The Employment Appeals Tribunal has ruled in favour of an
employer in a highly-publicised case in which a former employee who
resigned from her position, took a claim of constructive dismissal
against the company.
In the recent determination of Barry v Quinn Insurance
Limited UD1775/2010, the Tribunal found that the former
employee did not act reasonably in resigning as she did not appeal
the outcome of an investigation of a bullying and harassment
complaint brought by her.
Claimant reassigned
The claimant alleged that within weeks of commencing her
employment as a claims co-ordinator in March 2008, she encountered
difficulties with one of her team members who was employed as a
regional claims controller. The claimant outlined that the
team member acted in a harsh and ignorant manner towards her, which
left her feeling isolated and led to panic attacks. When the
claimant reported the matter to Human Resources (HR), she felt they
did not treat her complaint seriously. However, the claimant
was reassigned to a new section in March 2009.
In April 2009, the claimant attended her doctor who certified her
as medically unfit for work. She then notified HR of the
reasons for her absence and the issues she had encountered in the
workplace. HR offered her medical assistance and advised that the
matter could be formally investigated and dealt with under the
company's grievance procedure. Over a protracted period, while
the claimant remained on sick leave, formal grievances were made in
writing and an investigation was carried out. Prior to the
conclusion of the investigation, the claimant was offered the
option of returning to work to a different role, returning to work
and continuing with the grievance procedure or making further
visits to the occupational therapist. However, none of these
were accepted. In November 2009, the investigation concluded
that there was no evidence of bullying and harassment. The
claimant was reminded of the alternatives and provided with a right
to appeal the decision.
After receiving no response from the claimant, HR wrote to her in
January 2010 asking her to respond to their correspondence
otherwise they would assume that she wished to terminate her
employment contract. The claimant eventually resigned from
her position the following month and subsequently took a claim of
constructive dismissal.
Tribunal's determination
In its determination, the Tribunal outlined that an employee is
entitled to terminate the contract only when the employer is guilty
of conduct that amounts to a significant breach going to the root
of the contract or shows that the employer no longer intends to be
bound by one or more of the essential terms of the contract.
A reasonableness test is applied that asks whether an employer
conducts their affairs so unreasonably that the employee cannot
fairly be expected to tolerate it any longer and justifies the
employee leaving. Also, if the changing nature of the tasks for
which an employee was employed constitutes a repudiation of the
contract of employment then a repudiatory breach would occur and a
resignation may be considered an unfair dismissal by virtue of
constructive dismissal.
The Tribunal determined that the facts of this case did not amount
to such a breach of contract to the extent that the employee was
left with no reasonable alternative but to leave. It also said the
claimant did not produce sufficient and adequate evidence that the
employer dismissed her even in a constructive fashion. The
Tribunal noted that the regional claims controller's manner and
strong language used was unacceptable, but in itself was not
sufficient reason for the claimant to resign. The claimant
did not appeal the outcome of the company's decision in
relation to her complaint of bullying and harassment. Except
in very limited situations an employee must exhaust all avenues for
dealing with their grievances before resigning. The
claimant's resignation was deemed unreasonable by the Tribunal
and her claim under the Unfair Dismissals Acts, 1977 to 2007
failed.
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