The employee has the lumber of proof to demonstrate that the company or employer had done something to cause the resignation. Determination the onus of proof in a constructive dismissal case rests with the Claimant, who must show the behavior of the employer justified his action in resigning. Background In the O’Gorman and Glen Tyre Company case, the Claimant who was suffering from Asperger Syndrome was employed as a mechanic by the respondent company from October 2006. The employee has to go on and prove that the dismissal was also unfair. 2 Constructive and Unfair Dismissal.An employee being constructively dismissed only proves that they were dismissed, it does not automatically prove that the dismissal was unfair. The burden is onerous.
The recent case of Daniel O’Gorman v Glen Tyre Company LimitedUD 2314/10 sent by the Employment Appeals Tribunal on 18th January 2013 demonstrates the high burden of proof a resigning employee must demonstrate in order to show that they have been constructively dismissed.Background the claimant was employed by the Respondent to carry out administration work and help outside on the farm. Now. The Claimant alleged that he had never been furnished with nor had he ever seen the relevant company policy. Mrs Dent had worked within the same company for many years. Did the company believe that the employee misconducted himself as alleged?
He received no contract and no warnings and was on sick leave from January 2010 due to work related stress. The complainant stated that the respondent would not allow him to return to work as he would not be able to return as lead driver and he also complained that his salary had been stopped on two January 2010.. Employee's position was not restored on return from stress leave. The Claimant subsequently went on sick leave on 19th May and was paid sick pay until August 2009. The respondent stated it did not have an obligation to continue to pay an employee while they are out on sick leave.
The respondent denied discriminating against the complainant and that the knee injury was subject to separate personal injury proceedings. Respondent was not made aware of any allegation of bullying or harassment until 20th March 2009 and again on 28th April 2009.The The check-out manager also attended. In March 2009 her employment status changed from full-time to part-time. In relation to the Claimant’s last day at work on 2nd December 2010, the Respondent had asked the Claimant to prepare a VAT statement.
He stated that he did not drink on the night in question. The respondent was unsure if he was on the premises on the Friday night in question. An incident occurred on Easter Friday night which led to the claimant’s dismissal on Friday morning 5th April. The Respondent stated that if she could not do her job then he would get someone else.
The Tribunal noted that they could find no evidence of a breach of the claimants contract. The Claimant alleged at thus point that none of the staff were speaking to her at this point and she felt totally isolated. Of course, each case will stand on its own evidence and will be decided based on that evidence. Determination. The Employment Appeals Tribunal in this case accepted the evidence of the respondent that the claimant was unapproachable.
There was no termination of employment involved. The Tribunal again looked the test for when a constructive dismissal arises and noted that “a constructive dismissal will occur when an employee terminates his Contract of Employment where. The Tribunal finds. With the Contractual/Entitlement test the tribunal will examine if the employee was entitled to terminate their employment if the employer was guilty of a breach of the heart of the employment contract. Such type of Termination happens in a circumstance wherein the worker gives up his particular position in a company resulting from gross conduct of his superior.
The Tribunal noted “The burden of proof, which is a very high one, lies with the claimant. The legal test to be applied is “an and or test”. She must show that her resignation was not voluntary. That is why it is important to have all paperwork, or proof, ready for court. The Employment Appeals Tribunal noted that the test to be applied as to whether the sanction was reasonable was as set out in the case of Noritake (Ireland) Limited v Kenna (UD88/1983) in which the EAT considered the matter in terms of three questions:1.. Therefore there was only one act in the series of events required for the 'last straw' principle, meaning it could not be applied here.