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No Constructive Dismissal in Case of Alleged Bullying Where Employee Refused Mediation

The Labour Court has found that there was no constructive dismissal in the case of an employee who declined his employer's offer of third-party mediation and chose instead to resign from his employment (Winthrop Engineering & Contracting Limited v Donagher, Labour Court, Determination No. UDD218, 25 January 2021).

The employee in question (Mr. Donagher) was an electrical supervisor who commenced employment in November 2016. In July and November 2017 he made allegations of bullying and harassment against his line manager. He complained that he was experiencing "stress and grief" due to the manner in which his manager was speaking to him and alleged that his mental health was suffering.

Mediation conference

The employer did address the complaints, both informally and by means of a subsequent formal investigation. The investigation report of 24 November 2017 appears to have concluded that there was no evidence of "repeated inappropriate behaviour" by the manager. Mr. Donagher did not appeal against the outcome of the investigation.

The Complainant was absent on sick leave for most of the remaining period of his employment. He retained the services of HR consultants who wrote to the company on his behalf in early December 2017. The company's solicitors responded. In mid-December, the employer offered Mr. Donagher the opportunity to engage in a mediation process with an independent third-party. He declined that offer and resigned on 4 January 2018, stating that he had been disappointed with the "level" of the investigation, that all trust had broken down and that he could not return "for the sake of" his health.

The employee sued the company for constructive dismissal under the Unfair Dismissals Acts 1977 to 2015. His claim was unsuccessful at the Workplace Relations Commission. He appealed to the Labour Court. The matter was heard on 15 December 2020 with a decision being issued on 25 January 2021.

The Labour Court noted that the "Complainant did not agree with the findings [of the investigation] but inexplicably did not avail himself of the opportunity to move to the internal appeal stage." It also stated that "the Respondent’s bona fides vis-à-vis the Complainant is further manifested in the offer of independent mediation it communicated to him on 14 December 2017. Again, the Complainant was unable to offer the Court any convincing explanation as to why he was unwilling to engage in that process with an independent facilitator." Having noted those factors, the Court found that:

"It has been well established in the case law that a complainant in a constructive unfair dismissal case bears a high burden of proof in order to establish that it was reasonable for him or her to resign their employment and regard themselves as constructively dismissed in response to an objectively perceived deficiency in their employer’s dealings with them. For the reasons referred to the preceding paragraph, the Court finds that the Complainant in this case has not succeeded in overcoming that high burden. The appeal, therefore, fails and the decision of the Adjudication Officer is upheld."

The Court's account of the facts does not suggest that it was particularly impressed with the employee's account of the alleged bullying. However, it is important to note that the decisive factors in the case appear to have been (a) the employee's failure to avail of the option of an internal appeal against the outcome of the investigation and (b) his refusal to accept the offer of mediation. Those factors are worth bearing in mind for HR and employee relations professionals.

For advice and assistance in relation to employment law-related matters please contact our Employment Law team led by Adrian Twomey, Partner.


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