Workplace Relations Commission: Solicitor awarded €13,300 in constructive dismissal case



Workplace Relations Commission
Workplace Relations Commission

A solicitor who was constructively dismissed by the new owner of a firm she had worked in for over 10 years has been awarded €13,300 in the Workplace Relations Commission.

The new owner sought to change the essential terms of the complainant’s employment contract, insisting that the office was a ‘new’ office and that her start date would not incorporate her 10 years’ service with the firm.

Finding that the complainant’s employer had conducted his affairs so unreasonably that the complainant could not be expected to put up with it any longer, Adjudication Officer Shay Henry rejected the employer’s suggestion that the complainant could have mitigated her loss by relocating to Dublin and taking one of the many legal jobs available there.

Background

The complainant, a solicitor, worked in a solicitors’ firm for 10 years when it was bought over by the respondent, Mr A, in November 2018.

The complainant’s case was that Mr A sought to impose a new contract which included a probationary period, and that her start date would not take into account the previous 10 years that she had worked in the firm. The new contract also provided for 12 days’ annual leave. Mr A said that he would not renew her Practising Certificate from the Law Society until he received the signed contract, and that he would not send the renewal form “until a good bulk of fee had been brought in” by the complainant.

From January 2019 until her resignation in March 2019, the complainant raised a number of grievances with Mr A, who failed to meet with her despite several requests.

In a letter dated 26 March 2019, the complainant stated that, due to Mr A’s unreasonable behaviour towards her and his refusal to address her grievances, she had been left with no other option but to leave her employment.

Soon thereafter, the complainant brought a claim to the Workplace Relations Commission seeking adjudication under section 8 of the Unfair Dismissals Act 1977.

Constructive Dismissal

The complainant contended that she was constructively dismissed.

Section 1(b) of the Unfair Dismissals Acts 1977 defines a dismissal as including:

“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”

Adjudication Officer Henry said it was necessary to consider whether Mr A’s conduct amounted to a breach of an essential term of the contract and/or whether his conduct was so unreasonable that the complainant had no alternative but to tender her resignation. He said it was clear from the evidence that Mr A sought to impose changes in the complainant’s contract in relation to her commencement date and holiday entitlement, and that these changes amounted to a breach of the essential terms of the complainant’s existing contract in place at the time of the transfer of undertakings.

Adjudication Officer Henry said it was clear that Mr A did not comply with the firm’s own procedures in relation to addressing the complainant’s grievances, and that the complainant was entitled to view the procedure relied upon as meaningless.

In all the circumstances, Adjudication Officer Henry concluded that the case met the ‘reasonableness test’ (i.e. whether the employer conducted his affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer).

Finding that the complaint of unfair dismissal was unfounded, Adjudication Officer Henry rejected Mr A’s suggestion that the complainant had made insufficient efforts to mitigate her loss.

Adjudication Officer Henry noted that the complainant secured alternative employment in June 2019, and that there were no suitable jobs in the region in the interim. Mr A had suggested that there were a significant number of jobs available in Dublin for those in the legal profession, however, Adjudication Officer Henry explained that “the individual circumstances of a complainant are relevant in determining what options are viable in order to mitigate loss” and that taking a job in Dublin would have required the complainant and her family to relocate. As such, he said that this was not a viable proposition.

Awarding €9,100 for loss of redundancy rights and €4,200 for loss of earnings, Adjudication Officer Henry ordered Mr A to pay €13,300 in compensation.

© Irish Legal News Ltd 2020



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