Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors reviews constructive dismissal cases where the employee did not exhaust internal grievance processes.

The issue of constructive dismissal has been raised by us on a number of occasions.

We thought it might be useful to review some recent decisions on this very issue. Reviewing ones where the employee has won, as well as those where the employee has lost.

In case ADJ5216, the Adjudication Officer has spent a considerable amount of time reviewing the case law in some depth. The Adjudication Officer has referred to a number of cases but including in particular the case of Berber –v- Dunnes Stores 2009 E.L.R.61 where Finnegan J stated:

“The conduct of the employer complaint 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”

The Adjudication Officer rightly pointed out that in such circumstances, the burden of proof is on the employee.

The Adjudication Officer referred to cases such as Kirwan –v- Primark (UD270/2003) and pointed out that going through the grievance procedure it must be a genuine attempt rather than simply going through it as a process. The Adjudication Officer also referred to the case of Barry -v- HSE Trading as HSE Northwest 2016 27E.L.R. 268 where it was stated:

“The Tribunal finds that the claimant did not give her employer an opportunity to deal with her complaint”

The case of Zabiello –v- Ashgrove Facility Management Limited UD1106/2008 was also quoted and in that case it was held:

“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 did not exhaust the grievance procedures before she resigned.

Accordingly the Tribunal finds that the claimant was not constructively dismissed.”

The Adjudication Officer has rightly pointed out that it is well established in law that the general rule is that the claimant must exhaust the internal process prior to lodging a claim with any external body. The Adjudication Officer, in our view, correctly pointed out that on occasions, and in very limited circumstances, when a claimant can prove, by the production of evidence that the invoking of the grievance process would be a fruitless exercise, the general rule can be dispensed with.

This is the exception in the case of Harkin –v- Guinness Storehouse Limited UD496/2015. In this case, the Adjudication Officer held that exception did not arise on the particular facts. In ADJ3817, the Adjudication Officer in that case held that the employee must prove it was reasonable for him to terminate his own employment due to a significant breach by the employer of a fundamental term of his employment contract or because of the nature and extent of the employers conduct and the circumstances in which the employee was expected to work it was reasonable to do so.

In both of the above cases, the employee was not successful.

In case ADJ3000, it was a case where it is noted that both parties were represented. The employee was successful in this case and obtained an award of over €26,000. In this case the Adjudication Officer has set out that the legal test in respect of constructive dismissal was provided by the UK Courts of Appeal in Western Excavating (EEC) Ltd –v- Sharp I.R.L.R. 72 which laid out two tests referred to as the contract and the reasonableness tests. It summarised the contracts test in the following terms as “if the employer is guilty of conduct which is a significant breach going to the route 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 other performance”.

The reasonableness test assesses the conduct of the employer and whether the conduct itself or the affairs are so unreasonable that the employee cannot fairly be expected to put up with it any longer and if so the employee is justified in leaving. The Adjudication Officer pointed out that the case of Berber –v- Dunnes Stores 2009 20E.L.R.61 held that the test for whether the employers conduct had breached the employed term of mutual trust and confidence in every contract of employment was an objective one.

The Adjudication Officer pointed out that there are cases where there are circumstances where an employee does not have to exhaust all internal grievance procedures prior to resigning, such is the case of Conway –v- Ulster Bank and Smith –v- RSA Insurance Ireland Limited UD1673/13 and Higgins –v- Donnelly Mirrors UD104/1979.

In this case the employer did have a grievance procedure and the Adjudication Officer found that there had not been compliance with same and held that there had been a failure to deal with grievances raised.

The issue of constructive dismissal is one where they are extremely difficult cases for an employee to win. As a general rule before an employee resigns they should go through the internal grievance procedure. This would mean issuing a grievance and an appeal.

If an employer receives a grievance in accordance with the Grievance procedure then of course the grievance should be investigated. Failure to deal with the grievance in a speedy manner or at all may assist an employee in bringing a successful Constructive Dismissal claim.

Any investigation by the employer should be a fair investigation.

Before an employee resigns without going through the grievance procedures it is imperative that the employee considers whether they will pass the test of effectively that they had no choice but to resign.

Where the employee has not gone through the grievance procedures that is a significant mountain which an employee is going to have to climb.

The reality of matters from reviewing decisions of the WRC is that the vast majority of constructive dismissal cases are lost and it is a small minority which are won and that the reason people loose these claims is that they have never gone through the grievance procedures or attempted to go through to grievance procedures.