UD1604/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                 CASE NO.

Brian Lacey (claimant)                                            

                                                                                                                        UD1604/2012

Against

The Discovery Programme Limited T/A The Discovery

Programme                             (respondent)

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms N. O'Carroll-Kelly BL

Members:     Mr F. Cunneen

                   Mr A. Butler

heard this claim at Dublin on 21st October 2014 and 16th December 2014

Representation:

_______________

Claimant(s) :              In person

Respondent(s) :          Ms. Claire Hellen, Ibec, Confederation House, 84/86 Lower

                                  Baggot Street, Dublin 2

The determination of the Tribunal was as follows:

The Claimant is alleging he was constructively dismissed from his employment with the respondent. Section 1 of the Unfair Dismissals Act defines constructive dismissal as:

“the termination by the employee of his contract of employment with this 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 burden of proof, which is a very high one, lies on the claimant. He must show that his resignation/termination was not voluntary. The legal test to be applied is “an and or test”. Firstly, 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. 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 the employer together with all the circumstances surrounding the termination to establish whether or not the decision of the employee to terminate the contract was a reasonable one.

The Tribunal can find no evidence of a breach of contract. The claimant, based on his financial knowledge of the respondent, raised concerns that the respondent could no longer maintain his salary. He requested voluntary redundancy in an attempt to ease the respondent financial difficulties. The respondent stated that having reviewed the situation and taken advice they could not make the CEO position redundant. They informed the claimant that the CEO position could not and would not be made redundant. A long and protracted series of correspondence followed that decision. The claimant was of the view that the respondent misrepresented his position and stated that that caused him great distress. Be that as it may, the Tribunal find that the matters outlined in the correspondence, whether it amounted to a misrepresentation of the claimant’s position or not is not a breach of the claimant’s contract.

Furthermore, the Tribunal find that it was not reasonable for the claimant to terminate his employment. He was the author of his own demise and it was within his control to resolve the misunderstanding and remain on in his employment. His reaction to the misunderstanding, as he believed it to be, was not a reasonable one.

The claimant’s claim pursuant to the Unfair Dismissals Act fails.

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)