The Complainant claimed that he was constructively dismissed by the Respondent arising from the way he was treated during the course of his employment, particularly during the Covid-19 Pandemic. The Complainant referred the complaint of unfair dismissal to the WRC in March 2021.  The Respondent contended that the Complainant was still an employee and therefore, there was no basis for this complaint.

It is common case that there was no express dismissal or resignation.  The Complainant was employed as a Refrigeration Engineer by the Respondent.  The Complainant had never been furnished with a contract or a statement of the written terms of his employment.

In March 2020, the Complainant was laid off by the Respondent owing to mandatory business closure during the first Covid-19 Pandemic lockdown.  The Complainant claimed the Pandemic Unemployment Payment.  He did not avail of Jobseekers Benefit or seek alternative employment as he was repeatedly promised the resumption of work by the Respondent.  The Complainant requested redundancy, but this was refused with the Respondent maintaining that he had broken the Complainant’s contract halfway through by leaving him off work for a week.

The Complainant unsuccessfully tried to contact the Respondent on numerous occasions. Upon hearing nothing further, the Complainant considered his employment to have terminated such that he was constructively dismissed from December 2020.  He commenced new employment from January 2021.  He had earned €600 net per week with the Respondent and significantly more in his new employment. The Complainant felt that the Respondent had kept him hanging on for work before washing his hands of him.  As a consequence of this treatment, the Complainant had suffered from extreme anxiety requiring professional support.  The Complainant submitted that in all of the circumstances he was entitled to treat the employment relationship as having terminated constituting constructive dismissal.

The Respondent agreed that he had employed the Complainant as a Refrigeration Engineer from the 13th of November 2014 and had not furnished him with written terms.  The Respondent maintained that the Complainant had never been dismissed and was still in his employment.  In March 2020, the business had been forced to close owing to the Covid-19 Pandemic and all employees including the Complainant were verbally informed of a lay-off situation and paid for the following week.  This was confirmed in a follow-up letter sent to all employees, also informing them of their entitlement to apply to the Department of Social Protection for Pandemic Unemployment Payment (PUP).  The Complainant had agreed to this lay-off. The Respondent confirmed in a follow-up letter that he explained that the Complainant had not been made redundant and was still an employee. The Respondent contended that he had acted reasonably towards the Complainant in difficult circumstances and that the Respondent had also suffered from financial hardship.  The Respondent accepted that he should have provided the Complainant with a statement of the written terms of his employment.

The Adjudication Officer noted that apart from the exception of extenuating circumstances, there should be no reason as to why regular communications via telephone and email between employers and employees could have been maintained during the Pandemic. Albeit a small employer with limited resources, the Respondent was still obliged to abide by his statutory obligations and to inform himself of same.  The failure to provide the Complainant with a statement of the written terms of his employment combined with the absence of a grievance procedure, the Adjudication Officer was satisfied that the employer conducted his affairs so unreasonably that the Complainant could not be expected to put up with it any longer.

 Accordingly, the Adjudication Officer found that the Complainant had been constructively dismissed and awarded a sum of €10,000 in compensation to be paid to the Complainant, this amount was to account for the Complainant’s losses and factored into account that the Complainant acted quickly in securing new employment.

Guidance for Employers

To prove a valid claim for constructive dismissal, an employee must have at least one year’s continuous service. Unlike complaints of unfair dismissal, the onus/burden of proof is on the employee to show that leaving was justified.  Case law also confirms that save for exceptional situations, an employee must have firstly exhausted all alternative avenues before resigning and/or leaving the employment. Employers will not be given the benefit of the doubt or treated favourably just because they make the case that they were working under difficult circumstances and/or making a loss. They have statutory obligations to employees that must be carried out at all times. 
https://www.workplacerelations.ie/en/cases/2022/february/adj-00032718.html