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:

Constructive Dismissal-The Burden of Proof on the Employee is a Heavy One

Constructive-Dismissal-Solicitors

Can we be honest?

Constructive dismissal cases are difficult to win because the burden of proof is on the employee to prove that she had no other option but to resign due to the unreasonableness of the employer.

The January, 2013 decision of the Employment Appeals Tribunal in the case of Daniel O’Gorman v Glen Tyre Company Limited illustrates this.

In this case Mr. O’Gorman was a mechanic who had gone on sick leave in May, 2010 and did not return to work. He resigned from his position in September, 2010.

Mr. O’Gorman brought a case for constructive dismissal.

Decision of EAT

The Employment Appeals Tribunal in its decision referred to the burden of proof on the employee as being a ‘very high one’. It held that the employee must prove that his resignation was not voluntary.

The EAT must look at the contract and decide whether there has been a significant breach of the employment contract going to the root of the contract.

If there has not been a breach by the employer the EAT will then look at the conduct of the employer and employee and decide on the ‘reasonableness’ of the decision of the employee to resign.

The claim by the claimant for constructive dismissal fell under three headings:

  1. The excessive workload placed on him
  2. Exclusion in the workplace, for example at lunch breaks
  3. Being bullied and harassed in the workplace.

Mr. O’Gorman suffered from Asperger Syndrome.

Mr. O’Gorman left work in May, 2010 and did not return due to stress, according to his parents and GP who stated it was work related. However, the employer stated that he did not know this until he received the 2nd medical certificate.

The EAT held that it is crucial in a constructive dismissal case that the employee fully informs the employer of the complaints being made against him and gives the employer the opportunity to resolve the problems.

Interestingly, the EAT in this held that the parents of the claimant had a duty to let the employer know of the issues.

The EAT found no significant breach of contract going to the root of the contract which would have prevented the employee from carrying out his duties as per the contract.

The EAT then examined the conduct of both parties and found that the decision of the employee to resign was not a reasonable one.

The claimant’s claim failed.

Read the full decision here.

You may also want to read about the 2 tests used in constructive dismissal cases and  about unfair dismissal and constructive dismissal in Ireland.