What is constructive dismissal?

In a recent case an employee resigned following persistent workplace bullying by fellow employees. The employer did not take appropriate steps to stop the behaviour.

All employers owe a duty to their employees to prevent this type of behaviour. The Employment Court said that where a resignation is the outcome of a breach of duty by an employer to provide a secure workplace it was foreseeable that the employee would resign.  

The Employment Court confirmed that the resignation would be treated as a constructive dismissal.

A constructive dismissal may arise where an employer directly or indirectly applies pressure (through action or inaction) which causes an employee to resign. An employee reaches the point where he or she feels that there is no choice but to resign.

Not only must the employee resign, the actions or inactions of the employer must cause the resignation, and the employee’s resignation must be foreseeable. It is not necessary whether the employer intended for the employee to resign.

There are three broad categories of constructive dismissal:

1. An employer gives an employee an option of resigning or being dismissed.
2. An employer deliberately acts in a way that puts pressure on the employee, coercing the employee to resign.
3. An employer breaches its duty owed to the employee, and this causes the employee to resign.

It is up to the employee to show that he or she has been constructively dismissed, that is, that the resignation would not have occurred if it was not for the conduct of the employer.

An employee can raise a personal grievance with his or her employer, but must do so within 90 days of the resignation/dismissal.