Constructive Dismissal – Recent Caselaw from the Employment Appeals Tribunal

The recently published Employment Appeals Tribunal decisions for October again contain a number of cases in respect of constructive dismissal and the tests to be applied.In Brian Butler v Ryanair Limited UD1222/2011 the Tribunal was asked to consider whether the claimant had satisfied the test for constructive dismissal in circumstances where he claimed he had been bullied at work. Here the claimant commenced employment as a member of cabin crew for the respondent in 2007 and became a full member of staff in 2008. The claimant gave evidence that he did not experience any issues from 2007 to 2009 apart from sick leave which became an issue in March 2009 when he received a probationary letter. A further incident arose in February 2010 when the claimant could not produce his passport when requested by a cabin supervisor and was not allowed to fly until he could provide it. The claimant gave evidence that he began to experience difficulties with his supervisor and brought this to the attention of another senior staff member. The claimant did not obtain any resolution and subsequently left the company. He subsequently drove to Shannon to fill out a resignation form as he felt bullied at work and did not wish to leave his job. He subsequently resigned on 27th August 2010. The respondent submitted that the claimant had not met the required standard to succeed in a claim for constructive dismissal as he had not satisfied the definition of dismissal as set out in Section 2 of the Unfair Dismissal Act 1977 (as amended).The Tribunal accepted that the claimant knew of the grievance procedure of the respondent and he gave no notice of his intention to resign if the matter was not dealt with more expeditiously. It noted that the respondent had sought a month to resolve matters and the claimant had been invited to a meeting with the respondent which he refused to attend.”The Tribunal accepts the submission of the respondent that the test in relation to constructive dismissal is that the actions of the employer must be such that they constitute a fundamental breach of the employment relationship, that is, a significant breach going to the root of the contract such that it allows the employee to treat themselves as discharged from further performance of the contract as outlined at paragraph 19.06 of Redmond, Dismissal law in Ireland (2nd ed.)“The Tribunal rejected the claimant’s argument that the case of Memorex World Trade Corporation v Employment Appeals Tribunal [1990] 2 I.R. 184 must lead it to dismiss the application of the respondent. It noted the case concerned a dismissal simpliciter rather than a constructive dismissal and a Judicial Review application and was also heard without the evidence of the employee. The Tribunal concluded that the actions of the respondent could not be viewed as constituting a fundamental breach of the contract and constituting a dismissal within the meaning of the Act. It observed “Even if the matters of which the complainant complained were proved to be true, it is by no means clear that they constituted a fundamental breach going to the root of the contract between the claimant and the respondent“.The Tribunal concluded that the claimant had not invoked the grievance procedure and the informal issues he had raised were being dealt with by the respondent. It also observed that “If was not very satisfactory he should at the very least have escalated the matter and allowed the company a reasonable time to respond before resigning“.The case of Alan Downey v Martin Roe t/a Bartenders UD 910/2012 concerned a successful claim for constructive dismissal whereby the respondent had failed to regularise the claimant’s working conditions. Here the claimant commenced employment in September 2010 until March 2012. His role involved cleaning, bar work and hospitality work. The claimant stated in evidence that on days when he reported for work, if it was raining he was not paid for some of the hours he spent there. The claimant asked for the weekend of 20th March 2012 off work and the claimant provided that the respondent contacted him on the Sunday night to tell him not to report for work as he could not afford to pay him his holiday pay. The claimant felt this was unfair and informed the respondent that if he was letting him go he needed his P45. The claimant subsequently received this in October 2012. The respondent have evidence that he had informed the claimant that he would see him for work the following week but that the claimant came in and collected his belongings.The Tribunal noted that the claimant had claimed constructive dismissal in circumstances where the employer consistently failed to regularise his situation. The claimant had no contract of employment and no certainty as to how he was expected to work. The Tribunal also noted that the respondent had no system which allowed employees to clock in the hours worked and concluded:”On balance having considered the nature of the relationship the Tribunal is satisfied that the claimant could not reasonably be expected to continue in the workplace without some formal regulation which was never forthcoming“.In David Mullan v Healex Systems Ireland Limited UD1146/2011, WT 467/2011 the Tribunal looked at the contract of employment and “reasonable test” in determining whether the claimant could succeed in a claim for constructive dismissal. The Tribunal noted:”The absence of a written contract of employment and grievance procedure does not entitle an employee to terminate their employment. That doesn’t mean in itself that there was a breach of contract“. It further observed “Although the absence of a written contract or grievance procedure may not constitute a breach” the majority of the Tribunal were of the opinion in this case that the absence of a contract and grievance procedure was fundamental as the employee was based in the US. The claimant was awarded €9,000 as compensation under the Unfair Dismissal Act 1977 (as amended).