Review of Constructive Dismissal Determinations by EAT

Two recent EAT cases show that in order to ground constructive dismissal the conduct of the employer must not be petty or minor but must go to the root of the relationship between the employer and employee. The cases of Joyce v. Brothers of Charity (UD407/2008) and O’Sullivan v. O’Sullivan (UD941/2007) are reviewed below.


Joyce v. Brothers of Charity (UD407/2008)

Facts
The claimant (the employee) was employed by the respondent organisation (the employer) as a care assistant in a residential facility. An allegation of sexual misconduct with one of the residents was made against the employee in October 2006 by a fellow employee. The employer suspended the employee on full pay pending the outcome of an investigation into the allegation. The investigation concluded after 7 weeks. The employee was completely exonerated from the allegations and he was invited to return to work. However, the employee was not completely satisfied with the wording of the investigation report. The employee felt he could not return to work without some assurance from the employer that a similar incident would not occur in the future. Furthermore the employee alleged that the manner in which the investigation was carried out did not comply strictly with the employer’s disciplinary policy. Evidence was given that the incident caused the employee severe stress and anxiety. The employee resigned and claimed constructive dismissal.

Determination
This case was heard in Cork before Chairman Mr E. Murray over three days on 6 November 2008, 2 February and 3 February 2009. The Employment Appeals Tribunal (the EAT) noted that constructive dismissal is defined in s. 1(b) of the Unfair Dismissals Act 1977 as follows: “The termination by the employee of his contract of employment…., in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of termination to the employer.” The EAT concluded on the facts that the conduct of the employer was reasonable in all the circumstances and that there were no reasonable grounds for the employee to terminate his contract of employment. Consequently the employee’s claim for unfair dismissal failed.


O’Sullivan v. O’Sullivan (UD941/2007)

Facts
The claimant (the employee) had worked with the respondent (the employer) since September 2003. The employer was in the PVC business and the employee worked with him on various building sites. The employee left his employment in May 2007 due to concerns for his safety. The employee gave evidence that he was required to lift heavy weights and to work on his own at heights when there should have been another person working with him. The employee stated that he had not received any Health & Safety training nor was he provided with any safety equipment or clothing. The employee suffered a back injury in October 2006. The employee stated that the employer did not take any action despite numerous complaints by the employee regarding his safety at work. The employer gave evidence to the contrary claiming that the allegations by the employee were grossly exaggerated.

Determination
This matter was heard before Chairwoman Ms S. Behan on 9 June 2008 in Cork. The EAT held that the reason the employee left his employment in May 2007 was because of his concerns that he was working in an unsafe environment, and in circumstances where his complaints to the employer in this regard were unheeded. Therefore, the EAT was satisfied that the employee was constructively dismissed. The EAT made an award in the sum of €1,762.20, being four weeks wages, pursuant to the Unfair Dismissals Act 1977 to 2001. In the circumstances the employee’s award was mitigated as the employee was receiving disability benefit.


Legal Commentary on Constructive Dismissal

The above cases show that in order to ground constructive dismissal the conduct of the employer must not be petty or minor but must go to the root of the relationship between the employer and employee. In these circumstances the onus will be on the employee to prove that their resignation could reasonably be viewed as dismissal. The EAT will have regard to the employee’s conduct prior to resignation and in considering whether it was reasonable will look at whether: - the employee brought their concerns to the employer’s attention and whether they utilised and exhausted internal grievance procedures; - the employer was given an adequate opportunity by the employee to deal with their concerns; - there was a connection between the conduct complained of and the employee’s resignation. In assessing an employer’s conduct in this respect the EAT have considered the following: - an employer’s words, actions and responses; - the work environment created by the employer; - failure by an employer to comply with a fundamental term of the contract of employment; - failure by an employer to adequately respond to concerns or grievances raised by an employee; - failure to exhaust their own procedures for dealing with an employee’s concerns or grievances; - failure to encourage an employee to have recourse to such procedures; - whether there was a genuine attempt made by the employer to deal with the concerns of the employee – it will not be sufficient to hide behind an established procedure. 

In Joyce it would appear that the EAT accepted that the employer had no option but to suspend the employee pending the outcome of the investigation given the nature of the allegation. The length of the investigation and the employer’s conduct was not deemed by the EAT to be unreasonable. Employers must always bear in mind that internal procedures must be conducted in a fair and efficient manner. In O’Sullivan the nature of the environment created by the employer, namely one that gave rise to concerns as to the employee’s safety, together with the failure of the employer to respond to the concerns raised on several occasions by the employee contributed to the finding of constructive dismissal. The EAT also found that the employer had adequate time to respond to these concerns. On this basis the EAT determined that there was a clear link between the conduct complained of and the employee’s decision to resign. This case gives a clear example of the type of conduct by an employer that may lead to a successful claim for constructive dismissal. These two cases clearly demonstrate what the EAT will consider in any constructive dismissal claim. In the first instance the employee will have to convince an EAT that their resignation wasn’t voluntary. From an employer’s point of view the employer’s conduct in any investigation and follow up on complaints will be crucial in determining whether the employer acted reasonably towards the employee.