okay in this video I want to take a look at constructive dismissal and ten things
that you should know about constructive dismissal in Irish law firstly number
one what is constructive dismissal it's where the employee leaves the job
in other words the employee terminates the contract of employment due to the
conduct of the employer it doesn't matter whether the employee gives notice
or not and it's one of the most common claims by employees against employers
however it is a difficult claim to win the burden of proof is a big factor in
the constructive dismissal claim the constructive dismissal claim means that
the burden of proof is on the employee so the employee has the probative burden
and must prove that he or she had no choice but to leave the employment due
to the conduct of the employer and that it was a reasonable thing to do unlike
in an unfair dismissal case where the employer must prove that dismissal is
fair just to be clear on that if the employer dismisses an employee
the burden of proof is with the employer and he must prove that it was a fair
dismissal however if the employee leaves he must
prove that he had no choice but to leave so he has the burden of proof the third
thing is we look at some examples of constructive dismissal these situations
may give rise to a successful claim however they are not a definitive list
or a determinative list or anything of that nature but they do give some
indication a unilateral reduction in pay for example if your pay was cut by 50%
or 30% or 25% you probably would have a decent case for unfair or for
constructive dismissal however if your pay is only reduced by say 2 or 3
percent and there was some rational basis for that in other words to save
jobs or something then you may not have so it will depend on the circumstances a
unilateral change in job function a change at work location with our
agreement a bad or toxic work environment these
have all led successful constructive dismissal
claimants but each case will stand or fall on its own particular circumstances
you need to be aware of that other cases which give rise to success or claims
change in work hours without agreement the conduct of fellow employees if
you're a victim of for example sexual harassment or any harassment and the
employer doesn't do anything you could be justified in leaving the job of
bringing a claim and undeserved disciplinary warnings it may also give
rise as I said already this list is not exhaustive it's not definitive and your
case will succeed or fall on its own particular facts and circumstances in
relation to remedies compensation is possible of up to two years salary
however it's extremely unlikely I have to warn you of that it's a financial
loss that is possible by way of an award and that's as per the unfair dismissal
Act of 1977 you must mitigate your loss that means
you must try and get a job you can't just sit on your behind and not bother
getting a job or trying to mitigate your loss and letting the losses rack up you
can't do that you're suppose that we try to get a job other remedies for an
unfair dismissal or constructive dismissal it would also be reinstatement
or re-engagement however reinstatement re-engagement would be less likely in a
constructive dismissal situation because by definition you've left the job
yourself due to the conduct of the employer why
would you want to be reinstated or reengaged having said that it is
possible that's whatever the issue was may have been remedied and things may be
changed significantly and you may be happy to go back and be reengaged
or reinstated in your job just in relation to financial losses your
financial losses your loss of earnings between leaving the job and getting a
new one so this could be a very short period of time it could be a long period
of time if it's only a short period of time for example a week or two weeks or
three weeks then the maximum that's possible which can be awarded to you is
one month's salary so that's a sort of a nominal recognition that you've won your
claim but you can only get a month's salary therefore you need to consider
whether it's gonna be worth your while bringing the claim or not because you
will have legal costs obviously however if you are in a job for three months or
six months or 12 months well then your financial loss is going to be three
months or six months or 12 months in which case it's a much more significant
amount of money and clearly it may well be worth your while bringing a
claim number five the requirements for a claim you need at least 12 months
continuous service in the employment you must bring your claim within six months
of quitting the job this can be extended to 12 months if you can show reasonable
cause reasonable cause is basically down to the reason as to why you didn't bring
it within six months and that's a matter for the adjudicator as to whether to
accept your reasonable cause or not I very very strongly recommend you must
exhaust all the internal procedures first including I will suggest the
appeals procedure after that then you may be able to bring a claim for
constructive dismissal but without going through internal procedures you may be
premature bringing your claim you need to bring your claim to the workplace
relations commission that's the WRC you fill out the online WRC form and you
tick the unfair dismissal options box and you set out exactly when you started
when you finished and why you had to leave the test for successful claim
broadly there's two tests that have been applied by the Employment Appeals
Tribunal and now by the labor court and by the the workplace relations
commission and they would be the contract test and the conduct test the
contract test looks at whether there was a breach of the contract of employment
by the employer and the conduct test looks at the conduct of both parties in
other words how reasonable or unreasonable was the conduct of both
employer and employee these are two tests that you need to look at your case
through and see whether your case your claim stands up or not as I said
generally these tests have been used in deciding constructive dismissal claims
no. 8 a word of warning it's difficult to win because the employee has the
burden of proof not the employer the employee has it you must prove that the
conduct was so bad he'd no choice but to leave it's much easier for the employee
if the employer has dismissed as the employer then has the burden of proof
and must prove that the dismissal was fair and that he or she had substantial
grounds for dismissing you number nine I would recommend that you get
professional advice before quitting and I mean before quitting because you do not
want to discover you have no case after you've quit your job number 10 the legal
definition of unfair or constructive dismissal is set out in the
unfair dismissals act 1977 you see there from the screen that actually makes
reference to the conduct of the employer and it also makes reference to whether
it would have been reasonable for the employee the employee to terminate the
contract so that's the reasonableness test and the conduct test and then
there's the breach of contract test as well hope you find this video useful if
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