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Labour Court finds Employee was Constructively Dismissed without any Grievance Procedure Required due to Unjustifiable Suspension

On 11th June 2019, the Labour Court overturned a decision made by a Workplace Relations Commission (“WRC”) adjudicator in awarding an employee €15,000 for constructive dismissal.  

Facts

The Claimant, a warehouse manager commenced employment with the Respondent in June 2010 and ceased employment on 28th June 2017.

In 2016 the Company was given an anonymous tip regarding possible theft of stock. 6 months later another employee was arrested and admitted the unauthorised removal and sale of chemicals. He stated he acted alone the Gardaí found no other staff member had a case to answer for.

In August 2016 the Claimant was interviewed 6 times in relation to the theft. The Claimant stated that these interviews were aggressive and accusatory. In January 2017 the Claimant was required to attend disciplinary meetings, chaired by an outside consultant. In February 2017 the Claimant was put on suspension with full pay and in March 2017 the outcome of the disciplinary investigation concluded the Claimant should be issued a final written warning to remain on his file for 12 months. A letter was then sent inviting him back to work.

The Claimant submitted medical evidence that he was unfit to return to work. The Claimant also appealed the decision and the appeal was heard by an alternative external consultant. The decision was upheld and the written warning remained on his file.

The Claimant did not return to work. On foot of this the Respondent arranged for the Claimant to be seen by a Medical Advisor. The advisor certified that the Claimant was upset by a difficult work situation and should remain on sick leave for a further 4 to 6 weeks.

The Claimant’s solicitors wrote to the Respondent on the same day rejecting the appeal findings, seeking the final written warning to be removed from the Claimant’s file, that no further disciplinary action would be taken, an explanation for the Claimant’s suspension and an undertaking that the Claimant would return to a safe working environment.

The Respondent replied that the disciplinary process was exhausted and when the medical report was received they would help the Claimant return to work. The Claimant’s solicitors responded that as the Respondent had refused to rescind the grossly unfair sanction he felt he had no option other than to resign.

Decision

In determining that the Claimant was constructively dismissed, the Labour Court held that the behaviour of the Respondent was so unreasonable that it was reasonable for the Claimant to terminate his contract.

In deciding whether the Claimant was constructively dismissed the Court relied on the reasonableness test set out in the case of Berber v Dunnes Stores Ltd (2009) 20 ELR 61. Finnegan J stated, “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that an employee can put up with it.”

The Court examined the treatment of the Claimant as a witness. From viewing transcripts it was clear the Claimant was not treated as a usual witness as there were suggestions of a disciplinary process and hints of potential dismissal.

The Court also questioned the Respondent’s decision to suspend the Claimant five months after the original interviews had taken place. The Court referred to the case The Governor and The Company of the Bank of Ireland v Reilly, here it is stated that suspension would normally be justified if seen as necessary to prevent a repetition of the conduct complained of or to protect persons from such conduct.

The Court ruled that the suspension was unjustifiable as the Claimant remained working five months after the interviews that, apparently prompted the instigation of the disciplinary process.

The Court found that the combined effect of the unfair procedures that the Claimant was subject to would amount to a reasonable person terminating their contract.

The Court held that the Claimant was constructively dismissed and awarded him €15,000.  The Labour Court did not have sufficient information from the Claimant to confirm his financial losses and on that basis was cautious about the amount of the award.

The unjustifiable suspension appeared to be a major part of the Labour Court’s considering that the Respondent’s conduct was unreasonable to such an extent that the Claimant was not required to first utilise the grievance procedure prior to resigning.    

https://www.workplacerelations.ie/en/cases/2019/june/udd1930.html

28th  June 2019

Anne O’Connell Solicitors

Fitzwilliam Hall, Fitzwilliam Place, Dublin 2

www.aocsolicitors.ie

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