Richard Grogan: Constructive dismissal – the obligation to use internal grievance procedures

Richard Grogan

In case ADJ20041 the AO in this case helpfully set out the law at some length.

The AO quoted the book of Dr Mary Redmond, Dismissal Law in Ireland page 340 which states: “There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so to an employee should invoke the employer’s grievance procedure in an effort to resolve his grievance. The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed. Conway –v- Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning without first having “Substantially utilised the grievance procedure to attempt to remedy her complaint.”

The case of Berber –v- Dunnes Stores 2009 ELR61 is a case which was also quoted where Finnegan J stated: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is as such that the employee cannot be expected to put up with it.”

The AO pointed out that it is well established that the complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve any grievance prior to resigning.

The case of UD1350/2014 M. Reid –v- Oracle EMEA Ltd is a case where the EAT stated: “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

The case of Tierney –v- DER Ireland Limited UD866/1999 is a case which stated: “Central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved.”

In the case of John Travers –v- MBNA Ireland Limited UD720/2006 is another case which stated: “We find that the claimant did not exhaust grievance procedures made available to him by the respondent and this proves fatal to the claimant’s case… In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

Also the case of Donnegan –v- County Limerick VEC UD822/2011 stated: “In particular the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace.”

The case of Murray –v- Rockavill Shellfish Limited 2002/23 ELR331 saw the EAT state: “It has been well established that a question of constructive dismissal must be considered under two headings, entitlement and reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning.”

This is a case where the AO went into some length in quoting the relevant case law. It is very helpful that the AO has taken the time to quote the relevant case law at such length.

Unfortunately, many employees simply resign without going through the grievance procedures. This case highlights that an employee who does so will unfortunately lose their case. We have quoted so many cases, as the AO did, to highlight the issue that a constructive dismissal case is one where the employee must use the grievance procedures.

There are some exceptions. Those exceptions are where the actions of the employer are so bad as to justify the employee resigning immediately. In effect this is going to be a very serious issue.

An employee does not have to use the grievance procedure if there has been a breach of contract. However, it cannot be some minor breach. It has to be a breach that would go to the very root of the contract.

Unfortunately, employees are losing constructive dismissal cases regularly. A limited number of cases are won but generally speaking these cases will be lost, by employees, unless grievance procedures are followed.