A Constructive Dismissal Story (Agnieszka’s Story)

constructive dismissal story

There’s a Polish woman (Agnieszka) from outside Maynooth who came to me one day about 15 months ago.

She told me a story I found hard to believe.

But I can assure you it was true.

She told me she came to Ireland about 12 years ago and got a job in a shop. Agnieszka was excellent at her job, friendly with customers and colleagues, worked hard and did everything that was required of her.

She got on well in the job, so much so that after 27 months she was promoted to manager of the shop. She continued to do a good job, and got great feedback from her bosses and from the shop’s customers, and her colleagues.

Then, approximately 6 weeks before she came to visit me, she was visited in her shop by the company accountant/financial controller (Phillip) and a director (Sinead).

“We need to speak to you urgently Agnieszka”, they said.

“No problem”, Agnieszka responded. “Nothing serious, I hope?”

“Actually, there is a serious problem which we have just uncovered. Can we speak to you in the store room?”

“Sure”.

Agnieszka was puzzled, but not yet overly concerned.

Once they entered the storeroom Phillip and Sinead quickly got down to business.

They told Agnieszka the gross profit margin for the last 6 months in her store was unacceptably low, and had dropped from 23% to 19%, and they concluded there must be a “serious problem” in the shop. As Agnieszka was the manager they were there to get an explanation from her.

Agnieszka was completely flummoxed and taken aback. It was like a bus had hit her. She noticed, too, that the demeanour of Phillip and Sinead was less than the usual friendly tone they adopted with her.

They told her they were going to have a meeting the next day at head office, and Agnieszka was to be there, but she was not told what type of meeting it was.

Agnieszka spent that evening and next morning worrying about the issue raised, and what might have caused the problem of the falling profit margin.

Could it have been an error with the stocktake? Could it have been a mistake in entering a delivery or invoice?

She was also concerned about the change in tone, and the way that Phillip and Sinead had spoken to her when they came to the shop.

The next day Agnieszka waited anxiously in reception at head office at 2.30 pm, waiting for the meeting.

She chatted with Sheila, the receptionist, trying to take her mind off the anxiety she felt in the pit of her stomach.

When Sinead and Phillip arrived, they immediately said to Agnieszka, “you can bring in Sheila to the meeting, as a witness”.

“Why do I need a witness?” Agnieszka asked.

“You might be more comfortable”, Phillip replied.

Agnieszka went in alone as she did not know Sheila very well, and, besides, she could not understand why she would need a witness if they were only going to have a meeting to try to sort out the apparent problem with one profit margin report.

Once inside the office it was clear that Phillip and Sinead had one thing in mind: Agnieszka’s resignation from her job.

They produced a sheet of paper, typed up, with a space at the bottom for Agnieszka’s signature.

It was a resignation letter. Agnieszka was stunned, and became upset.

They quickly pointed out that if she resigned they would give her a reference, and she could get another job easily enough; if she didn’t then there would be no reference and she would have great difficulty getting a job in Ireland again.

Agnieszka was astounded at the turn of events. She could not believe it. It seemed like a bad dream.

She had done nothing wrong, was in the job 12 years, had worked extremely hard and showed great diligence and loyalty, and, finally, it came down to this.

She refused to sign. No way was she signing that letter of resignation, it would look terrible, and she needed this job.

Her husband, Wojciek, had recently lost his job in a warehouse and she was the only breadwinner in her household, and they had two young children.

But the pressure mounted, the afternoon dragged on, the veiled threats became more explicit, and Agnieszka was reduced to tears.

After what seemed like the afternoon, but was probably no more than 1.5 hours, Agnieszka relented in order to have the meeting and the pressure stop, and just get out of there and go home,  and she signed her resignation letter.

Phillip and Sinead shook hands with her, reassured her she had done the “right thing”, and wished her well for the future, told her she would have her P45 and final pay within days.

The next day Agnieszka could not believe what had happened, and had a sick feeling in her stomach for weeks.

She began to do a bit of research online, and Googled terms like “unfair dismissal”, “constructive dismissal”, “forced resignation”, etc. The more she learned, the angrier she got.

Eventually, after some prompting from friends and Wojciek, she made an appointment to see me to see what her rights were, and what redress she may have, if any.

Constructive Dismissal?

