Constructive Dismissal – the Burden of Proof

Constructive dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977, 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

This effectively states that where an employee terminates their employment because of the actions of the employer, or their conduct towards the employee would be seen as breach of the Employment Contract, they can claim constructive dismissal.

However unlike instance of Unfair Dismissal where the burden of proof rests with the employer, in a case of Constructive Dismissal the burden of proof rests with the employee, to show they were left with no option but to terminate their employment.

Tribunals will look at the matter under two tests

  1. The Reasonableness Test
  2. The Contractual/Entitlement Test
Under the reasonableness test the Tribunal will ask the employee to argue that the employers conduct was such that it was reasonable for them to resign/terminate their employment. All factors will be considered with this, including the employees own actions.In the case of Byrne -v- RHM Foods (Ireland) Ltd. [UD 1979/69] the employee successfully argued constructive dismissal as they were isolated in their role and given no work to do, which the tribunal stated undermined her trust and confidence in her employer.

With the Contractual/Entitlement test the tribunal will examine if the employee was entitled to terminate their employment if the employer was guilty of a breach of the heart of the employment contract, or that the Employer no longer wished to honour certain terms inherent in the contract. In the case of Industrial Rubber Products -v- Gillon [1977] IRLR 389. there was a unilateral reduction in the employees pay which amounted to cause for constructive dismissal. Also the case of Coleman -v- S&W Baldwin [1977] IRLR 342. the employee had some of their duties and responsibilities removed from them successfully argued their case for Constructive Dismissal.

It is important to note that whilst an employee has access to the courts and specific protection is afforded to employees who suffer such issues, an employee must utilise the Company’s internal Grievance procedures prior to any resignation. 

The issue is that the employee was left with no option but to terminate their employment and this can only be seen when they have exhausted all internal procedures, and a breakdown in communication is not sufficient for such a claim. In the case of Olsson -v- John Quinn & Co. [1992] ELR 91 the employee alleged he was assaulted by the head barman and when difficulties he was experiencing were not resolved he walked out and claimed for Constructive Dismissal. In this case the tribunal found against the Employee as it was not reasonable for him to leave his employment in the manner in which he did as the employee was unaware of the incident which led to this.



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