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Excerpt from this article first published in Human Resources Magazine, Issue 144 - 22 January 2008
Mr Manton was employed by the Belgian Beer Café as a Restaurant Manager/ Duty Manager. He alleged that after returning from a period of annual leave other employees were performing some of his duties; he was performing different duties; he was no longer managing in any capacity; and he was informed that he was demoted.
On the basis of the above, the employee determined that his employer had constructively dismissed him by altering his duties unilaterally and significantly and that those changes amounted to a repudiation of his contract which he accepted by resigning. The employee then brought an application before the AIRC alleging he was constructively dismissed.
The employer argued that it did not dismiss the employee; the employee resigned from his employment; it did not informed the employee that he was demoted; it did not alter the status, duties, remuneration, role or hours or give his tasks to other employees; and it did not hire other employees to replace the employee, but asserted that it required him to train other staff as part of his management role.
In order to determine whether the employee was constructively dismissed, the AIRC was required to consider whether the employee voluntarily resigned or whether the termination of employment was brought about by the actions of the employer in allegedly significantly altering the employee’s duties or salary.
The AIRC ultimately agreed with the employer that there was no demotion and therefore no constructive dismissal as it found that there had been no significant reduction in the duties of the employee; no reduction in his salary; and the employer had not employed other staff to assume the employee’s role. Accordingly, the AIRC dismissed the case as there was no termination of employment at the initiative of the employer.
Employers should draft contracts and positions descriptions with sufficient breadth to minimise arguments that a change or addition to duties changes the role.
Employers should seek advice if they are uncertain as to whether an alteration in the duties of an employee is significant enough to trigger a claim for constructive dismissal.
Beth-Marie Kitchener, Solicitor
