Constructive Dismissal Claims and Raising a Grievances
The relationship between an employee and employer doesn’t always run smoothly. If an employee feels their working environment is detrimental to their well-being, and that the company is making it difficult for them to continue in their current role, they may feel they have no alternative but to resign.
In this case the employee will feel let down by their employer – especially if they made it clear that they were unhappy with the situation, but no attempt was made by the employer to put things right. If an employee resigns in this manner, they may seek to pursue a claim for Constructive Dismissal.
What is Constructive Dismissal?
Section 1 of the Unfair Dismissals Act, 1977, outlines Constructive Dismissal as:
“The termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”
To clarify, constructive dismissal relates to a case made by an employee who chooses to resign, but afterwards claims they had no choice – due to their employer being in breach of contract. This implies that the resignation was not a voluntary one after all, but instead a termination of their employment. Let’s check out a recent case study that illustrates constructive dismissal:
Case Study: Catherine Flynn v Tusla Child and Family Agency
The Labour Court (by way of Appeal from a decision of the Adjudication Officer) presided over the case of Catherine Flynn v Tusla Child and Family Agency [Determination No: UDD 1810] issued on the 9th February 2018.
Ms Flynn submitted a claim of constructive dismissal against her employer – Tusla, stating that her detrimental work environment had provided her with no option but to resign.
Ms Flynn did not register a formal grievance with Tusla prior to handing in her resignation, thus giving her employer no opportunity to listen or respond to the issues at hand.
When Ms Flynn began working for Tusla she was given a copy of company terms and conditions – which included information relating to the grievance procedure. This outlined: “You have the right to seek redress in respect of any aspect of your terms and conditions employment under the Health Service Executive Dublin North East Grievance procedure. Should you have a Grievance you should follow the Grievance procedure which will be issued to you on commencement of your employment.”
At the hearing, a representative acknowledged that Ms Flynn had not initiated the grievance procedure prior to handing in her resignation. Ms Flynn did send an email to Tusla (on the date of her resignation), outlining her reasons for the resignation. The email mentioned Ms Flynn’s aversion to a recent transfer, which resulted in a change to the working environment, resulting in the termination of certain benefits and expenses.
Ms Flynn felt that Tusla did not sufficiently explore the reasons behind her resignation, neither did they attempt to offer any resolution. It became apparent that Ms Flynn was looking for one of two outcomes – reinstatement or compensation.
Normal Dismissal Versus Constructive Dismissal
The Deputy Chairman pointed out that when it comes to Constructive Dismissal it is the job of the employee to prove their employer gave them no alternative but to resign. In a normal Dismissal Claim (the employer dismissed an employee), then the employer must prove that the dismissal was fair).
The Law Relating to Constructive Dismissal
There are two incidents whereby a resignation might be thought of as constructive dismissal:
Contract Test – Repudiatory Breach
The employer commits a serious breach of the employment contract – permitting the employee to resign.
The employer acts in a manner considered to be so unreasonable that the employee cannot tolerate remaining in employment any longer. If it’s deemed that the employer has been unreasonable, then the employee could resign. This test is sometimes used as an alternative to the contract test, or in conjunction with it.
In constructive dismissal cases, if the employee indicates the employer acted in an unreasonable manner the court needs to look into the behaviour of both parties (the employer and employee).
If an employee sites the employer has been unreasonable, they must allow the employer the opportunity to respond to the grievance. The employee must also show that they have lodged their grievance with the company (in line with policy), prior to resigning.
Ms Flynn informed the court that she did not raise a grievance whilst employed at Tusla prior to handing in her resignation. She also confirmed that she understood the company grievance procedure and had been provided with a copy of the staff handbook. Ms Flynn explained that the emailed resignation letter outlined her grievance.
The court needed to decide whether Ms Flynn’s claim for constructive dismissal should be upheld. Were Tusla unreasonable in the treatment of their employee Ms Flynn, and did this lead to Ms Flynn handing in her resignation?
The court pointed out that the employee needs to justify the chain of events leading up to a resignation, and that the employer needs to be made aware of any grievance prior to the employee handing it that resignation.
The court reiterated that, whist it isn’t deemed a 100% necessity for all employees to present their employer with a written grievance before resigning, it is more difficult for an employee to resign without doing so.
The employer should be given time to address any issues, and take the opportunity to rectify them. They did concede, if the employer has been exceedingly unreasonable, then there might be grounds for the employee to resign without first raising a grievance.
In this case Ms Flynn had not informed Tusla of her grievances prior to resigning, which resulted in the court determining that Ms Flynn had not been constructively dismissed.
Considering a Constructive Dismissal Claim?
Employees should think carefully if they are planning a constructive dismissal claim. If you resign prior to raising a grievance you are not giving your employer the opportunity to respond, and this could affect the outcome of your claim.