The Employment Relations Authority has recently ordered an employer to pay over $26,000 after an employee raised a successful personal grievance claim of constructive dismissal.

The employee had worked for the employer for just over a year, averaging 25 hours per week. She arrived at work for her usual shift but was sent home early by a coworker as she was feeling unwell.

That afternoon the employer texted the employee telling her that she was not to come to work intoxicated or leave without his permission.

The employee told the employer that she had not been intoxicated, but the employer told her to stop messaging him.

The employee was not allowed to go back to work for her next rostered shift and was suspended. The employer arranged for a management meeting. The employer told the employee that the meeting would be to discuss “breached matters”.

The employee described the meeting as hostile. The employee resigned during the meeting and left very upset.

She later raised a personal grievance of constructive dismissal with the Authority.

The Authority had to consider whether the test for constructive dismissal was satisfied. There are three approaches to considering constructive dismissal:

  1. Was the employee given a choice between resigning or being dismissed by the employer?
  2. Did the employer follow a deliberate course of conduct with the dominant purpose of coercing the employee to resign?
  3. Did the employer breach a duty which caused the employee to resign?

In this case, the employer failed to inform the employee of the subject matter of the management meeting. The employee was not told what “breaches” she had made, so she was unprepared for the meeting.

The Authority also considered that the employee had not been given a chance to provide feedback, or have a support person with her at the management meeting. The employer was hostile towards the employee and “dominated” the meeting.

The Authority also decided that it was not reasonable for the employer to have concluded the employee arrived at work intoxicated given there was no evidence of that.

The Authority concluded that the employer had breached their duty to ensure the disciplinary process was fair and reasonable. The employee was not given any context prior to the meeting, the employer acted unfairly in suspending the employee, and failed to give the employee an opportunity to respond.  

The employer was also in total control of the disciplinary process. The defects in the process “were not minor”, and the employer could reasonably have foreseen the employee would resign because of their actions.

The Authority concluded that the employer’s breach of duty had caused the employee to resign.

The Authority ordered the employer to pay $18,000 in compensation to the employee for hurt, humiliation, and loss of dignity. The employer was also ordered to pay $2,265 in unpaid wages, as well as $6,000 in penalties for their failures under the Employment Relations Act.

It is important to be aware of your rights as an employee. If you think you have been treated unfairly, it pays to seek legal advice from a professional with experience in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Alan Knowsley and Hunter Flanagan-Connors