Employers should be afforded sufficient notification of an employee’s grievance and be given reasonable opportunities to resolve the grievance before it can be considered a constructive dismissal. We look at a recent related Employment Appeals Tribunal decision and suggest helpful tips for employers faced with constructive dismissal scenarios.
In this case (UD35/2013, Chair: D Hayes BL), the Claimant (the “Employee”) resigned before allowing the Respondent a reasonable opportunity to resolve his grievances. The Employee commenced working with the Respondent (the “Company”) in 1999 as a sales representative and resigned in 2012 in circumstances he alleged amounted to constructive dismissal. He told the Tribunal he had built up a significant customer base over the years, but it had declined significantly from 2009 with the downturn in the economy.
A new manager was hired by the Company to bring some structure to the sales force. The Employee alleged that with the new manager’s arrival, unrealistic targets were set. Following continued poor performance in 2010, the Employee was called to a disciplinary hearing. During the hearing, the Employee made it clear that “he didn’t want to be managed and wouldn’t be”.
The Employee went on stress-related sick leave and was later assisted in his return to work by the Company. However, poor performance continued to be an issue and in early 2012, following a disciplinary meeting and formal verbal warning, the Employee went on sick leave again. During this period, the Employee was informed that he had used up his entitlement to sick leave. The Employee queried the Company’s interpretation of his sick leave entitlement and stated that he considered his treatment bullying and harassment.
Response to complaint
The Company requested further detail of the Employee’s bullying complaint so that a complete investigation could be undertaken. When the Employee provided this additional detail, they proposed having the Company’s financial director investigate the complaint. However, the Employee objected to the financial director’s nomination citing that she was “too close to the decision and policy making of the Company which brought about the incident of bullying in the first place”. The Employee said he was going to refer his bullying complaint to the Labour Court. He received no reply and on 3 August 2012 he sent a letter of resignation.
The Tribunal accepted the Company’s explanation for their failure to respond to the Employee for four weeks due to an internal mix-up where his letter was unopened. The Tribunal acknowledged that as soon as they opened the Employee’s letter, they asked him to reconsider his resignation and engage in mediation. He refused.
The Tribunal was satisfied that the Company was endeavouring to resolve the Employee’s issues but that the Employee did not co-operate and did not allow sufficient time. As a result of this determination, the Tribunal resolved to dismiss the claim.
In this case, certain steps taken by the Company helped to prevent the Employee from succeeding in his constructive dismissal claim. Some practical tips for employers to remember when faced with similar scenarios are:
- there is nothing to prevent employers from seeking additional information relating to an employee’s grievance in instances where the grievance lacks detail;
- there is always merit in proposing a senior member of management with no prior knowledge of the grievance or involvement to investigate the lodged complaint. It demonstrates an employer’s will to fully investigate and resolve the grievance;
- employers should be open to engaging in mediation to seek resolution of an employee’s grievance. It exhibits a will to reach a mutually acceptable conclusion.