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Constructive Dismissal and the onerous burden of proof

The recent case of Daniel O’Gorman v Glen Tyre Company Limited UD 2314/10 sent by the Employment Appeals Tribunal on 18th January 2013 demonstrates the high burden of proof a resigning employee must demonstrate in order to prove that they have been constructively dismissed. Interestingly in this case the Tribunal noted that the Claimant’s parents had a duty to inform the Respondent that the Claimant was suffering was work related stress. On the same date the Tribunal also issued the decision of Sibyl McNally v Homebase Limited which again also highlights the failure of the claimant to discharge the significant onus of proof required to claim constructive dismissal.BackgroundIn the O’Gorman and Glen Tyre Company case,  the Claimant who was suffering from Asperger Syndrome was employed as a mechanic by the respondent company from October 2006. On 11 May 2010 he went on sick leave and did not return to work. He resigned by letter dated 8 September 2010. The Claimant alleged that he had been subjected to an excessive workload, exclusion and bullying and harassment/aggressive attitude.The Claimant’s father gave evidence that he spoke at length to his employer about the challenges of Asperger Syndrome prior to the Claimant commencing employment.The Claimant suffered a personal injury at work when a tyre fell on his head in March 2009 but subsequently attended at work the following day despite having a medical certificate certifying him as unfit. A second subsequent incident arose whereby a tyre exploded in the vicinity of the Claimant which caused him distress. The Claimant did not pursue a personal injury claim or lodge a grievance. The Claimant also gave evidence that inappropriate language was used towards him several times which the Respondent conceded but stated that no exceptions were made for the Claimant and that he had to demonstrate who was “boss”. The Claimant also gave evidence that he felt excluded when other employees did not invite him to lunch. The Tribunal noted that given the Claimant’s condition, the Respondent’s lunch hour could pass and the Claimant could be unaware of same.The Respondent gave evidence of organising a night out at an Italian restaurant at christmas as the Claimant has stated that he did not wish to attend a night at the dog races.The Claimant also gave evidence that the Respondent continually increased his work load to the point where it was not possible for him to complete same however the Respondent gave evidence that at times the Claimant got so lost in his work and in trying to find a solution that it became frustrating and that at times his choice of language was colourful. The Respondent stated that when the Claimant resigned he was not aware that he was suffering from work related stress and that he had tried to contact the Claimant several times.DeterminationThe Tribunal again repeated the well known test of constructive dismissal as set out in Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“the termination by the employee of his contract of employment with the employer   whether prior notice of the termination was or was not given to the employer in the 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”.

The Tribunal noted that the burden of proof, which was a very high one, lies with the claimant and that he must show his resignation was not voluntary and that the legal test to be applied was “an and or test”.

  1. The Tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.
  2. If the Tribunal is not satisfied that there has been a significant breach of the contract it can examine the conduct of both the employee and employer together with all the circumstances surrounding the termination to establish whether or not the decision of the employee to termination the contract was a reasonable one.

The Tribunal noted that it was crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and that the employer be given an opportunity to resolve the issues. The Tribunal noted that “this was an unusual case and that the claimants parents had a duty to inform the employer why the claimant was suffering from stress and should have informed him that the claimant felt he was being subject to behaviour that amounted to bullying harassment and exclusion”.

The Tribunal noted that as the employee had failed to do so, it left the employer powerless to rectify the situation. The Tribunal further noted that “the burden for the claimant is an extremely high one and the law makes no allowances, rightly or wrongly, for claimants who suffer from A.S”

The Tribunal noted that the claimant must show that there has been a significant breach going to the root of the contract and that the breach would prevent the claimant from carrying out his contractual duties. The Tribunal noted that they could find no evidence of a breach of the claimants contract. The Tribunal then examined the conduct of both the employee and employer together with all the circumstances surrounding the termination and noted that the Claimant’s decision to termination the contract was a reasonable one.

Whilst noting that the tribunal had an enormous amount of respect and admiration for the Claimant and what he had achieved, it noted that it was bound by the law and the claim under the Unfair Dismissal Act 1977 as amended failed.

Both cases clearly demonstrate the need for employees to consider their actions before taking any hasty decision to resign and the importance of taking proper advice beforehand.

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