17 May Constructive Dismissal
Some useful lessons from this recent case in which a Solicitor was awarded €13,300 after her grievances were not dealt with properly by her new employer and she successfully claimed constructive dismissal.
The Complainant had been employed as a Solicitor for 10 years before the Practice was sold on 29th November 2018. The new owner placed her on a probation period in her new contract of employment and did not take into account her previous service, as well as only giving her 12 days holiday entitlement. The Complainant said she was told that her Practising Certificate would not be renewed unless she signed the contract and brought in substantial fees. The Complainant said she was also not mentioned on the new Company website and the new owner denied to a client on a phone call that she worked in the Practice. The Complaint said she was often not acknowledged by the new owner, and was criticised unfairly for arriving at work 2 minutes late.
The Complainant raised a formal written grievance on 28th February 2019, but a meeting held failed to address her grievances and instead she was offered a severance package, but only if she would accept that it was paid over 12 months. After a number of failed attempts to have her grievance heard, the Complainant felt that she had no option but to resign her position on 26th March 2019, due to the unreasonable behaviour of the new owner.
The Respondent disputed the case as put forward and said he had found significant GDPR breaches on the part of the Complainant when he took over the business. He also said that the contract offered was merely updating her old one but accepted that it was incorrect to do so in the manner he had, as well as acknowledging that her holiday entitlement was wrong. The Respondent said no other employee details had been put on the Company website, and that not saying hello to someone and dealing with poor timekeeping did not constitute bullying.
The Respondent further stated that the Complainant had not sought to mitigate her losses as she was required to do, and should have had no difficulty in obtaining a new position in a Practice in Dublin, but instead had been trying to get elected as a local councillor.
The Adjudicator outlined that to satisfy the constructive dismissal test, it was necessary firstly to establish that the employee was entitled to terminate the contract of employment without notice, due to a fundamental breach of the contract. The Adjudicator found this was the case in the circumstances that arose, and that the Respondent had sought to impose changes unilaterally to the Complainant’s contract of employment, which was a breach of the terms that were in place at the time of the Transfer of Undertakings.
The Adjudicator further found that the Respondent did not behave reasonably in addressing the Complainant’s grievances, and had failed to follow the Company grievance procedure in place, and instead had attempted to highlight performance issues.
The Adjudicator determined that the Complainant was unfairly dismissed and awarded her €9,100 for loss of her redundancy rights and €4,200 for loss of earnings, up until she took up a new position on 3rd June 2019. The Adjudicator did not accept that the Complainant did not attempt to mitigate her losses, and said it was not reasonable that she would have relocated her family to Dublin, where there may have been more positions available, and that individual circumstances needed to be considered in this regard.
This case clearly demonstrates the potential cost of changing an employee’s contract of employment without their consent and the fundamental need to recognise previous service in a Transfer of Undertaking situation, as well as the need to ensure that employee grievances are afforded a fair hearing in line with the Company Grievance Procedure ( or Statutory Code of Practice)