A workplace relations hearing has accepted an administration worker’s allegation that she was slapped on the bottom and picked up by her boss but has rejected her claim for constructive dismissal.

In general, the Unfair Dismissals Acts, 1977 – 2016, provide that the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The purpose of the Acts is to protect employees from being unfairly dismissed from their employment by laying down criteria by which dismissals are to be judged unfair and by providing an adjudication system and redress for an employee whose dismissal has been found to be unfair.

Constructive dismissal arises where you terminate your contract of employment, with or without prior notice, due to the conduct of your employer. Your employer’s conduct, however, must have been such that it would have been reasonable for you to terminate your contract without giving notice.

In a constructive dismissal claim, the employee must demonstrate that they are justified in their decision and that they had no option but to terminate their contract. In order to be successful, the employee must utilise the employers internal grievance procedure to its full extent before finding themselves constructively dismissed. This therefore means that even where the employers’ behaviours may be seriously inappropriate, if the employee does not formally complain, there will be little chance of a successful claim from unfair (constructive) dismissal.

In this case, the employee lodged a complaint under Section 8 of the Unfair Dismissals Act against her employer, alleging she had been subjected to unacceptable behaviour by the company’s managing director and that her workload and duties became intolerable. Although a colleague of the woman gave evidence of witnessing the alleged incident, the managing director in question swore on oath that the allegation of inappropriate physical contact did not happen.

The employee resigned by phone on April 30th, 2020, four years after she started with the company, and lodged a complaint for Constructive Dismissal with the Workplace Relations Commission two months later.

Adjudication officer Joe Donnelly said he accepted the Ms Whelan’s allegations about being slapped and picked up by her boss, and said the evidence was that they happened around October 2019. However, he found that Ms Whelan had not used the company’s internal grievance procedure and failed to find evidence of her suggestion that it was not fit for purpose.

“Whilst there were aspects of the respondent’s behaviour that provided grounds for the complainant to believe it to be unreasonable, the action of the complainant in resigning without notice and not invoking the provisions of the Grievance Procedure was also unreasonable,” he wrote.

He ruled that Ms Whelan was not constructively dismissed.

The WRC has a detailed ‘code of practice on grievance and disciplinary procedure’ which employers and employees are recommended to know and follow to assist dealing with any such issues or claims.


NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff LLP, whose numbers can be found on our website www.nfg.ie, or email info@nfg.ie.