‘’The termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.

So, in other words it is the Employee, not the Employer, who makes and activates the decision to terminate or end their own employment with their employer. The employee has decided enough is enough regarding their employers conduct and it is time to move on.

Now what generally happens in these cases is that say Mr. X has been fed up working with the employer for a while, but Mr. X has a family, and bills to pay and just puts the head down and decides to stick it out. This is until Mr. X just can’t take it anymore and says enough is enough and nothing is worth what he has to put up with at work. This hypothetical employee then makes the decision to leave with haste, before invoking any of the Grievance Procedures the employer has.

After notifying the employer they are handing in their notice, they then attend with a solicitor, as they are justifiably aggrieved at the employer’s conduct. The solicitor then advises them one option is to take legal action for constructive dismissal, however, this type of action is not to be commenced lightly. We would say that approximately 90% of clients do not attend with us for advice prior to making the decision to leave the employer in constructive dismissal actions.

What generally occurs is they leave the employment and after being at home for a short time, it is then a person attends with their solicitor.

To succeed in a constructive dismissal action is considerably harder than succeeding in a legal action where the employer dismisses the employee ie an unfair dismissal action. Grievance Procedures should be availed of by the employee before leaving the workplace.

A recent case is a cautious tale in this regard.

In ADJ 15238 it was held ‘’I find that the Complainant did not give the Respondent an opportunity to address his concerns before taking the decision to resign. Accordingly, I find that the Complainant was not constructively dismissed from his employment’’.

In constructive dismissal actions the onus of proof is on the former employee to prove the case.

The complainant must satisfy either of the following two tests :

1. The Contract Test

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 other performance, or

• The Reasonableness Test

The reasonableness test assesses the conduct of the employer and whether it conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.

The second test is the more common of the two the employee seeks to satisfy successfully.

According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61, it said that “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 the employee cannot be expected to put up with it.”.

A difficulty in constructive dismissal actions is that the conduct of the employee is also assessed objectively. An employee must show that he/she has no other option but to resign.

The burden of proof on employees in these cases is very heavy. An employee must show not only that they acted reasonably but also that the availed of all each and every internal mechanism, or Grievance Procedure to resolve the dispute, prior to leaving the place of employment. The employee must also shine a light on the employer’s conduct, to prove that it was so unreasonable that it is clear the employee just couldn’t put up with it any longer.

It is a very difficult defence to beat when an employer says and can prove that the employee did not activate the internal Grievance Procedures prior to taking the resignation step.

In R. – V- AWC it was held “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.

The employee must be able to prove they pursued their grievance through the procedures laid down in the employment contract before resigning their position. There is an exception to the rule, but it is a very small window to avail of.

In the case of UD720/2006 it was held: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In a nutshell, any employee who is aggrieved at the conduct of their employer and knows themselves it is getting to the point where they just can’t take it anymore, should avail of each and every internal Grievance Procedure before resigning. Then an employee is in a stronger position when it comes to succeeding in a constructive dismissal legal action. It can be unfair an employer can argue they didn’t know the issues an employee had when it is obvious to anyone with opened eyes, but if an employee would just go through the steps written in the Grievance Procedure, it would make their life easier with this claim.

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