It seemed to me that she had a strong case to bring a claim for constructive dismissal. The factors that would support her claim were:

  • The absence of a fair disciplinary procedure,
  • not knowing in advance she was being invited to a disciplinary hearing,
  • not being told she was entitled to representation,
  • not being given the chance to put her side of the story,
  • being pressured into resigning her employment,
  • not being given a letter in advance setting out the allegation in sufficient details that she could challenge it
  • being threatened with no reference if she did not resign and was dismissed.

I submitted a claim to the WRC for constructive dismissal and we were eventually given a hearing date approximately 20 weeks later.

Just before the hearing, a solicitor acting for the employer in this case contacted us and offered a derisory “nuisance” type sum of money to settle the claim.

I had to advise Agnieszka that I could not advise her to accept is, although it was entirely her decision.

She agreed with me, though, and the case went ahead on the scheduled day.

Constructive dismissal cases can be difficult cases to win because the burden of proof of an unfair dismissal shifts from the employer to the employee-remember it is the employee who has terminated the employment in a constructive dismissal case, not the employer.

There are certain required recommendations I would advise any employee contemplating bringing a claim for constructive dismissal. The most important one is that the employee should, if possible, exhaust any internal grievance procedure before resigning.

This did not happen in Agnieszka’s case. So, this was a concern, but not fatal as there is decided case law on this point which supports the proposition that it is not always essential.

Another factor she had to face in the hearing was she was the only witness to support her version of events. On the employer’s side Phillip and Sinead were going to put forward a consistent and different account of what happened at the fateful meeting where Agnieszka resigned.

The case itself was a tough one for Agnieszka because she had no idea whether the WRC adjudicator believed her account or the employer’s, and she was, to a large extent, on her own even though she had me with her to represent her.

She was still the only witness on her side of the dispute, though, and that’s never easy. But she was happy to get a formal forum where she could put her version of events, and describe how she felt about the way she was treated.

She was relieved when the whole ordeal was over, and she said she felt a certain liberation from having the chance to tell her story to an impartial adjudicator, even if she did not win the case.

Thankfully, that adjudicator was sufficiently impressed with her story and the explanations of what had happened, accepted that she was very poorly treated, and that she was constructively dismissed.

He also made a generous award-approximately 9 months’ salary-and was very pleasing to Agnieszka.

She was delighted, and felt vindicated.

She had been badly and unlawfully treated, stood up for herself, put her case before an independent adjudicator at significant personal cost, and the adjudicator had agreed with her.

Conclusion

It is worth repeating that constructive dismissal cases can be difficult to win, and each case will be judged on its particular facts and circumstances.

The facts of Agnieszka’s case were strong enough to support the argument that she was put under significant duress to resign and she was not given fair procedures or natural justice. For those reasons, she won her case.

I hear from people every week, however, who are considering quitting their job and wondering whether they will have a claim for constructive dismissal.

I always tell them the same thing, which is summed up in these two articles on my website:

A Warning Employment Law Story for Employers

employers unfair dismissal story

Let me tell you a story.

Last year a small shop owner in Westmeath, Mick*, faced a claim from a dismissed employee on the grounds of unfair dismissal. The employee, Séamus*, worked for Mick for about 18 months, or so.

The background was typical enough.

Seámus started off well in the job, full of enthusiasm. Mick hoped Séamus would take the pressure off him once he learned the ropes and got a bit of experience.

As time went on, however, and particularly after Séamus had been in the job for 12 months, his performance dropped.

He showed less interest in the job, got himself a new girlfriend, a second hand car, and had much less interest in working at the weekend, especially on a Saturday evening.

His timekeeping got sloppy, too, and there were complaints from customers that his attitude and tone in the shop was poor.

One Saturday in May, Mick had Séamus rostered to work on Saturday because Mick was going to his brother’s child’s First Holy Communion. He was looking forward to the break, and the few pints and a bite to eat with “herself”.

An hour before Séamus was due to start Mick received a call from Séamus’s mother telling him that he wasn’t well and wouldn’t be able to come in.

Mick was furious, absolutely fuming, and suspected the only thing wrong with Séamus was a stonking hangover because he was seen out in the pubs on the Friday night.

Mick had to stay in the shop because he was short staffed,  and had to pass up going to the First Holy Communion. He felt really let down-gutted, in fact.

