Constructive Dismissal*

By November 23, 2021Employment Law

Constructive Dismissal*

The case of Oak Lodge Fostering Limited and Lareina Kirwan UDD2161 is an interesting case in that it is one where the employee won. The Labour Court in this case stated that the law on this is whether it was reasonable for the complainant to terminate her employment because of the actions of the respondent. It was not disputed that there was a unilateral decision to cut the salary in half by reducing the working hours by 50%. The witnesses for the respondent suggested that this was done contrary to advice they received from HR advisors and was not aligned with their own disciplinary procedure. It was submitted that reducing the wages in this manner was a significant breach going to the root of the contract and that it was reasonable for the complainant to terminate her employment. The Court found that the decision to cut the salary in half without any justification of doing so was a significant breach going to the root of the contract and on that basis the employee was entitled to terminate the contract.

The Court pointed out that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. The Court took the view that the witnesses supported the complainant’s contention that there was a complete failure by the respondent to carry out a fair and impartial investigation or to follow their own procedures. The Court determined that this failure constituted unreasonable behaviour and accepted the evidence that based on the behaviour she could not have confidence in her grievance being addressed in a fair manner. The Court pointed out that this belief was supported by the fact there was no appeal available to her in respect of the outcome of the disciplinary process or the sanction imposed therefore she did not engage with the respondent’s grievance procedure. The Court overturned the decision of the Adjudication Officer and awarded €13,346.

The interesting aspect of this case is that this is one of a few cases where an employee has won without going through the grievance process.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.

Richard Grogan

Author Richard Grogan

More posts by Richard Grogan
English EN Hungarian HU Polish PL Russian RU