19 Jul Constructive Dismissal

The threshold for a successful constructive dismissal claim has always been higher than a standard unfair dismissal claim, with a number of important criteria to be met, including that internal grievance procedures should be exhausted prior to resigning, and that the employer’s behaviour must have amounted to a breach of contract and been so unreasonable that the employee could not be expected to put up with it any longer. These standards were reinforced in two recent decisions published.

In Branagh Whelan and Glana Controlled Hygiene Ltd (ADJ-00028850), whilst the Adjudicator found that the Managing Director had behaved unreasonably and that inappropriate behaviours had occurred including slapping the Complainant on her bottom, and carrying her in the air around the warehouse, the Complainant did not behave reasonably by just resigning without notice and should have invoked the Company’s Grievance Procedure.

Similarly in Melissa Moran v CH Kane Ltd Supervalu (ADJ-00031662), the Complainant who was a Trainee Assistant Manager with 5 years’ service, had requested split shifts on the days she was rostered to do lock ups, as she was responsible for her father’s medication, but decided to resign and claim constructive dismissal when it was not facilitated. There was also a history of disagreement about payment for public holidays and annual leave.

The Adjudicator found that the Complainant had no such contractual right to a split working arrangement and most importantly she did not use the grievance procedure, which she was aware of, to try and resolve her issues, which the Respondent had indicated they were open to doing.

Separately of note in this case was an additional claim under the Organisation of Working Time Act, 1997, which resulted in €3,000 compensation being awarded, as the Employer permitted the Complainant to work 50 hours per week, in excess of the maximum weekly average of 48 hours per week. Whilst the employer contended that the Complainant was herself responsible for working additional hours, the Adjudicator was firmly of the view that it was the responsibility of the Respondent to monitor employees’ attendance patterns and prevent excessive hours being worked.