On Monday, Mick resolved to tackle Séamus about his absence on Saturday and get to the bottom of it.

When Monday came around it transpired Séamus had made a remarkable recovery, so much so that he starred for the local junior team on the Sunday.

When Mick went to discuss the situation with Séamus he was not in the best frame of mind, especially after hearing about the footballing exploits of Séamus the previous day.

The conversation between the two men started off on a bad footing, and soon went downhill rapidly.

It ended up with Mick telling Séamus that he “was taking the piss” and he wouldn’t stand for it any longer He said he was very disappointed with him, and heard he had played football the previous day.

“I can’t trust you now, I’m afraid”.

He told him he could go back home to his mother, and play his football but he wouldn’t be working for Mick anymore.

He would have his P.45 in a few days when the bookkeeper came in.

About a fortnight later a solicitor’s letter arrived at the shop. The letter stated that Séamus had “clearly been unfairly dismissed” and that he wanted, and was entitled, “to be compensated for his loss of income”.

Soon after Mick received a letter from the WRC (Workplace Relations Commission) telling him that an unfair dismissal claim has been made by Séamus.

But that was only the start of it as there was also claims for failure to give the required notice, failure to give a written contract, failure to give proper rest breaks, failure to pay the correct pay for annual leave and public holidays.

Mick went to his own solicitor about the case and made it clear he would not consider taking Séamus back, or compensating him.

His exact words were “I’ll have a beard sweeping the floor before I’d give that smart-arse waster his job back or let him back into my shop”.

Approximately 20 weeks later Mick’s solicitor received notice of the hearing date with the WRC in Lansdowne house, Dublin 4.

Mick’s solicitor strongly advised him to try to settle the case because on the unfair dismissal claim alone he was in a very weak position, having failed to follow any procedure at all.

To make matters worse, he was offside in relation to the minimum notice claim and the written contract claim, so these could not be won either.

As for the claim about getting the right rest breaks? Mick was adamant Séamus had got enough breaks, but unfortunately for Mick he had no records that he should have kept in accordance with the Organisation of Working Time Act Regulations.

So, Mick had no choice-he had to settle. It killed him but it could have been worse if the case went ahead to a full adjudication hearing.

All in all, the whole mess cost Mick approximately €23,500.

The maximum Séamus could have been awarded for the unfair dismissal would have been 2 years’ salary, so the €23,500 it cost Mick was being viewed by Mick in that context.

Nevertheless, it was €23,500 of after tax income he could ill afford to be handing out in compensation and could have used it to replace a fridge or help upgrade his deli.

Lesson for Employers

Mick made a fatal mistake in this tale. He dismissed without any procedure, and let his hurt and pride overrule his good judgment.

If an employee is dismissed without a fair or proper procedure, almost always it will constitute an unfair dismissal.

Employers also need to be careful to ensure that all employees have a written contract of employment, and to maintain work records and records of rest breaks and annual leave.

 

*Note: Mick and Séamus are not the real names of employer and employee.

The Range of Reasonable Responses in Unfair Dismissal Cases

unfair dismissal claims

If I am representing an employee in an unfair dismissal case I will nearly always argue that the sanction of dismissal was excessive and disproportionate.

That a reasonable employer would not have gone that far, and a lesser sanction would have been more appropriate.

The employer, or his representative will claim that the action was reasonable.

What is reasonable? What is excessive? Disproportionate?

Who decides? The employer? Or the decision making body such as WRC or Court?

Courts and decision making bodies in unfair dismissal cases, when assessing whether an employer’s response to penalising the employee in an employment law dispute, have long recognised that they will not substitute their judgment for that of the employer.

This means that once the employer’s sanction of the employee falls within a range of reasonable responses, the WRC or Court will not take on the role of employer in deciding what is appropriate in the circumstances. Instead, it will decide whether the employer’s response falls within a range of reasonableness in the circumstances.

What’s appropriate and reasonable in the circumstances will also vary widely, and what may be an appropriate penalty in one workplace may be disproportionate and excessive in another.

Let’s take a look at the principle of the range of reasonable responses, and how the decision making bodies come to an assessment of the employer’s decision.

The Employment Appeals Tribunal (EAT) have held,

“………the task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses”. (McGee v Peamount Hospital)

The decision making body will look at the circumstances of each case and decide whether the response of the employer falls within the band of reasonable responses. In doing so, the WRC or Court will look at things like

  • The gravity of the conduct leading to the dismissal
  • The size of the employer’s workforce and resources
  • The employee’s background and length of service
  • Any other relevant facts.

