Constructive Dismissal Claims- Must an Employee Exhaust Internal Procedures?
It has generally been the case that, by reason of the fact that when an employee brings a constructive dismissal case, that he/she must exhaust all internal procedures. This is inline with the fact that the onus is on the employee to prove that there was a dismissal in the first place, unlike an unfair dismissal case, where the onus is on the employer to prove that the dismissal was fair.
However, a number of recent cases which have issued from the Workplace Relations Commission indicate that where an employer has behaved so unreasonably, and so dismissively, towards an employee’s concerns that an employee is entitled to regard this behaviour as so fundamentally puncturing the trust and confidence with the employer, that it entitles the employee to resign and claim constructive dismissal.
In one recent case of Rehab Groups v Roberts, the Labour Court found that an employee was entitled to claim constructive dismissal in circumstances where an employer, having made promises to the employee, that her complaint would be investigated quickly, was then faced with complete inaction on the part of the employer and the Labour Court found that in those circumstances the employee was entitled to resign and claim constructive dismissal.
In another case of Cassidy v Bank of Ireland, the employee had alerted various members of management to her concerns by sending various emails. These emails were ignored. The employee concluded that the employer was not committed to resolving her complaints and resigned and the WRC found that the employee could not in those circumstances be faulted for not going through the employer’s internal procedures before resigning.
In summary, employees should be aware that other than in circumstances where an employer blatantly ignores its own procedures, an employee is safer to go through the internal procedures, but clearly if the employer shows no inclination or interest in resolving the issues then the employee has to consider whether the trust and confidence has broken down to such an extent that he or she has no option but to resign.
For further advice on any employment matter, please don’t hesitate to contact Brendan Dillon on 012960666.
