“Did you avail of the internal grievance procedure before you resigned?” This is one of the first questions I ask any employee who comes to me for advice about bringing a claim for constructive dismissal.
It can be easily established from the case law that a case for constructive dismissal will almost certainly fail if the internal procedures have not been utilised.
The employee will say, “but it would have been a waste of time, my grievance would not have succeeded or been upheld”.
That is not the point. The point is when you go to the WRC with a claim for constructive dismissal you will be able to portray yourself as the reasonable one. And that you have clean hands. Because you did everything possible withing the workplace to resolve the issues which forced you to resign.
We recently represented an employer in a constructive dismissal case.
One of the arguments we advanced (repeatedly) was that the employee did not use the grievance procedure. In this particular case that would have been difficult as the complaint was against one of the directors and owners of a small company.
But you must go through the procedure available. Even if you believe it is a complete waste of time and is bound to fail.
The adjudicator found in our favour in this case and held that the employee’s claim for unfair dismissal should fail.
He also looked at the case law around constructive dismissal and referred to a Labour Court decision in Tusla v Flynn UDD18109(2018) in which the Labour Court held,
“As the complainant is alleging constructive dismissal, the fact of dismissal is in dispute and the onus of proof rests with the complainant to establish facts to prove that the actions of the respondent were such as to justify her terminating her employment. Section 1 of the Act envisages two circumstances in which a resignation will be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to resign his position, often referred to as the “contract test”. This requires that an employer be “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 himself as discharged from any further performance” as held in Western Excavating (ECC) Ltd v Sharp(1978) IRL332.
Secondly there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so she is justified in leaving.”
Internal grievance procedures
Referring to using the internal procedures available to the employee the Labour Court held
“In constructive dismissal cases, where the complainant claims that the employer acted unreasonably the Court must examine the conduct of the parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited, UDA474/1981.”
The decision of the Adjudicating Officer refers to an EAT decision in Reid v Oracle EMA Limited, UD1350/2014, in which the Tribunal held
“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”
Berber v Dunnes Stores (2009) Supreme Court
Reference was also made to Berber v Dunnes Stores (2009) IESC 10, a Supreme Court decision, which set out 4 principles as a test for constructive dismissal:
“1. The test is objective
2. The test requires that the conduct of both employer and employee be considered
3. The conduct of the parties as a whole and the accumulative effect must be looked at
4. 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.”
Constructive dismissal cases are difficult to win. It is practically impossible if you resign without having availed of whatever procedures are available in the workplace.