Failure by an employee to avail of mediation in the case of An Electrical Supervisor v An Engineering Company ADJ 00012876 resulted in the loss of his claim for constructive dismissal under the Unfair Dismissal Acts 1977 (as amended).
Constructive Dismissal v Unfair Dismissal
Many employers and employees are still confused about the difference between constructive dismissal and unfair dismissal. In essence constructive dismissal is where an employee resigns or leaves their job either due to the behaviour of their employer or a breach of their contract of employment. An example would be where an employer fails to pay the employee over a period of time and the employee’s complaints fall on deaf ears. Another example could be where an employee raises complaints internally to the employer over a period of time and uses the grievance or other complaints procedure but the employer ignores them.
The employee in this case complained about his line manager’s behaviour towards him and felt that the company handled his complaints so poorly, that it justified his resignation.
The Workplace Relations Commission agreed that there were flaws in the investigation procedure including the fact that certain witnesses should have been interviewed.
The employer in this case cited the case of Barry -v- Quinn Insurance UD1775/2010 which it felt was similar to the facts in the above case. Here the Employment Appeals Tribunal had held that it was unreasonable for the claimant to resign in circumstances where she did not appeal the outcome of the company’s decision in relation to her complaint of bullying and harassment notwithstanding a finding that she had been subject to unacceptable behaviour and noting that:
“Except in very limited situations an employee must exhaust all avenues for dealing with his/her grievances before resigning. Therefore, the Claimant’s claim under the Unfair Dismissals Acts 1977 to 2007 fails.”
In respect of constructive dismissal, the Supreme Court in Berber -v- Dunnes Stores  ELR 61 noted:
“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.”
It should be remembered that unlike complaints of unfair dismissal, constructive dismissal places the onus/burden of proof on the employee to show that the resignation was justified.
The employee in this case lost his claim for constructive dismissal as a result of failing to avail of his employer’s offer or mediation or further outside help to resolve his complaints. The case law overwhelmingly confirms that save for exceptional situations, an employee must have exhausted all alternative avenues before tendering a resignation.
Employment Law Tip
Employees beware that you should try and resolve all internal complaints procedures before resigning. Employers should note that it can be a defence in a constructive dismissal case if employees do not try and resolve complaints with the company first or avail of mediation or third party help to solve complaints.