Constructive Dismissal Case Succeeds and €25,000 Awarded to Employee-4 Observations

This case involved a security officer and a supermarket. The employee brought a number of complaints against his former employer, but the one I want to focus on in this post is the constructive dismissal claim.

Labour Court Appeals

Firstly, the employee overcame the odds stacked against any employee in a constructive dismissal case by winning. A recent review of 200 unfair dismissal cases found that only 9 out of 63 constructive dismissal cases were successful-that is, a success rate of 14%.

Secondly, this case was heard over 6 days. I do not know how much time was taken each day, but if you estimate two hours each day as an average the legal/professional representation costs for both parties could be significant.

Imagine being the losing employer in this case and having an award of €25,000 made against you on top of the time and costs associated with attending a hearing on six separate occasions. Time off work for witnesses, professional representation, and so on.

Thirdly, the adjudication officer referred to the two tests you must check in a constructive dismissal case:

  1. The contract test
  2. The reasonableness test

The contract test demands that the employee show the employer was guilty of a fundamental breach of contract.

The reasonableness test requires the employee to show that it was reasonable for him to resign given the egregious conduct of the employer, conduct which the employee could not be expected to continue to endure.

Either of these tests can be invoked, according to this adjudication officer.

Fourthly, the adjudication officer refers to the general proposition that an employee is obliged to engage with whatever procedures are open to him/her in the workplace before resigning. The most obvious procedure would be the grievance procedure, but the dignity at work policy would also be widely used by employees to ventilate issues and give the employer the chance to put right what is claimed to be wrong.

This is a piece of advice I repeatedly give employees, notwithstanding that their grievance may fall on deaf ears. It is important to be able to show, if you are an employee, that you behaved ‘reasonably’ and used the procedures open to you.

The adjudication officer referred to the leading case on this point, Margot Conway v Ulster Bank Limited UD 474/1981 in which the Employment Appeals Tribunal held

“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”

Principles from WRC cases

You can learn a lot from WRC decisions and learn many of the principles that have been established in various areas of employment law simply by reading the determinations.

Often, the facts of the case are less important to me than a refresher from an adjudication officer about the principles and law which will be of vital importance in the particular type of claim under consideration.

New cases are published on the WRC website every week.


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