Constructive Dismissal in Ireland
Were you forced to go?
If, as a result of the actions of the employer, you are left with no option but to resign from your employment, then you may be able to succeed in a claim for unfair dismissal.
The term constructive dismissal means that, although you resigned, it can be construed as a dismissal if the conduct of the employer was such that it forced you to leave. Your resignation is treated as involuntary if it arises from the unreasonable behaviour of the employer.
The statutory definition
Section 1 of the Unfair Dismissals Act 1977 defines constructive dismissal 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...”
Do I qualify to bring a claim for constructive dismissal ?
There are certain requirements which must be met in order to bring a claim:
You must be an employee and
have at least one year's continuous service with the employer on a contract of employment at the date of dismissal.
There are exceptions to the continuous service rule. Dismissal based on any of the following(1) Pregnancy related matters (2) Trade union activity (3) Exercise of rights under protective legislation.
You must not have reached the retirement age, where one is mentioned in your contract of employment. If no age is mentioned then this requirement does not apply.
You are excluded from the benefit of the act if you are on a probation period not exceeding one year or
You are a FAS trainee,a member of the Defence Forces, or the Gardai . You are a civil servant, officer of VECs, or an officer of health boards HSE.
What proof is needed?
In unfair dismissal cases the burden is on the employer to prove that the dismissal was fair. In a claim for constructive dismissal the burden of proof moves to the employee making the claim. That means that you have to prove that the employer's behaviour was unreasonable. This can require proof that you took every step available to you in exploring grievance resolution, prior to resigning. You must show that it was impossible for you in all reasonable circumstances to continue in your employment. It is for this reason that resignation should be a last resort.
Learn about gross misconduct in this article
Tests for Constructive Dismissal
If your dismissal passes either of these tests then you have a good chance of succeeding in your action.
1.The contract test
This examines whether or not the resignation arose as a result of a breach of contract by the employer.
The reasonableness test.
This examines the question was the behaviour of the employer so unreasonable that the employee was left with no option but to resign.
See related article, Losing your job here
Take advice from an expert before you resign
If you believe that you are in an impossible situation at work and the only option left is to resign, take care, take advice. It is good to get the opinion of an experienced expert who can give impartial advice.
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