Breach of trust and confidence

Can be a two way affair

When breach of trust and confidence arises, it usually leads to dismissal, either fair or constructive and therefore unfair.

When we examine the caselaw dealing with this topic in Irish employment law one thing is clear, the circumstances leading to the breach are seldom straightforward.

There is an implied term in every contract of employment that requires both employers and employees to refrain from behaving in such a way as to destroy the relationship of trust and confidence which is essential to the working relationship.

This term can be breached by either employer or employee.

For an employer to rely on it, the reason for dismissal must be serious and substantial. If the real reason is something less than this,underperformance for example, then the employer should deal with it. A question every employer should ask when it comes to considerng the use of the breakdown in the relationship between employer and employee as a reason to dismiss the employee is; what has caused the loss of trust? The next question to be answered is; is that reason sufficiently serious and substantial to justify a termination of employment.

The issue is considered in the case of Brendan O’Callaghan v Dunnes Stores UD 54/2012, MN 25/2012, WT 14/2012.

The Tribunal concluded that the sanction of dismissal was fair and noted:

“Trust and confidence are essential elements in the employment relationship and a particularly high level of trust and confidence is reposed in a manager. Breaching sales and refunds procedure is serious/gross misconduct but instructing subordinates to engage in fraudulent transactions and compromise their trustworthiness is even more serious“.

In a decision of the Employment Appeals Tribunal (An Employee v An Employer) UD842/2011, the Claimant successfully claimed constructive dismissal and was awarded €23,826.

The Tribunal was satisfied that the Claimant was entitled not to return to work when the Respondent offered to reinstate her in a letter dated 15th December 2010 and that the cumulative effects of the Respondent’s actions in the preceding year had resulted in a complete breakdown of trust and confidence on the part of the Claimant in the Respondent.

The claimant was awarded €23,826 under the Unfair Dismissal Acts 1977 (as amended) and two weeks pay under the Minimum Notice and Terms of Employment Acts 1973 to 2005.

It is evident from these two cases that you should take great care when looking at the breakdown of trust as a reason for dismissal.

You should seek independent advice from an experienced expert in this field. You may have a blind spot and miss something which could later cause you to lose an unfair dismissal hearing.

If you are an employee who has been dismissed a result of the breakdown in trust and confidence, then you should take advice on whether the employer was justified in taking that serious action and whether they followed the correct disciplinary procedure.

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