The case of Eddie Byrne versus Secto Services Limited is a constructive dismissal case that is worth a close review.
Firstly, the employee, Eddie Byrne, ticked the wrong box on the WRC online complaint form. He intended to bring a claim for constructive dismissal but did not tick the unfair dismissal box, he ticked the minimum notice one-that is, under Minimum Notice and Terms of Employment Act, 1973.
The employer’s representative (IBEC), as you would expect, submitted a preliminary objection that the WRC adjudicator could not hear the case as it did not have jurisdiction. The employer claimed that Byrne had indicated in three separate locations on the claim form that his claim was under the Minimum Notice complaint. For this reason the claim could not now be heard as one of constructive dismissal.
Thee employer also pointed out that the employee would have received at least three letters from the WRC and each of these would have indicated his claim was under the Minimum Notice and Terms of Employment Act, 1973.
The employer claimed that ignorance of the law was no excuse, and the WRC adjudicator could only amend the claim if the mistake was “of an administrative or clerical nature”.
The employee claimed it was always his intention to bring his claim for constructive dismissal and this was clear from the detail he put in his form.
The adjudicator held that he would hear the claim for it was clear from the detail set out in the body of the form itself that the employee was claiming “constructive dismissal”.
He pointed out that the WRC online complaint form is not a statutory form and is intended as a means by which the complainant sets out the essence of his complaint.
He referred to The Labour Court which has cited the case of County Louth Vocational Education Committee v The Equality Tribunal  IEHC 370.
The Labour Court cites the judgement of McGovern J:
‘I accept the submission on behalf of the respondent that the Form EEl was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EEl, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’
The adjudicator in this case held that the key phrase was a claim could be amended by the WRC adjudicator ‘where the justice of the case requires it’ and it should be permissible to amend a claim ‘as long as the general nature of the complaint remains the same’.
It was clear from Byrne’s complaint form that he was referring to constructive dismissal in the body of his complaint as he stated “Just to outline my grievance in relation to this application on grounds of Constructive Dismissal….”
The adjudicator went on to find that there “were no material aspects of the narrative on which the complainant relied which were not known to it in advance, and it had a full opportunity to address them in the course of the hearing. The circumstances of the termination of the complainant’s employment are fully addressed in the respondent’s submission.”
In other words, the question of the employer being ambushed or being taken by surprise at the WRC hearing did not arise as the employer’s representatives had fully dealt with an allegation of constructive dismissal in their submission to the WRC.
The adjudicator held that he had jurisdiction to hear a constructive dismissal claim and went on to do so.
However, when he did look at the substantive issue he found that the employee had come nowhere near meeting the threshold of proving constructive dismissal. The adjudicator pointed to the employee’s letter of resignation which stated,
‘I would be happy to meet with you at your convenience to discuss the transition of my duties to my successor.
I wish the company and all of its employees much success in coming years .’
The adjudicator correctly points out that there is no sense of grievance about this statement.
He also refers to “Dismissal Law in Ireland” in which Dr Mary Redmond wrote
“There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, the duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints”
The adjudicator also cited the Supreme Court pronouncements on the area of constructive dismissal.
“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.”
Per Finnegan J in Berber v Dunnes Stores  E.L.R. 61
Furthermore, there is a healthy body of decisions from the EAT that an employee must use the company procedures to address any grievance.
The employee in this case “does not come remotely close to satisfying any of these tests”, according to the Adjudication Officer.
For these reasons the claim of constructive dismissal failed and was held to be not well founded.