WRC Rejects Cleaner’s Constructive Dismissal Claim – Why Framing the Right Claim Matters

A recent case before the Workplace Relations Commission (WRC) (ADJ-00053552) highlights how employees can weaken their own claims by focusing on the wrong legal arguments. In this case, Ms. Anita Swan, a cleaner employed by Office and Industrial Cleaning Ltd, alleged constructive dismissal but failed to meet the high legal standard required.

While her case was dismissed, a different legal approach—such as a penalisation claim—could have shifted the burden of proof onto the employer, forcing them to justify their actions. This case underscores why seeking expert Employee Relations advice before taking action is crucial.

Background: What Happened?

Ms. Swan was employed as a cleaner, working at a supermarket headquarters. On August 22, 2023, while covering a late shift, she was assaulted by a security guard on-site. She reported the incident, pursued a criminal complaint, and took a stress-related leave of absence.

When she returned to work in September 2023, tensions arose between her and her supervisor, eventually leading to:

• A verbal warning for inappropriate behavior on-site.
• A disciplinary process that escalated after she submitted a screenshot containing an offensive nickname for an HR manager saved in her phone.
• A refusal by the employer to allow her legal representative to attend her appeal hearing.

Believing she had no alternative but to resign, Ms. Swan filed a constructive dismissal complaint against her employer.

Why Ms. Swan's Constructive Dismissal Claim Failed

Under Irish employment law, the burden of proof in constructive dismissal cases rests entirely on the employee. To succeed, an employee must show that:

✅ The employer's actions made their continued employment intolerable.
✅ They exhausted all internal grievance procedures before resigning.

The WRC ruled that Ms. Swan failed to meet this high bar due to the following:

1️⃣ Failure to Use Internal Processes – She did not fully engage with the company's grievance procedures before resigning.
2️⃣ Lack of a Hostile Work Environment – There was no conclusive evidence that her working conditions were so intolerable that she had no reasonable option but to leave.
3️⃣ Disciplinary Issues Weakened Her Case – Her prior warning and inappropriate conduct (saved HR contact name, workplace tensions) undermined her claim that the employer forced her out.
4️⃣ Mutual Grievances with Supervisor – Both she and her supervisor lodged complaints against each other, and the employer had begun an internal process.
5️⃣ No Fundamental Employer Breach – The WRC found that, while there were workplace disputes, the employer had not fundamentally broken the contract in a way that would justify constructive dismissal.

The Lesson?

A constructive dismissal claim requires an exceptionally high standard of proof. Employees often resign too soon and then struggle to prove that their employer had left them no choice.

A Stronger Case? Why a Penalisation Claim Could Have Worked

Instead of constructive dismissal, Ms. Swan may have had a stronger case under penalisation laws (e.g., the Protected Disclosures Act or the Safety, Health, and Welfare at Work Act).

If framed as penalisation for reporting the assault, the burden of proof would have shifted to the employer, forcing them to prove that their actions were not retaliatory.

Why Penalisation Could Have Been a Stronger Legal Argument:

✔ The link between the assault and employer actions – If disciplinary measures escalated only after she raised a complaint about the assault, this could suggest employer retaliation.
✔ Suspicious timing of disciplinary actions – Warnings and investigations only occurred after her return from stress leave. This sequence could have supported a penalisation argument.
✔ Employer's burden of proof – In a penalisation claim, once a causal link has been established between the employee's protected action and the adverse treatment, the employer—not the employee—must prove that their actions were unrelated to her complaint.
✔ Potential targeting – If there were other incidents (e.g., surveillance, excessive scrutiny, or sudden disciplinary actions), these could have supported a penalisation claim.
✔ Less Need to Engage in Internal Processes – Unlike constructive dismissal, where an employee must prove they exhausted all options before resigning, a penalisation claim does not always require engaging in the employer's internal grievance process.

• Penalisation claims stand alone and focus on whether the employer retaliated, rather than whether the employee could have remained in the job.
• Engaging with internal processes can sometimes work against the employee, as HR may use them as a delaying tactic or a way to shift focus onto the employee's conduct instead of the original complaint.
• Many penalisation claims under Protected Disclosures and Safety, Health, and Welfare legislation can be filed directly with the WRC without exhausting internal avenues.

Had Ms. Swan pursued a penalisation complaint, the employer would have had to justify all actions taken against her after she reported the assault—an uphill battle for them.

Final Thoughts: The Right Strategy Can Make or Break Your Case

This case shows that filing the wrong complaint can lead to an avoidable legal loss. While Ms. Swan's constructive dismissal claim failed, an alternative penalisation claim could have shifted the legal advantage to her.

Key Takeaways:

🔹 Constructive dismissal is difficult to prove – Most claims fail due to the high burden of proof on employees.
🔹 Penalisation claims shift the burden to the employer, making them defend their actions.
🔹 Timing matters – If disciplinary actions follow a workplace complaint, it may indicate retaliation.
🔹 Seeking expert advice early can make all the difference.
🔹 The right legal approach increases your chance of success.

If you're dealing with a workplace dispute, you need the right strategy from the start. Don't let your employer control the process. WorkplaceDisputes.ie can help you frame the strongest possible complaint.

📞 Contact us today for expert advice and ensure you pursue the right case with the best chance of success.

Disclaimer:

This article provides general information and should not be considered legal advice. Every workplace dispute is different, and outcomes depend on specific circumstances. If you are facing a workplace issue, we strongly recommend seeking professional guidance, such as from a WorkplaceDisputes.ie advisor, before making any decisions.