Resigning during an Investigation or Disciplinary Process

Disciplinary Process and Constructive Dismissal

Can an employee who has been placed on an investigation and disciplinary process resign due to the unfairness of that process and later bring a claim for unfair dismissal by way of constructive dismissal?

Ordinarily, in order to succeed in a claim for constructive dismissal, an employee will need to demonstrate that the behaviour of the employer was so unreasonable that they had no other option but to resign. In the context of an investigation and disciplinary process, this may require a complete absence of due process and fair procedure.

Other aggravating factors would also be taken into account by the Workplace Relations Commission.

Disciplinary Process and Constructive Dismissal - Case Law

In the case of a Security Officer -v- A Security Company (ADJ0015050), the employee brought a complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1997.

In essence, the employee contended that the decision of the company to suspend him on foot of complaints made by a female colleague against him was disproportionate when compared to the treatment other employees received when comparable complaints were made about them. The HR manager for the respondent company presented evidence to the Workplace Relations Commission that the company had put in place a number of safeguards to ensure that the investigation and subsequent disciplinary process, if warranted, would be in accordance with best practice.

That being the case, the respondent company held that the resignation of the employee was unwarranted and unnecessary.

Disciplinary Process and Constructive Dismissal - Unfair Dismissals Act

The Adjudication Officer pointed to the relevant case law when making her determination. She noted that the definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

The issue for decision in this case is, taking into consideration the conduct of the respondent in relation to this former employee, and considering how the issue was addressed, was it reasonable for him, or was he entitled to terminate his employment?

Disciplinary Process and Reasonableness of Resignation

Considering the reasonableness of an employee’s decision to terminate his or her employment, in the case of McCormack v Dunnes’s Stores referred to in the respondent’s submission, the Tribunal concluded that:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his or her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make continuation of employment with the particular employer intolerable.”

In the Labour Court case of Caci Non-Life Limited v Daniela Paone [2017] UDD 750, the chairman, Mr Haugh the addressed the entitlement of an employee to terminate his or her employment due to a contractual breach by the employer:

“It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.”

Disciplinary Process and Resignation - Takeaways

The Adjudication Officer found that the employee had not demonstrated that the conduct of his employer was so unreasonable that he had to resign. Because of this finding, the Adjudication Officer decided that his complaint under the Unfair Dismissals Act was not well founded.

Further Information

For further information, please contact the author of this article, Barry Crushell.