Posts Tagged worker

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.

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