WRC Adjudicator emphasises the high bar that must be met by a Complainant in a constructive dismissal claim. He details the case law and applied both tests in his decision, finding that the evidence did not illustrate unreasonableness required on the part of the employer nor did it illustrate a breach of contract.

Facts: The Complainant was employed for almost a year as a Scientific Technical Development Analyst for the Respondent McDermott Laboratories Limited t/a Mylan (‘the Company’) when during a performance review meeting she was described as a ‘solid performer’ and a ‘role model’.   However, 2 weeks later the Respondent placed her on a PIP (Performance Improvement Plan).  The PIP was expected to last three months and the Complainant had some concerns about how it was being organised including technical issues which she believed were unfair to her.  The PIP was unsuccessful and the Complainant then took a period of Stress Related Sick Leave.   The Respondent engaged with her through their Occupational Health and HR departments during this time and decided to place her on a further 6-week PIP, commencing on 23rd July 2020.   The Complainant felt that she was being set up to fail and tendered her resignation on 31st July 2020.

The Complainant brought a claim of constructive dismissal. Over a two-day hearing, she argued that as per Berber v Dunnes Stores, a cumulative series of actions had amounted to unreasonable conduct on behalf of the Respondent such that she had no choice but to resign and/or in the alternative the employment contract had been broken due to a breach of mutual trust and confidence and it was reasonable for her to consider herself as having been dismissed.

The Complainant argued that she was never given a reason for a successful performer being put on a PIP, and argued that with such high levels of stress in a scientific environment where accuracy was paramount, she was set up to fail.  Further, she had raised complaints about the way in which some of the routines/ methodologies in the lab were carried out and these concerns had never been addressed.

The Respondent gave evidence that they had noticed issues with her performance towards the end of 2019 and that the Complainant herself had noted feeling overwhelmed with the workload.   They had placed her on a PIP as a ‘problem solving’ approach in order to help her achieve at the standard she had been earlier in the year.  They gave evidence that the Company did not initiate disciplinary procedures as in other cases PIPs had been implemented with excellent outcomes.

Decision: Rejecting the Complainant’s claim for constructive dismissal the Adjudicator applied the two limbed test set out in the UK case of Western Excavating (ECC) Ltd v Sharp and endorsed by the Labour Court in Paris Bakery & Pastry Limited v Mrzljak.   The conduct of the employer must be so unreasonable that it allows its employee to conclude ‘it no longer intends to be bound by the contract of employment.’.   He went on to refer to Berber v Dunnes Stores stating that the conduct of the employer must be ‘without proper cause’ and ‘its effect must be determined objectively, reasonably and sensibly’.  The Berber case firmly puts the burden of proof of on the Complainant.

In rejecting the Complainant’s arguments, the Adjudicator gave particular weight to the Employer’s conduct:

Next, the adjudicator turned to the matter of the lack of internal procedures being invoked by the Complainant. He cited Harrold v St Michael’s House which states that the unfair dismissal and constructive dismissal somewhat mirror each other.  Just as an employer must follow procedure in dismissing an employee so too should an employee in resigning.  In this case the employee had not followed the internal procedures before resigning.

The Adjudicator found that the Respondent’s behaviour was not unreasonable and that the Complainant’s claim should fail.

Take away for Employers: When an employee is not performing as expected, engagement by the employer that is supportive and proportionate will be given significant weight by an Adjudicator in defeating any claim for unfair dismissal.   Further, detailed minutes that can evidence regular meetings that show equality of engagement between the parties during a PIP process will be invaluable.

Link  – https://www.workplacerelations.ie/en/cases/2022/february/adj-00030750.html

Authors – Nicola MacCarthy and Anne O’Connell