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Employee Wins Constructive Dismissal Claim In The Labour Court Regardless Of Not Exhausting Internal Processes

Facts: The Appellant was employed by the Respondent as a training co-ordinator/instructor in 2001. The Appellant claimed that she was bullied by Ms X, a colleague and that the Appellant raised a complaint with her manager on 4th January 2018. This incident resulted in the Appellant taking sick leave due to work related stress. The Appellant’s complaint was not dealt with despite a number of interactions with her manager. The toxic and dysfunctional atmosphere left the Appellant with no option but to resign on 20th April 2018. The Appellant lodged a claim of constructive dismissal, which the Adjudication Officer (“AO”) found was not well founded as the Appellant had not exhausted the internal process. The Appellant appealed this decision of the AO to the Labour Court (“Court”).

Issue: The Court noted that in the course of the hearing, many allegations were made against Ms X and that those allegations were never investigated by the Respondent. In order to determine whether the Appellant was constructively dismissed, the Court considered the “Contract Test” and the “Reasonableness Test”.  In considering the Reasonableness Test, the Court referred to Travers v MBNA Limited (UD720/2006) and noted that the Appellant had to display that she had exhausted all internal procedure for dealing with complaints before resigning from their employment. While the Court noted that the Appellant had not exhausted all internal process, consideration was given to other features of the case.

The Court noted that the evidence of all 3 witnesses clearly reflected that the Appellant’s intended outcome regarding the complaint was that the management would discuss Ms X’s behaviour.  The Court further noted that the Respondent did not contact Ms X as soon the Appellant’s manager received a complaint or arrange for a conversation under the informal process provided for in its Procedure. The Court found that the actions taken by the Respondent were neither reasonable nor in accordance with their own procedures and reflected the lack of care shown toward the Appellant.  The Court noted that a promise was made that the Respondent would revert to her by 9th April 2018 and that it was not surprising to the Appellant felt let down by her employer and was left with no option by to resign.

Decision: As the Complainant’s representatives did not provide sufficient evidence to show the Appellant’s loss of earnings, the Court noted that the Appellant’s gross wage was €607.47 and that she was in receipt of Illness Benefit until October 2019. There were no substantive medical evidence provided by the Appellant’s representative to show that the Respondent was responsible for the Appellant not be available for work and hence this period was disregarded for calculating loss of earning. Taking into account the above considerations, the Appellant was awarded €10,000.

Takeaway for the Employers: This case once again emphasises on the importance of following the Company Procedures to the letter. The employer in this case did not follow the procedures which it had in place to deal with grievances and displayed an obvious lack of care towards its employee by its failure to follow up with the employee after getting her medically assessed. The Labour Court did not see the employee being on sick leave as an acceptable basis for the employer’s lack of action or follow up.

Link https://www.workplacerelations.ie/en/cases/2020/september/udd2026.html

Authors – Anne O’Connell & Chaitra Girish Mallya

30th September 2020

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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