An interesting case was recently decided by the Labour Court that highlighted the obligations on an employee who might subsequently seek to raise a claim for constructive dismissal.

Ms. Catherine Flynn (the “Complainant”) commenced employment with TUSLA (the “Respondent”) as a Temporary Residential Care Staff in the High Support Unit, on a nine-month fixed-term contract in 2006, eventually becoming permanent in 2007, resigning in 2016, allegedly on the ground of constructive dismissal (an appeal of an Adjudication Officer's Decision no: ADJ-00005216).

The decision by the Labour Court highlighted the fact that, a resigning employee needs to raise particular grievances with an employer, prior to a resignation, if those circumstances are to form the basis of a subsequent claim for constructive dismissal.


The Complainant had suffered a number of physical assaults during her course of employment, resulting in her taking sick-leave at different stages. Following these assaults, the Respondent explored the possibility of alternative positions for the Complainant, however, the Complainant did not have the necessary social care qualifications pertinent to certain roles, therefore the range of alternative positions available to her were limited. Positions as Health Care Assistant and Hostel Based Nurse Attendant were offered to her, but she chose not to avail of these options. The Complainant, at the time of her resignation, said that when there was no possibility of a transfer to another location, she made the decision to leave. The Complainant said that no one from the Respondent came to speak to her about her resignation. When she completed the “Resignation Form HR106” she said that she ticked box “Personal Reasons” as to why she had decided to resign and explained that she did this as she did not wish to have any bad feelings over her resignation.

The Law

Section 1 of the Unfair Dismissals Act, 1977 (the “Act”), defines constructive dismissal as follows: -

“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”

Section 6(1) of the Act states: -

6.(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

As the Complainant was alleging constructive dismissal, the fact of dismissal is in dispute and the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his position, often referred to as the “contract test”. This requires that an employer be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance” as held in Western Excavating (ECC) Ltd v Sharp[1978] IRL 332.

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so she is justified in leaving.

The question for the Labour Court to decide was whether, because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for her, to terminate the contract of employment.

Although it would appear the Complainant was relying on the contract test, many other issues were put in contention. Therefore, the Labour Court considered the various grounds relied upon in making make its findings.

The Decision

The Labour Court noted that the Complainant had endured two assaults at work, one in 2011 and the second in 2015, and that for that reason coupled with a variety of other reasons she had significant amounts of absences from her work in the period from 2011 until her resignation in 2016.

During this extended period, the Respondent facilitated her each time she sought adjustments in her working hours, removal from night duty, flexibility regarding her start and finish times and referral for consultation with the Occupational Health Physician.

In constructive dismissal cases, where the Complainant claims that the employer acted unreasonably, the Labour Court must examine the conduct of the parties. 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. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981.

The Complainant told the Labour Court that she did not raise a grievance at any time with the Respondent before making the decision to resign. She said that she was aware of the Respondent’s grievance procedure and had a copy of the Staff Handbook containing the procedure.

The Labour Court was of the view that an employer could not be expected to deal with an employee’s grievances in circumstances where an employee has failed to notify it of issues through the grievance procedure or otherwise. The Complainant in this case could have raised a grievance herself or through her Union. However, she failed to avail herself of any opportunity to put the Respondent on notice of the reasons she maintained lead to her resignation.

Based on the flexibility and support provided to the Complainant, the Labour Court accepted the Respondent’s contention that had the Complainant raised issues regarding support or additional training with it, it would have taken steps to address these.

In such circumstances, where no grievances had been made, where the Complainant’s decision to resign was conveyed in a friendly manner and where she indicated that she had personal reasons for leaving, the Labour Court was satisfied that it was reasonable for the Respondent to believe that this decision was made by the Complainant’s own free will. Therefore, the Labour Court took the view that the Complainant had not satisfied either element of the tests outlined above. Accordingly, the Labour Court determined that the Complainant was not constructively dismissed from her employment.