with no option but to resign.

Would the covert recording of an employee, without their consent, be a legitimate reason for that employee to resign and claim constructive dismissal?

In a recent case before the Workplace Relations Commission (WRC), it was held that the behaviour of an employer, in placing surveillance cameras on an employee, without her knowledge or consent, breached the trust and confidence between the parties, so irrevocably, that the employee was entitled to resign and claim constructive dismissal, as a consequence.

Background

The complainant in this case (ADJ-00012025), commenced employment as a dental technician with the respondent employer in 2016. By all accounts the parties had a very close personal and professional relationship. However, the complainant returned from annual leave to find a very crude and badly hidden recording device, strategically placed within the office, directed at her desk. the complainant was extremely upset and agitated by this, and having received no plausible explanation from her employers, as to why the device was installed, she subsequently tendered her resignation and submitted a claim for constructive dismissal.  

Law on Constructive Dismissal

Constructive dismissal is defined in s 1. of the Unfair Dismissals Act, 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 is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”.

The burden of proof rests with the employee in a complaint of constructive dismissal.

The tests for constructive dismissal were set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) IRL322, and repeatedly set out in subsequent complaints of constructive dismissal and described thus:

“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 discharged from any further performance”.

The reasonable test was expressed as:

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

Proving a Claim for Constructive Dismissal

The proofs which the complainant must advance to prove her case are that the behaviour of the respondent and of which she complains corresponds with the requirements laid out in one or both of the two tests and was behaviour which left her with no option other than resignation.

Did the respondent’s behaviour meet the threshold of behaviour so intolerable as to conclude that resignation was the only option?

Hidden Camera in the Workplace

It was accepted that a hidden camera was installed in the workplace. It was also accepted that the respondent chose not to disclose this to the complainant. There was nothing to suggest that the relationship was not one of trust, hereto.

The respondent asserted that the camera was installed for the complainant’s safety. He was nervous about her being on her own on the premises. The WRC held that this explanation did not sit easily with a total absence of any reference to questions to her while they were away as to intruders or any strange occurrences. Neither did it sit easily with the fact that the photographic images submitted to the hearing seem to show that the camera was trained on the desk at which the complainant worked and not the entrance. If it was to detect the comings and goings of people as the respondent stated, why was it not trained on the entrance? The WRC accepted that it might have been able to catch a wider frame than just the complainant’s desk but that did not explain its main focus.

Application to Present Case

The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: in considering the ‘reasonableness test’ stated

“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.”

This reference to the employer’s conduct is understood to represent something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

As no adequate reason was supplied as to why the device, intended for the complainant’s protection needed to be concealed, the WRC could not accept that it was merely there to protect the complainant. It found that the employer’s actions, though a once-off, were sufficiently damaging to the relationship of trust to which both parties are entitled.

Trust and Confidence

The WRC considered the respondent’s actions in intending to operate a concealed surveillance system amounts to a breach of the implied term of trust and confidence. It found that there had been a fundamental or repudiatory breach going to the root of the contract, entitling the complainant to resign and claim constructive dismissal.

The WRC found that the complainant was justified in her resignation, and met the tests set out in the above-mentioned authorities.

Furthermore, in the circumstances cited, the decision not to use the grievance procedure was held not to undermine the complainant’s complaint.

Constructive Dismissal and Raising a Grievance

Introduction

A recent case before the Workplace Relations Commission (WRC) examines the factors that will be considered when examining whether a ‘complaint’ or ‘grievance’ has been raised, before an eventual resignation, and the onus on both employers and employees with respect these processes.

In A Health Care Assistant v A Health Care Provider (ADJ-00025868), the employee had been employed by the employer since July 2004 as a Health Care Assistant and initially resigned on 23 July 2019 and later confirmed this on 29 October 2019.

Background to the Case

In May 2018 the employee raised concerns about her work environment with her Director of Nursing and a manager was designated to deal with them. However, a month later nothing had happened, and she wrote again about her workplace safety concerns.

