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Constructive Dismissal – the Onus on Employees

Barry Walsh



Last month, the WRC published a decision where an employee failed in a claim of constructive dismissal. The decision displays solid reasoning by the adjudication officer and offers a useful insight into the high burden of proof on employees in constructive dismissal cases.

The claimant was employed in a local convenience store since 2004. The respondent had purchased the store by share purchase in early 2015. The claimant had two issues with her employment which she argued should be considered together as justifying her resignation in November 2015. The employees did not have contracts of employment when the store was acquired by the respondent in 2015. The respondent issued template contracts to the employees in June 2015, however the claimant refused to sign as she had difficulties with a number of provisions such as the commencement date and place of work. There were ad-hoc discussions in relation to the contract in subsequent months and the parties provided conflicting evidence. It appears that the claimant was asked to provide proof of her commencement date, however this was not provided. The claimant submitted that she was subjected to differential treatment from the respondent due to her refusal to sign the contract of employment.

On 5 November 2015, the claimant was called into the respondent’s office to discuss the condition of the deli during her last shift. The claimant gave evidence that the respondent roared and shouted at her which caused the claimant to resign, whereas the respondent’s evidence was that the claimant shouted at him and walked out. The respondent subsequently phoned the claimant, who confirmed her resignation and requested her P45.

The adjudication officer referred to the burden of proof in a claim of constructive dismissal and noted that she was required to assess “whether there has been a significant breach of the terms of the complainants position going to the root of the contract. If I am not satisfied that there has been a significant breach, I am then required to examine the conduct of both the complainant and respondent, together with all the circumstances surrounding the termination, to establish whether or not the decision of the complainant to terminate the contract was a reasonable one.” The adjudication officer found that the issues in relation to the contract of employment did not constitute a significant breach. Generally, employees are expected to exhaust all internal procedures before a claim of constructive dismissal can succeed. However, the adjudication officer noted that a failure to do so would not be fatal where the circumstances are sufficiently serious. In this case, the adjudication officer concluded that where the parties had worked together for a period of months without incident, one heated argument did not justify the claimant’s decision to resign and claim constructive dismissal. The claimant should have considered other options, including utilising the grievance procedure and therefore the claim failed.

While all such cases are always fact specific, the case is a good general reminder of the proof required by resigning employees in constructive dismissal claims.

A full copy of the decision is available here.