Constructive Dismissal Burden Of Proof

Constructive Dismissal-The Responsibility of Evidence on the Worker is a Heavy One

Constructive dismissal cases are difficult to win since the load of proof is really on the worker to prove that she really had no other alternative except to resign due to the unreasonableness of the employer.

The January, 2013 decision of the Employment Appeals Tribunal in case of Daniel O’Gorman v Glen Tyre Company Limited illustrates this.

In this case Mr. O’Gorman was an automobile mechanic who had gone on sick leave in May, 2010 and did not return to work. He re-signed from his position in September, 2010.

Mr. O’Gorman brought a case for constructive dismissal.
Decision of EAT

The Work Appeals Tribunal in its decision referred to the burden of proof about the worker a ‘really high one’. It held that the worker must establish that his resignation wasn’t voluntary.

The EAT must examine the contract and decide whether there is a critical breach of the work contract likely to the root of the contract.

If there has not been a breach by the employer the EAT will then look at the actions of the employer and worker and decide in the ‘reasonableness’ of the decision of the worker to resign.

The claim by the claimant for constructive dismissal fell under three headings:

The extreme workload placed on him
Exclusion in the workplace, for instance at lunch rests
Being intimidated and harassed at work.

Mr. O’Gorman suffered from Asperger Syndrome.

Mr. O’Gorman left work in May, 2010 and did not return due because of, according to his parents and GP who stated it was work related. Nevertheless, the employer stated that he did not understand this until he obtained the 2nd medical certification

The EAT held that it is critical in a constructive dismissal case that the worker completely notifies the employer of the complaints being made against him and gives the employer the possibility to resolve the difficulties.

Interestingly, the EAT in this held that the parents of the claimant had a responsibility to allow employer know of the issues.

The EAT found no significant breach of contract going to the root of the contract which may have prevented the worker from carrying out his obligations in accordance with the contract.

The Advisory Service encourages good practice at work by helping and guiding organisations in all facets of industrial relationships at work. It engages with companies, workers and their representatives to help them to develop successful industrial relations processes, practices and arrangements. Such support could include reviewing or developing successful workplace processes in areas like subject, grievance, communications and consult.

It eases combined direction-staff newsgroups to work through problems of common concern; like workplace change or tough industrial relations problems.

It supplies great practice coaching workshops on an assortment of facets of the work relationship for instance, procedure of workplace processes and, via a procedure, can help organisations to execute them. In inclusion, the Advisory Support commissions and publishes analysis on present industrial relationships topics. A procedure is also facilitated by the Advisory Service to help management and worker representatives to resolve differences of opinion in scenarios where negotiating arrangements are not in place and where collective bargaining fails to take place.

Members of the Advisory Support team are unbiased, independent and seasoned in industrial relations hypothesis and practice. In discourse with the parties concerned, assistance will be tailored by a designated member of the Advisory team to meet the necessities of individual organisations or businesses, whether big or small. This aid is private to the parties and is supplied free of charge.

, ,

Comments are closed.