Thinking you might have been a victim of constructive dismissal? Our Constructive Dismissal NZ employment law specialists are here to help. Also known as constructive termination, constructive dismissal is a claim of wrongful termination.
Constructive dismissal occurs when an employer finds ways to force an employee to resign by making their working condition unbearable or illegal instead of firing them.
This article will cover more about constructive dismissal, its causes and consequences.
WHAT IS CONSTRUCTIVE DISMISSAL NZ?
Constructive dismissal is a situation in which the employer commits a serious breach of contract, or substantial change to the essential contract of employment, forcing the employee to resign in response to the employer’s actions.
In most cases, an employee quits because the working conditions have become so intolerable that they can no longer stand to work for the employer. Although the employee voluntarily quits due to the circumstances, the employee was put in a position where they had no other choice.
When it comes to the employee’s resignation, it is overlooked for legal purposes because the relationship was, in effect, terminated involuntarily by the employer’s behaviour. In these situations, the resignation is treated as a firing.
How to proceed when faced with forced resignation & constructive dismissal?
If the actions of the employer constitute unlawful behaviour or a breach of employment contract, the employee may then have a claim for wrongful constructive dismissal.
When it comes to a breach of contract, it may not be just one incident that causes it. Often, there is a pattern of behaviour or incidents that, when taken as a whole, amount to a breach of employment contract.
If the case involves a pattern of behaviours, the “final straw” for the employee that leads them to resign must be related back to previous acts of misconduct. When all the acts add together, there is a strong case for wrongful or constructive dismissal.
Constructive Dismissal Relocation, Stress, Harassment and other Examples of Forced Resignation Claims
Below are examples of breaches of contract that can entitle an employee to make a claim, drawn from constructive dismissal case law precedents. There is a wide range of contract breaches and they can vary from industry to industry.
Signs of Constructive Dismissal:
Constructive Dismissal Change of Role: When an employer significantly reduces the salary of an employee or threatens to do so.
When an employee is demoted from their position for no apparent reason.
Constructive dismissal stress: Unfounded claims of poor employee performance.
Constructive Dismissal Relocation: When an employer forces relocation to another office.
When an employer reports the employee to a supervisor without any foundation or without allowing the employee to respond.
When disciplinary actions are taken and manifested unreasonably.
Constructive Dismissal Change of Duties: When an employer makes a complete change in the nature of the employee’s job without warning.
Constructive Dismissal Harassment: When an employer bullies or harasses an employee.
Constructive Dismissal Disability Breach: When an employer fails to make the necessary adjustments to accommodate an employees’ disability.
Excessive Workload Constructive Dismissal: When an employer forces an employee to work under situations that breach health and safety laws.
Making a Forced Resignation Claim | Constructive Dismissal NZ
To successfully make a constructive dismissal claim against an employer, you need to prove that the employer fundamentally acted in a way that caused your position to be untenable and that there was a breach in your employment contract.
”How do I prove constructive dismissal?”
The onus rests on the employee to prove the breach of duty. What is clear is that it must be a sufficiently significant breach for an employee to essentially cancel an employment agreement.
The Employee must, where practical, put the employer on notice that unless it agrees to remedy the breach, the employee will have no option but to resign in protest.
In most cases, the behaviour that amounts to a breach by an employer is obvious and there is a good cause for the employee’s constructive dismissal claim. However, in some situations, there can be a lot of grey areas that will need to be dissected by professionals to determine if there is a strong enough case. Fortunately for the employee, substantiating these causes is a reasonable process: the Court places itself in the employer’s shoes and asks if they could see a sufficient risk of resignation.
