Constructive Dismissal Claim and Impulsive Actions

In the recent case of June McGarr v Margaret & Michael Moriarty t/a Moriarty’s Centra UD 1363/2011, MN 1463/2011, WT 1547/2011. the Employment Appeals Tribunal was asked to consider whether an employee who had resigned from her employment had been unfairly dismissed.BackgroundThe claimant commenced employment with the respondent in March 2007 initially as a sales assistant having previously gained experience in HR in a previous role. Within five months, the claimant accepted an offer from the respondent to join the management team in running the shop. The claimant contended that relations with the respondent changed when she observed and commented on what she regarded as unprofessional practices in the shop. The claimant felt that the respondent wanted to get rid of her. In March 2009 her employment status changed from full-time to part-time. The claimant eventually received a contract of employment and a copy of grievance/disciplinary procedures. The claimant stated that she did not put her grievances in writing and in any event she had no one to air her grievances to. The claimant also contended that she was not given proper statutory breaks, access to toilet was restricted, she was forced to stand for long periods and the heating was not tuned on in winter 2010/11. The claimant had previously been issued with a verbal warning which was removed from her file and received a second verbal warning in January 2011. The claimant felt the treatment was never going to stop and was certified sick for a number of weeks.The claimant told the Tribunal her involuntary decision in handing in her notice was impulsive but felt she should have taken the option to resign two years earlier. The claimant’s consultant psychiatrist accepted in evidence that there was always another side to the story and could only rely on what the claimant told him but that the only option for the claimant was to remove herself from the situation.The respondent stated that the claimant never raised complaints or grievances with him. The manager of the shop also gave evidence that he received a text from the claimant indicating her intention to resign. The manager phoned the claimant and asked her to re-consider her decision and subsequently received a note from the claimant confirming her resignation effective from 18th February 2011.DeterminationThe Employment Appeals Tribunal stated that “To involuntary resign your employment is a serious decision and needs justification for a constructive dismissal claim to succeed“. The Tribunal further provided that the claimant acted impulsively and with undue haste when she left her employment with the respondent and that the decision became less impulsive when the respondent asked the claimant to reconsider her decision. The claimant however subsequently confirmed her decision to resign. It was also noted by the respondent that the claimant had experience in HR and had a copy of the grievance procedures that were not used and the Tribunal commented “that alone gives the message that she did not exhaust all reasonable efforts in submitting her complaints and grievances to the respondent“.The Tribunal finally noted that “while some of the grievances might have merit her non-use of a formal approach to those grievances damages her case. That damage together with her impulsive decision and her experience in HR all contributes to the case not succeeding“.The claimant subsequently failed in her claim for unfair dismissal.