Another case has been submitted where the dissenting opinion of one of the members of the chair paints a very different view to the overall determination of the case. In the case of Julieanne Comiskey -v- Geraldine Taggart Sports Limited T/A Bruce Betting (UD1715/2010) the employee left their position prior to a disciplinary hearing, and successfully claimed that they were constructively dismissed.
The employee worked for the employer since 2005 and in 2009 received an informal warning regarding her attitude to customers, and also a formal final written warning in March of that same year. In 2010 a new Manager was brought into the shop and she was asked to show her how to do everything, and the employee contends that in May 2010 it all came to a head where she made a mistake and when she called the Manager to inform them of this, they were irate and told her it would be taken from her wages and she would receive a further written warning. She left and did not return to work.
The employers contention is that this employee was difficult with other employees and the final written warning was withdrawn after a letter from the employees solicitor. With the incident that led tot he employee leaving she gave a customer a €500 credit bet which was completely against well know procedures and was considered gross misconduct. when the employee informed the Employer, she was informed that a disciplinary hearing would have to take place and the employee may be required to pay back the money. The employee subsequently left and went out on sick leave.
Determination
In the determination it is interesting that the dissenting opinion is on the basis that the employee should have participated in the disciplinary process and/or utilised the Company grievance procedure as necessary. the member of the Tribunal felt that the employees behaviour to leave did not support the reasonableness of the claim for constructive dismissal.
The remaining members of the tribunal felt that the employer failed to act reasonably as prior to this incident the employee was moved to different stores and the Tribunal felt she was demoted in this instance. The Tribunal also concluded that the Employer "pre-judged" the issue and blamed the employee for the mistake, and this along with the previous treatment in the Company had justified the reaction of the employee to leave their employment without invoking the Grievance procedure. The Tribunal awarded €10,000 in compensation in this case.
This case is interesting for two reasons
- it is further evidence of a case where the employee did not invoke the internal Grievance process prior to their resignation, which historically would have rendered a claim for constructive dismissal invalid. However recent cases have seen that this is no longer a pre requisite for a claim.
- the dissenting opinion in this case is based on the fact that the employee did not attend the disciplinary hearing, interestingly it seems from this case that the employer did in fact prejudge the guilt of the employee and had they held a disciplinary hearing, it may well have resulted in a constructive dismissal or unfair dismissals claim anyway. However by leaving their employment prior to this they never exhausted the internal procedures prior to their resignation.
