Following the publication of the recent batch of employment appeal tribunal decisions this week, I thought I would use the opportunity to review three constructive dismissal claims that were heard, two which were successful and one unsuccessful. In a constructive dismissal situation, an employee leaves their job because they believe that they can no longer remain in their position, due to the actions of their employer. Unlike in ordinary dismissal sitations, the onus is on the employee to prove that they had no choice but to take this action and resign.

The first successful case involved a Night Club Manager being awarded 4,000 after he resigned over non payment of a bonus, which was outlined in his contract of employment. He claimed that he was not made aware that payment was linked to reaching targets and that records had been altered to his disadvantage. The Tribunal was satisfied that the non payment of the bonus constituted a fundamental breach of his contract, which allowed him to successfully claim constructive dismissal.
In the second successful case, a former block laying apprentice successfully claimed constructive dismissal and was awarded 27,000 after his employer tried to persuade him to convert to a self employed arrangement, in a procedurally unfair and unprofessional manner,which made his work conditions impossible.

Finally, a garage foreman was unable to prove that he had no choice but to resign after he claimed his manager had cut his hours without notice, was abusive to him when the car wash wasn’t working and had failed to roster him for work after he walked out. The manager claimed that he did not raise his voice and that it was necessary to have the car wash reset a number of times. He had also discussed with the foreman why it was necessary to reduce his hours and could not roster him as he believed he wasnt coming back.

In respect of the first case involving the non payment of the bonus, it shoud be noted that the wording of the employment contract did not clearly link the payment of the bonus to meeting targets and therefore, the employer did not have the right not to make payment. In respect of all variable or performance related payments, it is critical that employers clearly document payment condititions at the outset. In the High Court Case of Finnegan v J&E Davy’s, the plaintiff was successful in claiming that he had not agreed to the unilaterally imposed deferment of significant bonus payments, which the Company were not willing to pay if he went to work for another stockbroker. There were no written agreemnt to support the practice.

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