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Kettles, COVID and Conflict: WRC considers 'Constructive Dismissal' Claim

This week we look at a recent Workplace Relations Commission (WRC) case in which the Adjudication Officer was required to consider the law on constructive dismissal in the context of an employee's resignation due to his fears for his own safety. Our Adrian Twomey highlights the key points to note in the case of O'Brien v ECSC Limited t/a Enniscorthy Community Services, ADJ-00041456.

The Complainant, Mr. Thomas O'Brien, was employed by Enniscorthy Community Services Council. He worked in the employer's information office and also helped with the provision of meals on wheels as part of his duties. Mr. O'Brien appears to have given evidence about the following issues that were of concern to him:

  • he claimed that he was worried about COVID-19 in circumstances where the building in which he worked was poorly ventilated and there was no hot water available other than by means of boiling a kettle.

  • he alleged that his manager had shouted at him through the wall of her office on one occasion.

  • he stated that he had been overpaid in January 2022 and that his manager was abrupt when he raised the issue with her.

Mr. O'Brien handed in his notice in April or May of 2022 because, he said, he did not feel safe. His concerns in relation to his safety appeared to relate primarily to the COVID-19 issue. He gave evidence that he had not found another job and was dependant on social welfare payments. He then filed a claim for constructive dismissal with the WRC.

The Complainant's manager gave evidence in response. She appears to have satisfied the Adjudication Officer that all COVID-related guidelines were being followed. She also appears to have contradicted the Complainant's evidence regarding the alleged shouting and informed the Adjudication Officer that the Complainant had never raised a grievance.

The Adjudication Officer concluded that the Complainant's:

"... decision to leave his employment had very little to do with the poor ventilation in the building or the lack of hot water. He worked there for the vast majority of the pandemic and didn’t really make much of an issue about it. The Respondent on the other hand did everything they were obligated to do, to protect their employees. They provided screens, masks and hand sanitisers. They also placed restrictions on members of the public entering the building without first being invited to by a member of staff."

She noted that in constructive dismissal cases the burden of proof is on the Complainant. She added that Complainants must either prove that their employer has been guilty of a "significant breach" going to the root of the employment contract or that the employer has conducted their affairs so unreasonably that the employee cannot be expected to put up with it any longer. She also noted that:

"... there is a general obligation on the employee to exhaust the Company’s internal grievance procedures...."

The Adjudication Officer concluded that the Complainant had "made no efforts" to raise a grievance in relation to any of his issues:

"He did have general conversations about his concerns but never said that he wanted to raise a grievance and never asked how he might do that."

On that basis, Mr. O'Brien's claim was dismissed.

This case is unlikely to make the newspaper headlines because the employee lost and there was no award of compensation. The facts of the case, however, are a clear reminder to employees that they should not rush to resign without first giving their employers a fair and reasonable opportunity to address their grievances.

Those who require advice in relation to employment law cases or who need representation before the WRC or Labour Court can contact our Adrian Twomey.


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