In what is a very strange decision, the case of Burke v Brothers of Charity Services South East UD362/2011 is noteworthy as it runs somewhat contrary to a lot of current case-law on the matter of Constructive Dismissal.
In this case the employee was offered the opportunity to utilise the Company's Grievance procedure to address her issues, however this was rejected as they employee felt it would not be of any use.
In this case the tribunal noted that in the absence of good cause it is desirable and preferrable that the grievance process be utilised and exhausted, and as such the employee was awarded compensation.
As a background to this case the employee was a locum care assistant since April 2004, and would care for residents, and assist them with a wide array of tasks. the employee contends that a number of complaints were made against her following a code of practice seminar in January 2010. One of the complaints made was by a supervisor in a particular centre. She maintains that this supervisor had particular issues with her, and as such staff must request her services, and the level of work correlates to this. As a result the level of work available to her diminished.
In May 2010 the employee had a meeting with a fellow employee she was having difficulty with and it was agreed they would "move on". Following further difficulties the employee was brought to a meeting in July 2010 to discuss allegations of constant harassment to the employee by fellow staff members. The result of which was the offer to address these using the formal grievance process, which she declined.
The employee then outlined that she felt she could not continue to work in such an environment and after a period of sickness tendered her resignation in August 2010, stating she had endured continuous bullying and harassment and found her position untenable. She was offered the use of the Grievance and Dignity at work policy however said she could not avail of these.
The key element in this is that the Employer did not try to contact the employee to encourage her to use the Grievance process, as they felt there was no point. Pervious case-law was put to the tribunal where the employee in those cases failed to exhaust the Grievance procedure and as such it was fatal to any claim of constructive dismissal.
The Tribunal noted in these cases that the cases outlined do not provide reasons as to why the Grievance procedure was not utilised. This is perhaps a criticism of the current system whereby the level of detail in decisions can be few and far between depending on the case, and in issues such as this perhaps more detailed decisions could mitigate against this.
The employee was awarded €6,000, however as mentioned above this case seems to contradict current case-law. The key element, from the tribunals point of view, seems to be that the onus is on the employer to try to get the employee to utilise the process if it is thought necessary, and this is what was detrimental in this case and provided a different outcome to previous constructive dismissal cases.
