Constructive dismissal arises where an employee terminates their contract because the conduct of the employer is so unbearable that the employee cannot be expected to tolerate it, and has no option but to resign.

For constructive dismissal to occur, the employer’s conduct must be so serious that it caused a breach of the fundamental principles of the employment contract and can include, for example:

 

  • Refusal to pay wages;
  • Failing to ensure mutual trust and confidences maintained;
  • Failing to allow an employee to take the legal amount of holiday entitlements;
  • Refusing access to a pension scheme;
  • Changing workplace location without suitable notice and contractual provision;
  • Sexual harassment / bullying harassment.

 

The burden of proof

The burden of proof in such actions is a heavy one and rests with the employee. In that regard, constructive dismissal claims often fail because the employee cannot reach the high threshold of proving both the unreasonableness of their employer’s conduct and that their consequent resignation was reasonable and warranted.

An employee who makes a claim of constructive dismissal will be required to demonstrate that he or she acted reasonably throughout the alleged incidents, including the decision to resign. Employees must also show and would be well advised to exhaust all internal grievance procedures prior to the resignation.

 

Do you need to raise the matter with your employer?

Employees making a claim for constructive dismissal will be required to have raised the matter with their employer and allowed the employer an adequate opportunity to rectify the situation prior to termination of employment.

 

What is the likelihood of winning a claim for constructive dismissal?

Of all claims for unfair dismissal, a claim for constructive dismissal is always the most difficult to win and broadly speaking the majority of such claims continue to fail. Where such claims have succeeded, complainants have been awarded compensation rather than reinstatement or reengagement.

It is imperative for an employee to make reasonable efforts to address their grievances before resigning and resigning should generally be the last course of action.

Employees seeking to make a claim for constructive dismissal should do so within six months from the date of dismissal by filing a claim with the Workplace Relations Commission.

Given that this is a complex area of law it is generally advisable for employees to take detailed advice prior to resigning from their employment with a view to taking such claim.

 

Article by: Marie Hynes, Senior Associate Solicitor at Augustus Cullen Law Solicitors. Augustus Cullen Law is based at 7 Wentworth Place, Wicklow. If you would like more information on this topic, call +353 404 67412 or email info@aclsolicitors.ie


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