UDD1922

This is an appeal by Mr Jim Connolly (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00012879, dated 5 September 2018) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that the Complainant’s claim of constructive unfair dismissal was not well-founded. The Complainant’s Notice of Appeal was received by the Court on 16 October 2018. The Court heard the appeal in Dublin on 3 April 2019.

The Complainant was employed by the Local Government Management Agency (‘the Respondent’) as a network engineer from 31 March 1998 until his resignation on 2 January 2018. In the period immediately prior to his resignation the Complainant had been the subject of a disciplinary investigation and hearing which had culminated in a recommendation to the Respondent’s Chief Executive that the Complainant be dismissed for gross misconduct. The Complainant was entitled to appeal against that recommendation. He was advised of his right to do so and the period within which he could have initiated his appeal was extended, at his express request, beyond the normal ten-day period provided for in the Respondent’s disciplinary policy. However, the Complainant chose not to appeal and resigned his employment instead.

In response to questions from the Court, the Complainant – who was unrepresented at the hearing – stated and repeated that he had chosen to resign his employment on 2 January 2018 because he felt that his health would have been put at risk at that time had he pursued the appeal. He explained to the Court that he had previously suffered from chronic insomnia and that he was fearful of relapsing if he remained in his job in the circumstances. He, therefore, chose to prioritise his health and forego the opportunity to appeal the aforementioned recommendation.

The Law

Section 1 of the Act defines ‘dismissal’ for the purposes of the Act as follows:

• “(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

  (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in 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, or

  (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

Application of the Law to the Facts

Only paragraph (b) of the definition of dismissal quoted above is relevant to the within appeal as the Complainant’s claim is one of constructive dismissal. In order to succeed in a claim of constructive dismissal under the Act, a complainant must demonstrate that his/her decision to resign their employment resulted from either a repudiatory breach of the contract of employment by the employer or such unreasonable behaviour by the employer that the employee could not fairly be expected to put up with it any longer.

By his own evidence to the Court, the Complainant in this appeal has made it clear that neither limb of paragraph (b) of the definition of dismissal applies in his case. He has not pointed to a breach of contract or unreasonable behaviour on the Respondent’s part as the causative factor in his decision to resign his employment. His decision was motivated entirely by his desire to protect and prioritise his health. In the circumstances, therefore, the appeal is misconceived and must fail.

The Adjudication Officer’s decision is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
7 MAY 2019______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.