Constructive Dismissal - Worth it?

SwD · 02-08-2017 10:06PM #1

As far as I'm aware constructive dismissal cases have a very low rate of success, however one of my friends has just placed herself in an awkward position where this may be her only route to redress.

She works for company A, and is rostered in fortnightly.
She receives no rest periods, nor do any other employees.
She is rostered in Friday evenings until late, and rostered again for Saturday morning, absent of an 11 hour consecutive break.
Last week, due to other staff on holidays she was required to work more than 9 days in a row with no rest periods, of which two shifts were in excess of 12 hours.

The company has breached the terms of her contract which outlines that her working hours/rest periods will comply with the Organisation of Working Time Act 1997

Stressed, and suffering from mental fatigue she is out on sick leave and resigned, but in her resignation letter noted the reasons for her departure, outlined above.

I have recommended the Workplace Relations Commission, however I'm uncertain if they will accept her complaint given the fact that she has tendered her resignation. Is there any other options for her?

sdanseo · 02-08-2017 10:10PM

In a hypothetical situation whereby a person might find themselves in that position I'd imagine they would need to show attempts - documented if possible - to engage with the employer and rectify the problem.

The above sounds like the place is used to taking advantage, but that no one has stuck their neck out and complained loudly enough for them to bother fixing it.

Mr. Incognito · 03-08-2017 10:08AM

Constructive Dismissal has low success rates because;

1. You have to have exhausted the internal disciplinary process

2. The onus is on the employee to prove it. It every other scenario dismissal is presumed to be unfair. But for Constructive Dismissal the proof is reversed.

Being tired, getting badly treated for a short period, getting the huff and quiting wont meet this proof.

screamer · 03-08-2017 10:17AM

Your friend has no chance of winning a constructive dismissal case if She just resigned without addressing the issue with management or HR..... As Mr incognito stated you have to exhaust the internal process first.

There are rules about rest periods but you'll find that working hours is averaged over a rolling period of 3 months I believe so it's not excessive.

GM228 · 03-08-2017 10:28AM

Mr. Incognito wrote: »

Constructive Dismissal has low success rates because;

1. You have to have exhausted the internal disciplinary process

2. The onus is on the employee to prove it. It every other scenario dismissal is presumed to be unfair. But for Constructive Dismissal the proof is reversed.

Being tired, getting badly treated for a short period, getting the huff and quiting wont meet this proof.

+1.

It has been held in the past that the burden of proof is a "very high" burden of the employee as per the former EAT (now under the remit of the WRC), based on a Supreme Court decision.

For a successful outcome it is critical that you fully inform your employer of your complaint and give them the opportunity to resolve the problem first even if you know it is basically a waste of time.

SwD · 05-08-2017 06:28PM

Thanks everyone.

She's all set.

Constructive Dismissal - Worth it?

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