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  • Submit a Grievance before you resign

    Because a number of events occur at work which the employee believes have occurred to cause her detriment the employee, out of sheer frustration, resigns her position but claims that she had no alternative to do so: for the sake of her health and sanity. She claims Constructive Dismissal, stating that her employer knew that she was not happy with her work conditions, but can she do so?

    What is Constructive Dismissal?

    Section 1 of the Unfair Dismissals Act, 1977, 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

    That is, the employee, while not dismissed by the employer, resigns but then submits an Unfair Dismissal Claim against the employer in the guise of a Constructive Dismissal Claim on the basis that the employer was in breach of Contract.

    Recent Labour Court Decision

    This issue came for determination by the Labour Court (by way of Appeal from a Decision of the Adjudication Officer) recently in the case of Catherine Flynn v Tusla Child and Family Agency [Determination No: UDD 1810] issued on the 9th February 2018.

    The Facts

    This case involved a claim of Constructive Dismissal. The complainant employee, Catherine Flynn, submitted that due to her working environment at Tusla she had no option but to resign her position with the respondent employer. She did not file a formal Grievance with her employer before her resignation, setting out all her issues and giving her employer an opportunity to consider her complaints.

    Her Contract of Employment

    At the commencement of her employment the Complainant was provided with written terms and conditions of employment which referenced a Grievance procedure, as follows: –
    You have the right to seek redress in respect of any aspect of your terms and conditions employment under the Health Service Executive Dublin North East Grievance procedure. Should you have a Grievance you should follow the Grievance procedure which will be issued to you on commencement of your employment.”

    It was accepted by her representative at the Labour Court Hearing that the complainant had not instigated the Grievance procedure before she resigned.

    Email delivered to employer on date of resignation.

    In an email to her employer on the date of her resignation the complainant detailed the grounds for her resignation which included her transfer from Portrane to Lucan, the cessation of associated benefits/ expenses and the high risk environment she worked in. It was claimed by the complainant that the respondent did not, subsequent to her resignation, investigate the reasons for her resignation and did not offer her alternative reasonable accommodation. The complainant sought re-instatement or re-engagement, and if not compensation.

    The Law on Constructive Dismissal

    In her Decision Ms Caroline Jenkinson, Deputy Chairman, stated that the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment.

    Section 1 of the Act envisages two circumstances in which a resignation may be considered a Constructive Dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his position, often referred to as the “contract test”. This requires that an employer 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” as held in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.

    Secondly, there is an 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 conducted 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, if so she is justified in leaving.

    No Grievance raised

    Ms Jenkinson stated that in Constructive Dismissal cases, where the Complainant claims that the employer acted unreasonably the Court must examine the conduct of the 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 Complainant told the Court that she did not raise a Grievance at any time with the Respondent before making the decision to resign. She said that she was aware of the Respondent’s Grievance procedure and had a copy of the Staff Handbook containing the procedure. The Complainant contended that her email resignation letter of 4thApril 2016 was in fact the raising of a Grievance.

    The question for the Court to decide was whether, because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for her, to terminate the contract of employment.

    Dismissal of Claim

    The Court indicated that it was for the complainant to establish the facts which justified her terminating her employment. The Court felt that an employer cannot be expected to address an employee’s Grievances in circumstances where an employee failed to notify it of their issues. Therefore, the Court concluded that the complainant had not been constructively dismissed, particularly in circumstances where she had failed to address her Grievances before resigning.

    Constructive Dismissal – Lessons learned?

    While the Court is not saying that it is absolutely necessary in every case that an employee, to be successful in a Constructive Dismissal Claim, must submit a written Grievance before resigning, it is extremely unwise for an employee to resign without first submitting a Grievance and giving the employer the opportunity to investigate and seek to resolve the Grievance. There could be cases where the employer`s conduct was so unreasonable that the employee could not, or could not have been expected to, raise a Grievance before resignation.

    Whereas in a normal Dismissal Claim, where the employee is dismissed and the employer must prove that the Dismissal was fair, in a Constructive Dismissal Claim it is the employee who must prove in the first instance that conditions were so bad that it was reasonable for her to resign.

    An employee must therefore think very seriously before resigning if she is to consider a Constructive Dismissal Claim.

    For further information on Employment Claims contact:
    Brian Morgan
    Morgan McManus Solicitors

    Web: brilliantreddev.co.uk/morganmcmanus
    Email: bmorgan@morganmcmanus.ie
    Ph. No.: 00353 47 51011