Constructive Dismissal
Whether or not an employee is able to claim constructive dismissal will ultimately depend on the specifics of their employment contract and whether or not the employer’s conduct satisfies the requirements set out in the relevant legislation. However, the law does set out that if an employer breaches those requirements in a way that is so intolerable that it forces an employee to resign, that employee could be entitled to claim damages.
In a non-unionised workplace, an at-will employment relationship means that the worker can be terminated by their employer at any time with or without cause. However, in a unionized workplace, the employer must meet certain obligations to avoid triggering constructive dismissal claims. The law does not require that employers treat their employees fairly or provide a stress-free working environment.
While the employee must show that they were compelled to resign as a result of a breach of their contract, courts have determined that a change must be substantial in order to give rise to constructive dismissal. For example, a company may remove an employee’s major area of responsibility or decrease their role to the point that it is no longer possible for them to perform the role. This is a clear breach of contract, and the court will likely find that it caused the employee to resign.
How Does Constructive Dismissal Affect Employee Turnover Rates?
A serious health and safety breach is another potential trigger for a constructive dismissal claim. For example, if an employee works with display screen equipment for long periods of time and starts to experience discomfort such as eye strain, this is a valid health and safety concern that could trigger a claim. The business must have policies and procedures in place to address such concerns, and ensure those are communicated effectively with employees.
An employee’s right to be paid for their work is also a fundamental aspect of the employment contract. It is therefore illegal for an employer to withhold wages or salary. As such, failing to pay an employee their agreed rate of pay can be a cause for a constructive dismissal claim. The same is true of failing to offer certain contractual benefits, such as a company car or enhanced maternity pay.
Investing in manager and supervisor training will help to mitigate the risk of constructive dismissal lawyer near me. This includes making sure that all managers have the skills and knowledge they need to deal with employees’ concerns. It is also important to encourage employees to raise issues with management. By ensuring that all grievances are addressed, it is less likely that an employee will feel they have no other choice but to resign.
An employee who feels they have been constructively dismissed may make a claim to the Fair Work Commission for unfair dismissal. If successful, the employee will be awarded damages for lost income and loss of opportunity. As the claim process can be lengthy, it is best to consult with a constructive dismissal lawyer near you as soon as you become aware that your employee might be thinking about leaving.