In June 2018 she observed what she considered to be unfairness in how rosters were being drawn up for her grade.

Then, following certain other incidents she went on sick leave in October 2018 and did not return to work and eventually resigned.

The following February she set out a detailed grievance in writing about the behaviour of certain colleagues and asked to be transferred to a different location. She was invited to a meeting to discuss the grievance.

This took place on 11 March 2019, at which she learned that some investigation of her complaint had already taken place. She was asked whether she wished to proceed with her complaint informally or formally.

A few days later she indicated that she wished it to be processed formally.

The revelation that the issues she had raised had already been the subject of some investigation had a seriously adverse reaction on her to the extent that she had to leave her home and live elsewhere.

On 16 May 2020 she saw the Occupational Health Practitioner who deemed her not fit to return to work.

Then on 26 June 2019 she was surprised to receive a call telling her that in order to process her grievance she would need to provide further details (there had been a letter dated 06 June 2019 which the employee had not received due to her absence).

As a consequence of this she resigned on 23 July 2019.

Application of the Unfair Dismissal Act

Where an employee wishes to terminate their employment, it is relatively easy for them to do so by simply giving notice of their intention to do so and then resigning and in most, if not all cases, an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal, they will need to show just cause.

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

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered.

Generally, this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the employee’s resignation and something that represents a repudiation of the contract of employment.

The Employment Appeals Tribunal (EAT) has made it clear, in a series of decisions, followed by the WRC, that a  failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above.

In Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

"The Tribunal finds that the claimant does not give her employer an opportunity to date 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 any of the several avenues open to her."

And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the EAT 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."

This gives a good flavour of the burden of proof that falls on a employee.

Application to Present Case

The timeline of events set out in the submissions were largely the same and not in dispute.

This is important because to ground her complaint the employee needs to establish conduct on the part of the employer which justifies her breaking her contract of employment.

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

As previously mentioned, where an employer wishes to terminate the employment, there must be cause, this must be followed by a fair process and finally, the sanction of dismissal must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

Most complaints arising under the Unfair Dismissal Act follow the termination of the employment by an employer and the tests set out above will then determine whether the dismissal has been a fair one.

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

When an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal then that is a different matter.

There are generalised complaints about co-workers not attending to their duties, or how they treated her (not calling her by her correct name) and while there are some references to sexual harassment it would be hard to discern any prima facie basis for a bullying complaint, let alone the identification of one or more respondents.

In any event, the WRC found that the reaction of the screening officer in seeking to clarify this complaint was perfectly reasonable in the circumstances. The February letter did not represent a basis on which a formal investigation of bullying could proceed.

The employee’s contribution to the delay was also be considered. She was slow enough to confirm her preference for a formal investigation and was non-contactable when the employer sought to move the matter forward.

When asked to provide the necessary clarification she actually refused to do so, apparently because she was frustrated with the delay in dealing with her complaint.

The requirements of fair procedure, the WRC confirmed, was a two-way street, in that employees against whom a complaint is made have rights in respect of the detail of any accusation they have to answer.

For this reason, the making of a complaint is not something that should be undertaken lightly. The employee was professionally represented by her trade union at the hearing but had failed to engage its advice at the time of making the complaint. The WRC noted that it is hard not to feel some disquiet about the fact that the employee was actually on sick leave throughout this process, but whether this was a factor in her decision making was not raised at any stage.

The eight-week March to May delay was unacceptable (and this was accepted by the employer at the hearing) but, taken on its own, and it is the only example of an inadequate response on the part of the employer, it comes nowhere close to grounding a justification for the employee’s resignation as a constructive dismissal, especially as the employee was on sick leave and absent from the workplace.

The employee relied on the test in Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 where the court held;

"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. If he does so, then he terminates the contract by reason of the employer’s conduct."

It will be clear from the facts above that the conduct of the employer did not fall within this ‘contract test’ and the complaint failed.