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Award for Constructive Dismissal Where Employer did not Progress Grievance

In the case of Ciaran Roche v 3Rockeco Limited (ADJ-00035648) the Workplace Relations Commission (“WRC”) was required to consider whether 3Rockeco Limited (the “Respondent”) had acted so unreasonably as to amount to a repudiatory breach of its contract of employment with its employee, Ciaran Roche (the “Complainant”).  

On the basis of the Respondent’s conduct, the Complainant resigned from his employment and lodged a claim for constructive dismissal under section 8 of the Unfair Dismissals Act 1977 (the “Act”). He lodged a further claim under section 7 of the Terms of Employment (Information) Act 1994 (the “1994 Act”).   The Respondent disputed that the Complainant was dismissed and argued that it acted reasonably at all times.

Facts: The Complainant commenced employment with the Respondent on 23rd May 2016 as a Graphic Designer where he worked in the Events and Exhibitions department.   Government restrictions due to the Covid-19 pandemic led to the Complainant and a number of other employees being placed on temporary lay-off on 23rd March 2020.  The Complainant remained in contact with the Respondent, querying on numerous occasions when he would be returning to work.  In June 2020 he was informed that his area would be the last to re-open as a large proportion of his work related to events which were significantly affected by the Covid-19 restrictions. He was informed that should any roles become available in alternative areas, he would be considered for these.

In July 2020, the Complainant lodged a detailed grievance with the Respondent which was not addressed robustly or progressed in line with Company policy.  He therefore escalated his grievance to the General Manager who replied by way of email, but did not offer a grievance hearing even though same was provided for in his contract of employment.    

Around the same time, the Complainant became aware of a number of matters which he claimed demonstrated that he was being excluded from the business, These included the following: his office and department were moved without his knowledge; he was not invited to a company barbecue; he was blocked from his email systems and asked to return his security pass; he was not included in the team when a new website was launched introducing the team; and the Respondent advertised for staff with the Complainant’s skill set and hired another employee for the role who had less experience than the Complainant.

In September 2021, the Complainant’s solicitor wrote to the Respondent setting out all of the above issues and informing the Respondent that the Complainant considered himself dismissed as of 19th August 2021 and seeking proposals to rectify same. No response was received from the Respondent, save for a phone call from the Respondent’s solicitor denying all matters. The Complainant’s solicitor again wrote to the Respondent in October 2021 confirming that if the Complainant’s employment was not terminated he was now resigning his position due to the conduct of the Respondent, to which the Respondent simply replied stating that the Complainant was not dismissed. 

The Complainant gave evidence of his attempts to seek alternative employment and confirmed that he obtained work in November 2021, at a substantially lower salary to that which he earned in the Respondent.  

The Respondent denied that the Complainant had been deliberately excluded from the Company and reiterated that he would have returned to work when the events industry reopened had he not found alternative work.   It gave evidence that the Complainant had breached the restriction clause provided for in his contract by hosting a website.   It further claimed that the complainant had resigned and not been dismissed and had secured other employment.   Evidence was given by the Managing Director of the Respondent that he believed he had dealt with the Complainant’s grievance by way of an email response and he believed this was sufficient due to the government restrictions in place at the time.

Decision: The Adjudicator, John Harraghy, noted that the fact of dismissal was in dispute. The Respondent’s argument was that it continued to employment the Complainant in line with Government guidelines in place at the time, which required the temporary closure of the Events and Exhibitions area where the Complainant worked. On the other hand, the Complainant’s position was that he was either dismissed or constructively dismissed on 19th August 2021.

The Adjudicator noted that it was for the Complainant to establish the fact of dismissal. He considered that the fundamental question in this case was whether or not there had been a repudiatory breach of the Complainant’s contract of employment amounting to the constructive dismissal of the Complainant. In addressing the issues raised by the Complainant, the Adjudicator said as follows:

“I accept that there can be a valid explanation for most of these events and indeed the context in which the [sic] occurred may also be a factor. What is clear is the effect of the totality of these events had on the complainant. They reinforced his belief that the respondent was not engaging with him in a meaningful way. The respondent stated that they held the complainant in high regard, so this mixed messaging was not helpful. I note that the respondent submits that this could be ’an example of different people reacting differently to stressful situations which are outside of everybody’s control’.  These incidents do not in themselves constitute a dismissal by the respondent.” 

The Adjudicator referred to the test for a repudiatory breach set out by Lord Denning M.R. in Western Excavating Limited (ECC) v. Sharp [1978] IRLR 332:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

The Adjudicator noted the high bar  required for a claim of constructive dismissal to succeed. The Adjudicator was satisfied that:

He then turned to consider whether or not the Complainant was entitled to regard himself constructively dismissed because of the cumulative effect of the Respondent’s actions.

 The Adjudicator pointed out that an employee is required to bring concerns to his employer’s attention and give them an opportunity to rectify matters prior to resignation. In this case, the Complainant attempted to engage with the Respondent for a number of monthsbefore resigning from his employment. The Adjudicator placed significant emphasis on the fact that the Complainant had done so, noting that the Complainant had raised matters formally, escalated his grievance upon receipt of a short response, and pointed out that his contract of employment entitled him to a grievance hearing, to no avail.  He then sought legal advice and his legal representative also engaged with the Respondent, but the Respondent still failed to hold a grievance hearing.

Finding for the Complainant, the Adjudicator stated as follows:

“I am satisfied that the complainant attempted to raise a formal grievance, but the respondent circumvented its own procedure and did not have any engagement with the respondent.  The complainant made many requests to clarify his position and there was a clear deficiency in the respondent’s dealings with the complainant and these actions by the respondent do not constitute what could be described as a reasonable response in relation to this matter.  There is clear evidence from the respondent’s witnesses that they considered the grievance dealt with notwithstanding that they also confirmed that it was not dealt with in accordance with their grievance policy.” “In view of these circumstances, I have concluded that the behaviour of the respondent was unreasonable such as to justify the complainant and terminating his employment by way of constructive dismissal.” 

The Complainant had sought reinstatement, re-engagement or compensation as a remedy for his constructive unfair dismissal.   The Adjudicator awarded €33,718 which took into account the Complainant’s actual loss to the date of the hearing, his ongoing loss due to lower pay in his new employment, and included €6,440 for “the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payment Acts, 1967 to 1973.” The Adjudicator made it clear that the loss was not in any way attributable to the Complainant.

Takeaway for Employers: There is a notoriously high bar required in constructive dismissal cases. While constructive dismissal cases are difficult cases to bring home, this case demonstrates that it is essential for employers to follow their own procedures and engage constructively with aggrieved employees if they are to successfully defend a complaint of constructive dismissal.  This case demonstrates that employers will be required to do so even in difficult circumstances, such as the situation that prevailed during the height of the Covid-19 pandemic.

Link  – https://www.workplacerelations.ie/en/cases/2023/february/adj-00035648.html

Authors – Nicola MacCarthy, Jenny Wakely and Anne O’Connell

31st March 2023

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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