No resignation, no constructive dismissal: Veselji v St Andrew's Football Club

A claim of constructive dismissal starts with a resignation. In Veselji, the Court of Appeal held that a football coach who stopped turning up when a new head coach arrived had neither been dismissed nor resigned, so his argument that he had been forced out could not succeed.

Facts

In October 2016 St Andrew’s Football Club engaged Veselji as a full-time coach with its senior team, in practice as assistant to the head coach, on a 32-month fixed-term contract. The contract required him to obtain his coaching licence at the earliest opportunity.

In summer 2017 the head coach left. Because Veselji had no licence from the national association, the club engaged a new head coach, who brought his own assistant. The club said Veselji then simply stopped attending, and that it had offered him other work on similar pay until he obtained his licence. Veselji said he had been told his role was no longer needed, and denied that any alternative was offered.

He sued for unpaid wages and for half the wages for the rest of his fixed term, the sum the law gives an employee when the employer ends a fixed-term contract early. The Civil Court, First Hall found that no dismissal had been proved: no termination had been communicated and no termination notice issued. It awarded only unpaid wages for two months.

The appeal

On appeal Veselji argued, among other things, that he had been constructively dismissed. The Court noted that the allegation had appeared neither in his sworn application nor in his written submissions.

It set out what constructive dismissal requires: circumstances in which the employee is compelled to resign because of the employer’s breach of the employment contract. It adopted three elements from an Industrial Tribunal decision the appellant himself relied on, Bonello v OZO Services: a clear breach by the employer, express or implied; a breach serious enough to justify resigning; and a resignation in fact caused by that conduct. It also quoted an English textbook on the risk that delay, or carrying on without making clear that one does not agree, may be read as accepting a change.

The decisive point was simpler. On the evidence, there had been neither a termination by the club nor a resignation by the coach. He had never sent a resignation, and so could not argue that he had resigned because his back was against the wall. Nor had he tried to negotiate with the club; he chose to stop abruptly and not show up any more.

The appeal was dismissed, save for a small correction to the arrears, which the Court fixed at €3,500. He recovered nothing for the rest of his fixed term, and was ordered to pay the costs of the appeal.

Significance

The case was a civil claim on a fixed-term contract rather than a referral to the Industrial Tribunal, but its lesson applies to both. An employee who believes they are being pushed out has to act: object, engage, and if it comes to it, resign clearly and say why. Walking away in silence risks leaving no legal event at all. On a fixed-term contract the stakes are higher still, since half the pay for the rest of the term depends on proving that the employer ended it.

Related: Constructive dismissal in Malta · Bonello v OZO Services · Notice and exit terms · Charichelon v Greaves