Thinking about resigning from your job and bringing a claim for constructive dismissal? Before you do you would be well advised to take 10 minutes or thereabouts to read the WRC decision in the case of Brian Griffin v Sage (ADJ-00034467).
Mr Griffin resigned from his position of 2.5 years with Sage but he made one fatal mistake.
Before we look at his mistake Mr Griffin’s case was that his reputation and good name was tarnished by an accusation against him from a colleague. The colleague had made the complaint about bullying in an exit interview from the company.
The employer, Sage, said there was nothing that they could do about the complaint or any reputational damage to Mr Griffin as the accuser had left the company. Mr Griffin felt that the attitude of the company towards him had changed and he felt aggrieved and that the employer had not dealt with the matter properly or at all.
He felt stressed as a consequence, and that his reputation had been tarnished and believed he had no option but to resign his position immediately with the company to protect his reputation and health.
He sought loss of earnings and compensation and the payment of his legal fees.
What the law says
The adjudicator in this decision dealt comprehensively with the law in cases of constructive dismissal. He referred to the high burden placed on the employee to prove he was entitled to terminate the employment, or it was reasonable for him to do so.
He referred to Berber V Dunnes Stores,
“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 as such that the employee cannot be expected to put up with it”.
Murray v Rockavill Shellfish Ltd,
“It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.
Beatty v Bayside Supermarkets (UD142/1987)
“The Tribunal considers that it is reasonable to expect that procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster bank Ltd 474/1981. In this case the Tribunal considers that procedure was not followed by the Claimant and that it was unreasonable for him not to do so. Accordingly, we consider that applying the test of reasonableness to the Claimant’s resignation he was not constructively dismissed”.
He referred to the long line of decisions from the WRC, Labour Court, Employment Appeals Tribunal and the need for the employee to show they have acted reasonably in the circumstances in tendering their resignation. For example, by using the employer’s grievance procedure.
He referred to Ranchin v Allianz Worldwide S.A., Travers v MBNA Ireland Limited, and other cases which held that the employee must demonstrate they have pursued their grievance though the procedures laid down in the contract of employment.
The two tests for constructive dismissal-the contract test and reasonableness test-were also explored in the decision.
The Western Excavating ECC Limited v Sharp case was cited in looking at the legal test to be applied which is “an and/or test”:
If the WRC is not satisfied that the “contract” test has been proven, then it is obliged to consider the “reasonableness” test “the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”.
The WRC held that the claim must fail as Mr Griffin failed to communicate his grievance before resigning and refused to go through a formal process to reach a resolution of the problem.
I agree with Respondent that it was the Complainant’s unwillingness to go through a formal process that ended his employment with the Respondent, and it is for this reason that I must now find that the complaint as presented is not well-founded and therefore fails.
This case of Brian Griffin v Sage ( ADJ-00034467) is a good one to read through carefully if you are unclear about constructive dismissal and want to know what tests will need to be fulfilled before winning such a claim.
Whatever you do, avail of any procedures in the workplace first. No procedures? Write a letter/email of complaint setting out your problem/issue that may force you to quit.