When things go wrong in the workplace

WITH unemployment nationally running at 14.6 per cent, it is difficult to imagine anyone choosing to leave paid employment at the moment.

However, when an employee suffers an unacceptable deterioration in their working conditions, they can often find themselves with little alternative but to terminate their own contract of employment and resign. This article will outline the basics any employee should know when they find themselves in such a position.

While workplace conditions naturally change and evolve over time, now more than ever employers find themselves reorganising workplace practices in the hope of making their employees more productive. While to do so is legal, the law does draw a line which the employer cannot cross. This line comes in the form of the Unfair Dismissals Acts 1977-2007.

Under the Acts, when employees find that either their working conditions have significantly deteriorated or that their employer's behaviour has become so unreasonable that they have no choice but to resign, they may have a claim for constructive dismissal.

To be successful in such a claim, the employee will have to satisfy one of two possible tests, either the 'contract test' or the 'reasonableness test'.

Under the contract test, the employee will have to show that his resignation was directly due to a failure of the employer to honour their side of the employment contract. Previous examples include an employer paying employees with cheques which frequently bounced, a reduction in prescribed working hours and even the failure of an employer to take reasonable steps to prevent bullying in the workplace.

Alternatively, under the reasonableness test, the employee will have to show that while the actions of the employer did not breach the terms of the employment contract, they were nevertheless so unreasonable that they justified the resignation of the employee. This test often comes into play when employees are told that they should resign or face being dismissed. It is also used in situations such as when an employer sticks resolutely to a policy of not reconsidering letters of resignation and was even used when an employer failed to take reasonable steps to accommodate a worker who developed special needs during the course of their employment.

Under constructive dismissal, it is for the employee to prove that their resignation was justified in the circumstances. This would involve the employee showing that they had first brought their grievance to the attention of their employer and subsequently exhausted all dispute resolution mechanisms within the company, without success. In essence, the employee must be able to show that after doing what they could, they did what they must.

* Thomas Nelan B.C.L., B.B.S., is an Attorney-at-Law with Mannix & Company, Solicitors, No. 12 Castle Street, Tralee and No.3 Church Street, Castleisland. www.mannixj.com. T: 066 7125011. E: tnelan@mannixj.com

This column is intended for general guidance on current issues in the law. It is not a substitute for legal advice tailored to your specific circumstances and should not be relied upon as such.


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