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Constructive Dismissal and Breach of Working Hours

In the case of Louise Dunne v Apcoa Parking Ireland Limited ADJ-00031283 the claimant alleged that she worked three 12-hour overnight shifts, starting at 7pm and finishing at 7am. The role entailed unclamping vehicles on a hospital site. She outlined that she could not take breaks and that she was constructively dismissed.

Her employer denied that she had not received rest breaks and that she had not exhausted the internal grievance procedure. Her employer also declined to give evidence in respect of the claims.The complainant employee also alleged that a colleague had sent various emails and used abused abusive language towards her as well as issues pertaining to sick leave.


Rest Breaks

The Workplace Relations Commission (WRC) highlighted the Organisation of Working Time Act regarding rest breaks at night (sections 12 and 16). The complainant worked a 12-hour shift, from 7pm to 7am. It noted that there was no evidence that the complainant was a special category night worker as outlined under the Act and even if she was, it noted that insufficient compensatory measures were put in place to provide appropriate protection to the complainant. The WRC found a breach of the Act and awarded the complainant €2,500.

Constructive Dismissal

The WRC looked at the issue of constructive dismissal and the definition of dismissal under the Unfair Dismissal Acts namely ‘the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question. The Court then looked at the Supreme Court decision in Berber v Dunnes Stores and looked at the issue of constructive wrongful dismissal and whether the employer’s actions in that case breached the term of trust and confidence. It noted:

1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.

In Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in the light of the employee’s precarious physical and psychological health.

The WRC found that the complainant employee established that the company repudiated the contract of employment in failing to comply with either its grievance procedure or the bullying/harassment procedure and that it breached the mutual term of trust and confidence. It awarded the employee 11,400.

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