Worker

Employer

Anonymised Parties

A Worker

A Takeaway

Representatives

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-0055864

03/04/2023

The Worker was employed by the Employer from 12 September 2022 until 27 March 2023. She stated that she was constructively dismissed from her employment.

The Worker stated that she had a row with her co-worker on Tuesday 21 March 2023. The Worker stated that when she subsequently met her co-worker on Friday 24 March 2023, her co-worker informed her that she would not speak to her again until such time as she got an apology from her. The Worker and her co-worker then spoke to the Employer who arranged a meeting with both workers. The Worker stated that her co-worker continued to insist at the meeting on getting an apology during the meeting. The Worker further alleged that her co-worker informed the Employer that they would have to choose between her and the Worker because she would not work with her again. After the meeting, the Employer sent both Workers home.

The Worker subsequently met the Employer on her own on Saturday 25 March 2023 and had a further discussion about the difficulties with her co-worker. The Employer subsequently texted her on Sunday 26 March 2023 and informed her that her job was still there for her and that she would see her the day after.

Prior to going into work on the following day, the Worker received an email message from the Employer outlining what behaviour was expected from her and her co-worker going forward. It was also explained to the Worker that the email constituted a written warning. The Worker subsequently telephoned the Employer and explained that her co-worker had given her (the Employer) an ultimatum.  The Worker also told the Employer that she could not work with her co-worker again. The Employer then replied that she would arrange her last week’s wages as well as her holiday pay. The Worker then dropped her keys back to the Employer.

The Employer stated that she had no difficulty with the Worker and highlighted that she was very good at her job. She stated however that she heard many grievances about the Worker from other members of staff regarding her dismissive treatment of them but it was only when two close working members of staff had serious grievances against her that she had to intervene.

Specifically, the Employer stated that she tried to mediate between the Worker and her colleague because the Worker had something hurtful to the colleague and her colleague asked for an apology. Having been told by the Worker that she would never apologise, the Employer arranged meeting between with the two colleagues. This meeting got very heated and it came to the point where the Employer had no option but to ask the two workers to go home and think about their jobs. The Employer then sent both workers a letter wherein she asked them to be respectful to each other while they worked together. She also informed them that the letter constituted a written warning.

Having received the letter, the Worker informed the Employer that she was so upset on receipt of the warning that she couldn't possibly work in the business again. The Worker then subsequently informed the Employer that she was hasty about her decision and that she would come back to work but only if she moved the colleague who complained about her to the restaurant which is in another building. The Employer stated that she would not do this because the Worker’s colleague had been in the takeaway for over a year at this stage way before the Worker had started. As a result, the Worker decided to resign from her employment.

On the basis that she had less than the 12 months service required under Section 2 (1) (a) of the Unfair Dismissals Act in order to avail of the protections provided by that Act, the Worker referred this dispute to the Workplace Relations Commission under the Industrial Relations Acts and is, in essence, a claim of constructive dismissal.

Section 13 Industrial Relations Acts, as amended, states as follows:

13.—

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to an [Adjudication Officer].

(3) (a) Subject to the provisions of this section, an [Adjudication Officer] shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute,

In line with the above, I will proceed to investigate the Worker’s dispute and make a recommendation, if appropriate or necessary, arising from that investigation.

Firstly, I am satisfied that this case may be informed by the Unfair Dismissals Acts in respect of constructive dismissal cases. I also note that significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy the dual tests of (1) Breach of Contract and (2) Reasonableness. The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign. However, it is now also generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. All other reasonable options, including grievance procedures, must be explored.

The reasonableness test requires that the Worker must satisfactorily demonstrate that the Employer behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. In so doing, the Worker must also show that their own action/behaviour in resigning was reasonable in all the circumstances. 

Unlike a complaint of unfair dismissal, where the burden of proof rests with the employer to show that the dismissal was not unfair, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign based on their employer’s conduct.

It is also well established that a Worker is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated:  “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

In the context of the various authorities as set out above, it is clear that the Worker, in the instant case, must demonstrate that the Employer has behaved so inappropriately and/or unreasonably that she was left with no option but to resign.  In addition, the Worker is required to demonstrate that her behaviour was reasonable and appropriate in all of her interactions with the Employer in relation to the issues which constituted the dispute between them.

It is clear from the aforementioned cases of both Reid v Oracle EMEA and McCormack v Dunnes Stores that the test of reasonableness requires that an employee who claims that they resigned because of the conduct of their employer must show that they made every effort, by utilising the internal procedures, to have their grievance addressed.

In the instant case, I note that the Worker chose to resign, prior to utilising the Employer’s grievance procedure and I find that this was unreasonable.

In summary, I find both that the Employer did not breach the contract of employment in a way such that it was reasonable for the Worker to resign and that she undermined her argument that the Employer acted unreasonably by her failure to attempt to resolve her grievances before she resigned.