Constructive Dismissal is rarely looked up in the lexicon of employment law by the trade union representative because it means in essence that an employee was forced to resign in circumstances where there was a significant breach of the contract of employment. The natural instinct of the trade unionist is to give assistance to members in standing up to the employer and to seek to resolve issues as an alternative to resignation. Most cases which end in an alleged constructive dismissal are first sighted by the Union after the member has resigned. Such cases are extremely challenging, not least by nature of the fact that one of the core requirements for a successful claim is that the employee must show that all avenues of redress within the employment were exhausted before resignation occurred.
The route to successful vindication of a member’s rights in constructive dismissal cases has many pitfalls and there is an understandable level of confusion out there with regard to worker’s rights in this precarious area.
What is the difference between “ordinary” dismissal as understood and constructive dismissal?
In constructive dismissal, the employee has terminated the contract of employment therefore the fact of dismissal is in dispute. The employer terminates the contract in conventional dismissal scenarios.
Another fundamental difference is that in constructive dismissal the burden of proof is on the employee to show that in essence he/she was dismissed. This means that the employee gives evidence first and must persuade the Employment Appeals Tribunal, or the Rights Commissioner, that he or she was forced to resign because of a significant breach of the contract of employment
In a conventional dismissal claim the burden of proof rests with the employer to show that the dismissal was fair.
What is the legal definition of constructive dismissal?
Section 1 of the Unfair Dismissal gives the definition as:
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.
Can you explain further please and give some examples?
Generally it means that there has to be a significant breach of the contract by the employer going to the root of the contract, or that the conduct of the employer amounted to such a breach, or a combination of both to the extent that the employee was forced to resign. Examples could be:
- A significant reduction in pay, except where there is deemed to be a contractual right on the part of the employer to vary pay or there was a collective agreement which varied pay
- Employers failure to pay Tax and PRSI contributions
- Sexual Harassment
- Bullying and Harassment
What about the conduct of the employee/claimant?
An employee who makes a claim of constructive dismissal is generally required to show that he/she acted reasonably throughout the alleged happenings, including the decision to resign. The employee must also show that he/she has exhausted the internal grievance procedures. In the case of a claimant being a member of a union, he/she will likely be required to have raised the matter and allowed the union to intervene on their behalf before the termination of employment.
What advice can you give where an employee feels that undue pressure is being put to bear on them to such an extent that a resignation might seem like the only solution?
Early intervention is crucial. A union member should seek immediate assistance from a representative if they feel they are under such pressure. This allows the union to seek to utilise the internal procedures and attempt to stymie any unacceptable behaviour or attempted significant breach of contract on the part of the employer. A member should never resign without first seeking advice and representation. Naturally, it’s a lot easier to fight from within the tent than from without. Even if you believe you have a strong case it can take up to two years and more to have it heard at a third party.
Of all the claims under unfair dismissal, a claim of constructive dismissal is always the most difficult to win. The act of resigning from a job, by its very nature, does not easily sit with a subsequent claim for unfair dismissal. It requires a lot of work and a lot of proof to convince a Tribunal that a person was forced to resign. Resigning and then claiming constructive dismissal is akin to walking along the edge of a dangerous cliff. There is no guarantee you will arrive safely but if there is no other route, it might be the only route under extreme circumstances. Always seek advice because there may well be other routes to explore. Help is always available for a SIPTU member.