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WRC award overturned by Labour Court – Held Resignation Did Not Amount to Constructive Dismissal

In the recent decision of Leigh Bell v Cope Limited t/a Cope Galway, UDD2145 the Complainant had been awarded €8,400 in compensation for her constructive dismissal by the Respondent. On appeal to the Labour Court this decision was overturned, and the Court concluded that the Complainant was not unfairly dismissed.

Facts: The Complainant commenced employment with the Respondent in March 2013. The employment terminated following the submission by the Complainant of an email on 17th October 2018 tendering her resignation with two weeks’ notice. The Complainant submitted that she was constructively dismissed from her employment while the Respondent contested that no dismissal took place, and that the Complainant resigned from her employment.

The Complainant submitted that an incident took place in the employment on 17th September 2018 wherein a colleague was verbally aggressive towards her and extremely upsetting. The Complainant wrote to a HR manager of the Respondent by email on 18th September 2018 to make him aware of the alleged event. The Complainant accepted that she was aware of the formal grievance process but instead chose to deal with the complaint informally.

The Respondent submitted that the Complainant was advised that the formal grievance process was open to her and also discussed the Employee Assistance Policy with her. The Complainant went on certified sick leave and it was not until her return that a meeting was scheduled to discuss the alleged incident. The Complainant met with HR on 9th October 2018 to give her account of the event, which differed substantially from that of the other party. The other party was asked to join this meeting with the Complainant’s consent, but the Complainant became extremely distressed at the arrival of the other party and the meeting ended. The HR manager then facilitated the Complainant with two days special leave from 9th to 11th October 2019.  The Complainant returned to work on 12th October 2018 but was off thereafter until 16th October. On 17th October 2018 the Complainant submitted her resignation with two weeks’ notice with her last day of employment occurring on 30th October 2018.

Decision: The Court submitted that in order for a complaint of constructive dismissal to succeed the Complainant must have acted reasonably by providing the employer with the opportunity to address whatever grievance they have and by pursuing the grievance through the procedures laid down in the employment before taking the step to resign.

The Court concluded that the amount of time between the incident on 18th September and the time she attended work prior to her resignation from her employment was a very short period of time for the Respondent to deal with the matter where two employees disputed the factual matrix of the incident raised by the Complainant. The Court was therefore not satisfied that the Complainant had met the high bar which must be met to ascertain a complaint of constructive dismissal.

Takeaway for the Employers: Employers should ensure that following any incidents in the workplace that employees are made aware of the internal procedures open to them, i.e., grievance procedure and keep records of this e.g. follow up email. Employers should also ensure that employees are aware of any Employee Assistance Programmes open to them. Although the bar needed to be met by an employee to succeed in bringing a successful constructive dismissal complaint is high, employers should ensure that they put themselves in the best possible position to defend any such case by illustrating that they did everything possible to address the employee’s complaint and by following all their own internal policies and procedures.

Link  –  https://www.workplacerelations.ie/en/cases/2021/june/udd2145.html

Authors – Eva Lindsay and Anne O’Connell

22nd July 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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