This employee was awarded €50,000 in a constructive dismissal claim and what won the case for her was the emails she discovered between certain of her employer’s management.
There are a number of unusual and noteworthy features in this case.
Firstly, it is worth remembering that winning a constructive dismissal claim is extremely difficult because the bar is “very high” for an employee:
“The contract test is more stringent than the test of reasonableness. Yet they have been provided in the form of alternatives. Whichever test is applied, as was observed by the Employment Appeals Tribunal in one of its last constructive dismissal determinations ‘[t]he bar for constructive dismissal is very high’.”(Redmond on Dismissal Law, 3rd edition)
Avail of internal procedures first
And the advice that I, and other employment lawyers, would always give an employee is you must exhaust the internal grievance procedures in the workplace in order to have any chance of succeeding with a constructive dismissal claim. For you must give the employer the chance to put right what you say is wrong and allow him to amend his unreasonable behaviour.
Yet in this case the employee did not avail of any such procedures and still won.
The employee worked in sales and had been recruited in Canada to work in Ireland. Her sales figures saw her being put under pressure in the workplace as to her performance and she ultimately resigned her position and brought a claim for constructive dismissal.
The hearing went on for three days and was fully contested by both sides with the assistance of solicitors and counsel for both parties.
The difficulty the employee faced in this case was two fold, in my view:
- The inherent difficulty in winning a constructive dismissal claim
- Her failure to avails of whatever procedures were open to her prior to her resignation
Data Access Request
However, the complainant had made a data access request at some point and this request was complied with between the second and third day of the hearing. This is where the smoking gun(s) were to be found.
First, though, counsel for the employer claimed legal privilege over these emails. This argument was rejected by the adjudicator who found there was no legal context to the emails and they were merely communications about the complainant between two senior managers of the respondent.
Counsel also argued that they should be “contextualised” but the adjudicator found the meaning of the emails was clear and unambiguous and was satisfied she understood the context. Some of the emails included the following:
“I have a call scheduled tomorrow with our lawyer to discuss options with V. Remember that Irish laws are a bit more towards the employee (the EU is socialist don’t forget…)..”
On the 5th of April he states :
“But V hasnt put much effort on generating her own leads. Ive made up my mind I am letting her go in the next few weeks…”
“V is a problem that needs to be fixed”
Mr B states on April 5th:
“I am concerned that we are dismissing her without written notice, at the very least we should have a quick conversation with our accountant or a lawyer. The cost of not doing so could be very significant.”
“Like I said Im having our law firm come up with our options in order to avoid any wrong doing on our part.”
On the 17th of April an email between the men confirms that they are looking at a replacement:
“I don’t want to hire (her) until we are quite sure V will not be around”
The adjudicator went on to look at the two limbed test for constructive dismissal: the contract test and the reasonableness test.
As endorsed by the Labour Court in Paris Bakery & Pastry Limited v Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp  1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:
“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 himself as discharged from any other performance.”
The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”
In Ireland, it is accepted that the two tests are often used interchangeably, but it is very clear, and accepted by all, that the bar for constructive dismissal is “very high” for an employee. See “Redmond on Dismissal Law” (3rd Edition, Para 19.08) where it states:
“The contract test is more stringent than the test of reasonableness. Yet they have been provided in the form of alternatives. Whichever test is applied, as was observed by the Employment Appeals Tribunal in one of its last constructive dismissal determinations ‘[t]he bar for constructive dismissal is very high’.”
The Workplace Relations Commission adjudicator found, inter alia,
On balance I fully accept that the Complainant’s decision to tender her resignation was reasonable. The Employer herein did not engage with the Employee in a meaningful way. The Complainant had impossible targets foisted upon her. There is no suggestion that the Complainant was not performing the function she was engaged to perform. It is accepted that she was having some success and there is no evidence that the results she generated (as a competent and able salesperson) could have been improved upon by a hypothetical salesperson operating with as little support.
I accept fully that the Complainant felt that the outcome had been orchestrated because, as it happens, it was.
The Complainant did not utilise the grievance procedure and did not give the employer any notice of her intention to resign and claim constructive dismissal and I accept that this was a situation where the outcome would have been the exact same.
It remains sound advice that any employee contemplating resignation should firstly avail of all internal procedures in the workplace before resigning.
It is also sound advice to bear in mind that all communications in the workplace may come under scrutiny later on in the event of a dispute or employment claim once a data access request is made by the employee.