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Excerpt from this article first published in Human Resources Magazine, Issue 135 - 21 August 2007
Keith Donnelly resigned his employment with DB Madgwick on 23 March 2007 because his employer told him his overtime would be reduced. Mr Donnelly told his employer that he could not afford to work for “anything less than what I’m getting now.”
DB Madgwick bought and sold used cars. It employed Mr Donnelly as a full time mechanic to repair the cars before they were put up for sale. The amount of work required of Mr Donnelly varied according to the number of vehicles bought and sold and the quality of those vehicles. The overtime was reduced because the employer’s volume decreased.
On 3 April 2007, Mr Madgwick provided Mr Donnelly with a reference that stated that Mr Donnelly left of his own accord. Mr Donnelly claimed that he had a verbal arrangement with Mr Madgwick that he would be provided with 20 hours of overtime each week which was later reduced to 14 hours per week. Mr Madgwick denied that there was any such arrangement. Mr Donnelly claimed that because his overtime was reduced without his consent he was forced to resign and that in effect he had been constructively dismissed.
Section 643(1)(a) of the Workplace Relations Act 1996 says: “for the purposes of this Division, the resignation of an employee is taken to constitute the termination of the employment of that employee at the initiative of the employer if the employee can prove, on the balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of conduct or a course of conduct, engaged in by the employer.”
Relying on a number of previously decided cases the Commission observed that for a constructive dismissal to be established it must be shown that the employer embarked on a course of conduct that would leave the employee with no option but to resign. The Commission found no such course of conduct and rejected Mr Donnelly’s application. There had been no termination of Mr Donnelly’s employment at the initiative of his employer. The Commission has no jurisdiction to hear Mr Donnelly’s case.
An employee who resigns may claim to have been constructively dismissed. Employers are advised to retain any written resignation of an employee or to write down what was said by the employee if he or she resigned verbally.
If the employee makes a complaint that indicates that he or she is not resigning voluntarily, the employer should seek legal advice.
Gordon Jervis
Senior Associate
