Guest post by the Augustus Cullen Law team
In contrast to unfair dismissal – where the burden of proof is on the employer to prove that the dismissal was fair – in constructive dismissals cases the burden of proof is on the employee to show the dismissal was constructive.
However, even with that in mind, it’s important that employers have procedures in place to avoid constructive dismissal cases occurring in the first place.
In this article, we will focus on constructive dismissal and how you can safeguard your company against successful cases.
So, what should you consider?
Obviously, employees should be paid, as “when as employee provides labour and services to an employer it is reasonable for the employee to expect to be paid for its labour and or services”. If an employee isn’t paid, a constructive dismissal case becomes very strong indeed.
In less straightforward cases, the Workplace Relations Commission (WRC) can conduct a “reasonableness” test, whereby it “asks whether an employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to tolerate it any longer and justifies the employee leaving”.
This is important, as even if an employee can claim to have been treated badly by an employer, if the company has put in place a number of steps to deal with an issue like this, it can be seen to have acted in the right manner.
In the event of an employee grievance, a company should have:
- Developed a grievance procedure;
- Provided, upon request, a copy of the grievance procedure;
- Carried out an investigation in line with this procedure;
- Provided the claimant with an update of the investigation;
- Offered the claimant alternative roles to return to work;
- Advised the claimant of their right to appeal the result of the investigation; and
- Invited them to a meeting to discuss the investigation’s findings.
If an employee does not exhaust all the avenues available in such a scenario, then the chances of winning the case of constructive dismissal lessen.
However, it’s important to remember that, while these avenues may seem reasonable in a medium to large organisation, in a small organisation it can lead to issues if no one serves in a dedicated HR role and the problem is with a staff member to whom the claimant actually has to bring the case e.g. a general manager.
Small companies must prepare for these potential scenarios and ensure their grievance procedure outlines a valid way with which complaints can be dealt, as well as making sure that employees following such a procedure do not suffer adversely as a result.
By taking note of these examples and keeping in touch with WRC developments, employers can help to protect themselves against successful constructive dismissal cases.