Constructive Dismissal

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There are various ways in which an employment relationship can end. The most common is resignation by the employee. The employer can also terminate the employment relationship and when this happens it is known as a ‘dismissal’. In certain circumstances, resignation by an employee will amount to a dismissal by the employer. This is known as a ‘constructive dismissal’. Constructive dismissal is a form of dismissal.

Common situations where a constructive dismissal may occur include:

The following are examples which may result in claims for constructive dismissal:

Example:
An employee is being bullied by her manager. Her manager regularly shouts at her and insists that she works late on short notice. The employee is beginning to feeling symptoms of work related stress including loss of appetite and insomnia and her doctor has diagnosed her with depression. She has raised the issue with her employer’s HR Manager who has simply brushed it off by saying the manager is ‘difficult’ and she should see her doctor about her feelings of stress. The employee feels that she has no option than to resign.

Example:
An employee is told that his performance is below standard. His manager suggests that he resigns otherwise he will be fired.

Example:
An employee has not been paid his weekly wages for three weeks. When he raises the matter with his manager, he is told that payment will be made by Friday. However, Friday comes and goes and payment has not been made. The employee resigns because he cannot afford to keep working without pay.

As set out above, a constructive dismissal is a resignation which, because of how the employer acted (or failed to act) is deemed to be a dismissal. The distinction between a resignation and a dismissal is important. Employees can only bring a personal grievance for unjustified dismissal if they have been dismissed. While constructive dismissal is a form of dismissal which may result in a finding of unjustified dismissal, claims for constructive dismissal can be difficult claims to bring. This is because the onus is on the employee to prove that the resignation was in fact a dismissal. For this reason, employees who are considering resigning in response to their employer’s treatment of them should promptly seek advice from a lawyer before resigning (if possible). 

If you are considering resigning or have resigned in response to your employer’s unfair treatment of you, contact us on (09) 214 5780. We can advise you on your claims, seek a negotiated severance for you and represent you in legal proceedings.

*Please call us today on (09) 214 5780. Provided we do have a conflict of interest and that there is no other reason why we could not act, we are happy to have initial 15 minute telephone consultation free of charge.

Disclaimer: The above information is for information purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on the information given.