It is important to note that what may be reasonable for one employer may not be held to be reasonable in respect of another employer. This is because a large employer will have far more resources than a small outfit and will be able, perhaps, to consider a sanction short of dismissal, such as redeployment or other alternatives, which will not be open to the small guy.

In the UK Lord Denning, MR, stated in British Leyland UK limited v Swift (1981),

“the correct test is..was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, the dismissal was fair. It must be remembered that in all cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view”.

Conclusion

Unfair dismissal cases can be expensive for employers, and there is many factors which will be considered in deciding whether the dismissal was unfair or not. Two significant factors are the presence or absence of a fair procedure in deciding to terminate, and whether the decision to dismiss falls within the range of reasonable responses.

15 Things You Should Know About Unfair Dismissal in Ireland

unfair dismissal-1

Are you confused about the law surrounding unfair dismissal in Ireland?

Do you know the difference between unfair dismissal and constructive dismissal?

You should, you know, before embarking on an unfair dismissal claim.

Or, if you are an employer, defending such a claim.

In this piece, I am going to give you 15 things in plain language to help your understanding, and prevent you taking out your metaphorical gun and shooting yourself in not just one foot, but both feet.

Let’s get started, shall we?

  1. The important acts are the Unfair Dismissals Act, 1977, which you can access here, and the Unfair Dismissals (Amendment) Act, 1993.
  2. Unfair dismissal arises when the employer terminates the employee’s employment; constructive dismissal arises when the employee resigns due to the conduct of the employer. In an unfair dismissal case the burden of proof is on the employer. In a constructive dismissal case this burden shifts from the employer to employee; this means the employee must prove he/she left the employment due to the conduct of the employer which he/she could no longer be expected to tolerate.
  3. You must bring your claim to the WRC (Workplace Relations Commission) within 6 months of the dismissal, unless you can show reasonable cause in which case you may be allowed 12 months by the WRC.
  4. Redress possible for the employee, if he/she wins, can be reinstatement, re-engagement, financial compensation.
  5. Financial compensation is financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances, subject to a maximum of 104 weeks remuneration. Receipt of social welfare payments by the employee is disregarded in calculating financial loss.
  6. An employee who is on probation, or who has less than 12 months’ employment is excluded from the rights afforded by the unfair dismissal legislation, although there are some limited exceptions, for example a dismissal arising from a discriminatory ground.
  7. A dismissal shall be deemed to be an unfair dismissal, unless there are substantial grounds for it.
  8. A dismissal will not be an unfair dismissal if it arises from one of the following: conduct, performance, redundancy, the employee being in breach of the law in order to continue in his position (eg loss of driving licence if it was essential to hold one to do the job).
  9. An employer must give an employee a written statement of the procedure to be used in dismissing him within 28 days of commencement of employment.
  10. You can also go to the Civil Courts with a common law claim of wrongful dismissal, but you cannot do both-you must choose between the WRC or the Civil Courts. A wrongful dismissal claim is basically a breach of contract claim, for example your contract of employment provided for 1 month’s notice and you only received 1 week’s notice. This is a clear breach of contract and allows you to go to the Civil Courts and sue for breach of contract/wrongful dismissal.
  11. If an employer is going to dismiss on the grounds of competence he should give the employee clear notice of the shortcomings, and sufficient time to improve. A performance improvement plan (PIP) is recommended, and I would recommend that this lasts for 6 months, or thereabouts.
  12. Even if an employee is to be dismissed he/she should be afforded fair procedures and natural justice prior to termination, unless situation if one of gross misconduct which may justify a summary dismissal. Here are 6 steps which should be taken in any fair disciplinary procedure.
  13. An employee on long term sick leave can be dismissed on the grounds of incapacity, that is, he/she is unable to fulfil the contract of employment. There are recommended procedures, however, before an employer should terminate an employee on long term sick leave.
  14. A decision making body such as the WRC or Labour Court will apply 2 well known tests to decide wither the employee was justified in leaving the employment in a constructive dismissal case.
  15. Being dismissed from your job can seem like the end of the world at the time. But some of the most famous, successful people were fired from their job at one time or another. Here is 10 ultra-successful people who were dismissed from their employment.

