In a very curious case, an employer has failed to give evidence to a Tribunal in a matter where an employee was claiming Constructive Dismissal.
In this case the Tribunal afforded the employer the opportunity to give their evidence in the case however they declined such an offer, despite being told that a failure to put forward a defence would lead to the Tribunal making a decision based on the evidence to hand, which in this case was the employees assertion that they were constructively dismissed.
This case, Corcoran -v- Embassy of the Kingdom of Lesotho (UD201/2011), centred around an employee who worked with the embassy since 2006 as a Trade and Tourism attaché, and would report to the Ambassador. In 2009 the employee stated that the role began to face issues as the work she was doing went unacknowledged and she stated she was summoned to various meetings where it was alleged she was incompetent and documentation of the meeting was not a true reflection of the meeting itself. In February 2010 things came to a head with a dispute over the content of meeting minutes and the employee refused to sign such minutes, which the employee alleges was said to her would be seen as insubordination.
The employee subsequently went out of work on stress leave for one month and on their return again was asked for the areas of her work that they felt was causing stress. The employee stated that the work was not the issue and that they were more than capable of completing the role of attaché, and it was the behaviour of the Counsellor and First Secretary that had caused the stress.
In April 2010 the employee was invited to a disciplinary hearing where no details of the hearing were made known, despite requests, and there was no opportunity to have a representative present in the hearing. In june 2010 a decision regarding the hearing (5 weeks previous) was sent out and later in June 2010 a performance appraisal was conducted where a number of sections were left blank and a score of zero was given in other places. The employee then decided that her work was being completely disregarded and had no option but to resign from employment, as their claims to certain diplomats had gone unanswered and they felt there was no option but to resign.
In a very detailed determination the Tribunal again noted that the employer had failed to put forward their evidence which led to a decision being made solely on the basis of the evidence given by the employee. the case of Western Excavating (ECC) Ltd. -v- Sharpe (1978) ICR 121 was cited stating "...if the employer is 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".
the Tribunal was of the mind that the employee had acted reasonably and had tried to address the issue prior to the resignation, and labelled as "bizarre" the pressure the employee was put under to furnish warnings they had allegedly received. The Tribunal awarded compensation of €40,495.26 to the employee.
Whilst the content of the case is not unusual, the fact that the employer attended the hearing but failed to give evidence is very strange indeed. In such a case little value is gotten from keeping quite and it is of no value whatsoever to not present your evidence or to counter the claims of the employee. it is unclear as to why the employer did not present their evidence, perhaps believing that the claim could not be heard as technically the employee may have been under the laws of Lesotho in their role at the embassy, however no motion was put forward at the beginning of the hearing to this effect.
it si a very curious case, and one which has led to compensation of over €40,000 being awarded.
