Richard Grogan

In case ADJ10369, the AO had to deal with a claim of constructive dismissal and has helpfully set out the law.

The AO quoted Dismissal Law in Ireland by the late Dr Mary Redmond at page 340, where it is stated:

“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 to an employee should invoke the employer’s grievance procedure 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 AO quoted the case of Berber –v- Dunnes Stores 2009 ELR61 where it was 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.”

The AO in this case stated that the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. The AO pointed out that the reference to the employer’s conduct 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. In relation to the employee’s behaviour, the AO pointed out this normally refers to the efforts that the complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery. The AO pointed out that it was fatal that the employee had not followed the recognised process of having her grievance evaluated.

In case ADJ138034, the AO held that the employee was obliged to avail of the grievance procedure to be able to sustain a constructive dismissal claim.

Bringing a constructive dismissal claim

In general we would agree fully with the approach set out in these cases. The general rule is that before an employee can bring a constructive dismissal claim, they must have used the internal grievance procedure, and even if there is no grievance procedure, they should have raised their grievance with their employer so as to give the employer an opportunity to avail of it.

Even then, the employee must be able to show that the actions of the employer were so intolerable as to justify the employee resigning.

There may be times when the actions of the employer go beyond being intolerable and become oppressive or in breach of contract. There may be times where the employee, because of the actions of the employer being so bad that they, can resign without going through the grievance procedure but they will be an absolute minority of cases.

From reviewing decisions of the WRC, it is quite evident in relation to constructive dismissal cases that the numbers of complaints which are won by employees are extremely limited. The main reason these cases are lost is because the employee has not gone through the grievance procedure.

Before any employee considers resigning they should obtain legal advice. They need to understand and check out whether the actions of the employer will be judged to be so intolerable as to allow them to resign. They need to make sure that they comply fully with the internal grievance procedures.

Invariably this does not happen. They resign. Then they go to get legal advice. Then they often find themselves in a position that an experienced employment law solicitor will advise them that their chances of winning the case are minimal. This may even be in cases where, if they had used the procedures and if the employer had not rectified matters, that the employee would have had a good constructive dismissal claim. The fact that the employee may believe that the employer would have done nothing anyway if a grievance had been raised is not sufficient.

The importance of procedure

Unfortunately, constructive dismissal claims are ones where employees are invariably losing the case not because they don’t have a good case but because they have failed to follow the procedures which would have enabled them to win their case. This is an issue when we raise it with clients that they find difficult to accept.

However, the case ADJ9414 reinforces this, as there are a number of cases which were quoted by the AO in that case. In that case, the AO stated that the burden of proof is a very high one and it lies with the claimant employee. The employee must be able to show that the resignation was not voluntary. The case of Western Excavating ECC Limited –v- Sharp was quoted, where it was stated:

“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 herself as discharged from any further performance”

This is called the contract test. If this is not proven, then the AO must consider the reasonableness test. This test is that:

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

The AO in this case set out that there is a general obligation on the employee to exhaust the company’s internal procedures as set out in the case of McCormack –v- Dunnes Stores UD1421/2008 where it was said:

“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 employers conduct was so unreasonable as to make the continuation of the employment with the particular employer intolerable.”

The AO in this case again also pointed out the importance of exhausting the internal grievance procedure was also highlighted in the case of Terminal Four Solutions –v- Rahman UDA898/2011 where it was stated:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that the said remedies are unfair.”

In all of these cases, the employee lost. There is a trend in these cases. The employee did not use the internal grievance procedure.

In constructive dismissal cases, it is not an opinion that the employee believes they are entitled to resign. Rather it is “would an Adjudication Officer or the Labour Court believe it was reasonable for them to resign?”.

Our advice is simple: never resign without getting legal advice.

• Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.