Creche Worker’s Week Cut from 5 Days to 3-Wins €10,000 for Constructive Dismissal

A crèche worker (child minder), whose working week was cut from 5 days to 3 due to the financial pressure on the employer, wins €10,000 for constructive dismissal.

Creche worker since 2006-employer wanted to introduce 10% pay cut-claimant refused to sign letter consenting to wage cut-claimant’s working week cut to 3 days-40% reduction in pay-her contract stated “normal working week will be 5 days”-claimant certified unfit to work by her doctor-eventually resigned-did not invoke grievance procedure-Tribunal to look at whether there was a “significant breach of the employment contract”-Tribunal finds that “employee was singled out following refusal to sign letter”-that employer then unilaterally altered the terms and conditions of the employment contract-reduced working week from 5 days to 3-reduced wages by 40%-Tribunal found that the claimant was constructively dismissed.

Decision published: 19th June, 2013

Read the full decision here.

Mechanic Fails in Constructive Dismissal Claim-Burden of Proof ‘Very High’

A mechanic who left work because of ‘work related stress’ fails in his case for constructive dismissal; EAT says the ‘burden of proof very high’.

Constructive dismissal cases are difficult to win because the burden of proof is on the employee to prove that she had no other option but to resign due to the unreasonableness of the employer.

The January, 2013 decision of the Employment Appeals Tribunal in the case of Daniel O’Gorman v Glen Tyre Company Limited illustrates this.

In this case Mr. O’Gorman was a mechanic who had gone on sick leave in May, 2010 and did not return to work. He resigned from his position in September, 2010.

Mr. O’Gorman brought a case for constructive dismissal.

Decision of EAT

The Employment Appeals Tribunal in its decision referred to the burden of proof on the employee as being a ‘very high one’. It held that the employee must prove that his resignation was not voluntary.

The EAT must look at the contract and decide whether there has been a significant breach of the employment contract going to the root of the contract.

If there has not been a breach by the employer the EAT will then look at the conduct of the employer and employee and decide on the ‘reasonableness’ of the decision of the employee to resign.

The claim by the claimant for constructive dismissal fell under three headings:

  1. The excessive workload placed on him
  2. Exclusion in the workplace, for example at lunch breaks
  3. Being bullied and harassed in the workplace.

Mr. O’Gorman suffered from Asperger Syndrome.

Mr. O’Gorman left work in May, 2010 and did not return due to stress, according to his parents and GP who stated it was work related. However, the employer stated that he did not know this until he received the 2nd medical certificate.

The EAT held that it is crucial in a constructive dismissal case that the employee fully informs the employer of the complaints being made against him and gives the employer the opportunity to resolve the problems.

Interestingly, the EAT in this held that the parents of the claimant had a duty to let the employer know of the issues.

The EAT found no significant breach of contract going to the root of the contract which would have prevented the employee from carrying out his duties as per the contract.

The EAT then examined the conduct of both parties and found that the decision of the employee to resign was not a reasonable one.

The claimant’s claim failed.

For claimant: Cathy McGrady BL instructed by Sharon Devine, Brian D O’Brien & Co. Solicitors, Swords, Co. Dublin

For respondent: Patrick Reidy, Reidy Stafford Solicitors, Newbridge, Co. Kildare

Decision published: Jan. 2013

Read the full decision here.

Pregnant Woman who Suffered Still Birth Awarded €72,000 for Unfair Dismissal

A pregnant woman who suffered the loss of her baby by still birth is awarded €72,000 for constructive dismissal due to unacceptable treatment at hands of her employer.

Claimant asked to compromise professional ethics-treated unacceptably in respect of pregnancy-employer unhappy that pregnancy would lead to maternity leave-increased her work load-would need to shorten her maternity leave-claimant received texts and emails while in hospital-bleed incident at hospital-claimant collected at hospital and ferried back to work-subjected to indecent comments after still birth-employer terminated part time work agreement after still birth-total disregard for claimant’s well being-speaker phone conversation-company intending to replace her-company director refused to discuss or engage-claimant leaves employment-Unfair Dismissals Act-awarded €72,000

For claimant: Neil Breheny & Co. Solicitors

For respondent: No appearance

Decision published: 15th November, 2012

Read full EAT determination here

Waitress Awarded €20,000 for Constructive Dismissal-Investigation Process Ineffective

EAT awards €20,000 under the Unfair Dismissals Acts 1977 to 2007 to waitress who thought she had no option but to leave her employment. Tribunal also finds that the investigation process ineffective.

Waitress-inappropriate touching by manager alleged-complaints and serious allegations-respondent acted quickly-found some of her allegations were substantiated-delay in issuing decision due to absence of waitress on sick leave-no detail of substance of investigation, the content or reasons for outcome communicated to waitress-appeal allowed to decision maker-appeal to decision maker not a valid appeal option-appeal to be sent to a third party not communicated to waitress-respondent made stringent efforts to keep waitress and manager apart-claimant never told she would have complete certainty that this would continue-investigation process flawed-no evidence of content of investigation-Tribunal does not believe “safe environment” to work in-efforts by employer to resolve issues-request from claimant’s union ignored-employer sought to engage directly with complainant-complainant had no choice but to leave-investigation process ineffective-Minimum Notice and Terms of Employment claim not addressed and dismissed-awarded €20,000 under Unfair Dismissals Acts.

Decision published: 30th October, 2012

Read full determination of EAT here.