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Constructive Dismissal – Is it fatal for an employee to give notice and/or fail to engage with their employer?

The case of Mara Rybak v Matthew Hannigan T/a Hannigan Facility Services Building PW 243/2012, TE 126/2012, TU 28/2012 was delivered by the Employment Appeals Tribunal in November 2013 and published in February 2014.The cases came before the Tribunal with the employee appealing the two decisions and one recommendation of a Rights Commissioner R-119476-PW-12/JT, R-119167-TE-12/JT and R-119480-TU-12-JT under the Payment of Wages Act 1991, the Terms of Employment Act 1994 (as amended) and the European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003. The employer also appealed a later recommendation of a Rights Commissioner R-122612-UD-12/JT under the Unfair Dismissal Acts 1977 to 2007.Claim for Constructive DismissalThe claimant in this case worked as a cleaner at a medical campus in Naas from July 2009 and following a transfer of undertaking which occurred on 1 December 2011 the cleaning function transferred to the respondent as transferee. On 1st November 2011 the respondent’s operations manager wrote to the claimant to advise her about the transfer and advised her that her terms and conditions of employment would remain the same. The claimant was furnished with a new contract of employment which she refused to sign. The claimant’s position was that the conduct of the employer was so unreasonable as to amount to bullying and harassment justifying her decision to resign from employment The claimant stated that on 11th January 2012 the claimant received a call from her employer stating that if she did not sign the contract there would be no job for her. The respondent’s position was that he endeavoured to speak to the employee about these matters but it was impossible to get the employee to engage on these matters. The respondent provided that it was not possible to engage with the employee in any meaningful way to discuss her complaints. On 6th April 2013 the employee wrote to the respondent stating that she was giving four weeks notice of her intention to resign citing that she could no longer put up with the endless bullying and harassment and attempts to worsen her terms and conditions of employment.DeterminationThe Employment Appeals Tribunal in this case accepted the evidence of the respondent that the claimant was unapproachable. The Tribunal noted “For any dispute to be resolved there needs to be dialogue and the Tribunal is satisfied that the employee was not prepared to engage in any meaningful way with the employer“. The Tribunal did however acknowledge that when the respondent found that his attempt at a formal approach was not working, he should have sought to invoke more formal means to resolve the complaint.The Tribunal observed again that in order for a claim of constructive dismissal to succeed there needs to be either a fundamental breach of a term of the contract going to the root of the contract or conduct on the part of the employer so unreasonable as to justify the claim of constructive dismissal. It noted “This requirement does not sit well with the employee in this case who felt able to give four week’s notice of her intention to resign“.The Tribunal concluded that the claimant had failed to discharge the onus of proof required in order to meet a claim for constructive dismissal and the claim under the Unfair Dismissal Acts 1977 (as amended) failed.

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