“I don’t know whether I have a case or not”

“I don’t know whether I should resign and forget about it”

Get professional advice before you take an action that you might regret later.

10 Famous People Who Were Fired (and the 1 Vital, Free Lesson You Need to Grasp)

famous people who got fired

Are you in danger of getting fired?

Perhaps you have been fired already?

Being fired does not define you as a person, you know. Not by a long shot.

But it can be traumatic.

There is one lesson, however, that you need to learn and apply to ensure you handle a sacking in the right way.

First, though, let’s take a look at some people who were fired from their jobs, and didn’t fare too badly afterwards, shall we?

Then, we’ll take  a look at the lesson.

  1. Steve Jobs

Steve Jobs was fired from Apple in his thirties-yes, the company he had created had shown him the gate.

He returned, though, and propelled Apple to become one of the biggest companies on the planet.

  1. Walt Disney

Disney was fired from the Kansas City Star in 1919. The problem?

His editor told him, “you lack imagination and have no good ideas”

  1. J. K. Rowling

Harry Potter creator, Rowling, was fired from the London office of Amnesty International where she worked as a secretary. Her passion was writing stories and her bosses eventually lost patience and gave her the UK equivalent of her P 45.

  1. Mark Cuban

You may not have heard of Mark Cuban if you are not interested in business. He’s an American business man with a company called MicroSolutions inc which is worth in excess of $2.4 billion.

Cuban was fired from his retail job in a shoe store because he was late one day to open the shop. (He was busy meeting a potential client for his fledgling business).

  1. Anna Wintour

Wintour became editor of Vogue magazine but her advice for fashion students: “I recommend that you all get fired”. She goes on to say that it was a wonderful learning experience.

She was fired from Harper’s Bazaar magazine as a junior fashion editor.

  1. Oprah Winfrey

Oprah was fired from Baltimore TV company WJZ-TV for being too emotionally involved in the stories.

  1. Truman Capote

Capote, writer of the wonderful “In Cold Blood” and “breakfast at Tiffany’s” was fired from his job at The New Yorker magazine.

Why? He left a reading of his poetry by Robert Frost because he had the flu. Frost knew where he worked and demanded he be fired.

  1. Thomas Edison

Edison invented the light bulb, and this work involve many experiments and trials. He was fired from his job at Western Union when an experiment involved some spilled acid eating through an entire floor of his workplace office.

  1. Mozart

Mozart had a position as a musician at the court of the prince-archbishop of Salzburg, but was shown the door, too.

  1. Carly Fiorina

Fiorina was the CEO of Hewlett-Packard, and was the first female CEO of a Fortune 500 country. She lasted 6 years before her decision to buy Compaq saw her being shown the door.

 

Closer to home there are many examples from the political and sporting spheres of successful people who were sacked, for example Claudio Ranieri, manager of the Premier title Leicester city was fired the following season.

One Vital Lesson

Being fired, as you will see from the above, is not fatal to your career, or your life.

How you react to it, and what you do next, is the critical thing.

Do you see the dismissal as a reflection of you as a person, or do you recognise that there are many factors as to why you may have been dismissed? For example, your performance, poor judgment by your boss, lack of objectivity by a decision maker, or perhaps a combination of these factors.

None of these things can be let define you, or dictate that “this is what I am”.

Also, you have a choice if/when it happens.

This choice is yours, and nobody can take it away from you.

The choice is how you react to the dismissal, if it happens.

Do you dust yourself down, pick yourself up, learn from it, and move on?

Do you separate the activity from you as an individual?

Dr. Viktor Frankel was a Jewish, Austrian psychiatrist who saw his wife, children, and unborn child murdered in the concentration camps during the second world war.

Frankel himself spent years in 2 or 3 of the worst camps, but while he was there he noticed something remarkable: the prisoners who fared best were those who comforted others, who gave their last piece of bread to other, more needy prisoners.

These prisoners recognised something vitally important: everything can be taken away from us, except the ability to choose how we will react in any given set of circumstances.

Money, prestige, books, property, clothes, food, water, your car, your job can all be removed from you.

But you can decide how you react. Nobody can take this from you.

This applies to a sacking too. You can let it destroy you, or you can choose to learn, move on, and grow.

What will you choose if it happens you?