Employment Update – Week 3, May

Updated: Jun 24, 2019

Our weekly update on ER issues, changes and important updates:

Cases of Interest

No constructive dismissal as employee already resigned

In a recent decision of the Employment Relations Authority, events taking place after a resignation was tendered were found unable to support a constructive dismissal claim. An employee sought to support a claim of constructive dismissal through alleging unjustified actions of the employer as having taken place both before she gave notice of her resignation and after she had given notice and while she was working her one-month notice period. The Authority did not accept that the employer had committed any unlawful actions towards the employee before she gave notice of resignation. However, in giving her notice of resignation to the Board Chairperson the employee raised allegations of bullying by her manager. In doing so, the employee provided detailed allegations relating to a specific incident. The actions of her manager were claimed to have contributed to the employee deciding to resign. The Chairperson emailed an acceptance of the resignation. The employee’s manager also emailed the employee and, having been provided a copy of her resignation, advised that since she and the employee have differing views of the events in question the matter should be left as it stands.

The Authority criticised the employer for making no attempt to arrange some investigation or reasonable assessment of the employee’s complaint despite the fact that there was still an employment relationship in place while the employee was working out her notice period. However, the Authority found that these failings could not have caused her to resign or support a constructive dismissal claim because they happened after she sent her letter of resignation. The employer’s failure to deal with the complaint properly was, however, found to amount to an unjustified disadvantage grievance and the employer was ordered to pay $5,000 in compensation to the employee.

Mediator-signed settlement agreements not as bullet proof as some might have thought

A number of attempts to set aside mediator-signed settlement agreements have been made in the Employment Relations Authority and Employment Court. None have been successful. However, in a recent decision the Chief Judge of the Employment Court came to the conclusion that mediator-signed settlement agreements are not unassailable.

In coming to that conclusion, the Court observed the limited extent of a mediator’s statutory obligations before signing such agreements:

[23] The Act confers no role on an approved mediator to provide legal advice, or to explain the substantive legal effect of any term that a party (however vulnerable) may have agreed to. Nor is there any requirement that a party (however vulnerable) obtain independent advice prior to entering into an agreement. Under the Act there are two mandatory steps that must be taken before a mediator can sign an employment settlement agreement – the mediator must explain the effect of s 149(3) (that the terms of the agreement are final and binding and enforceable) and the mediator must be satisfied that, knowing the effect of s 149(3), the parties affirm their agreement.