Constructive Dismissal

What is the definition of constructive dismissal?

Constructive dismissal is when an employee is forced to leave work due to the conduct of his employer. It involves the resignation of an employee in response to a serious breach by the employer of the terms of the employment contract.

What are the necessary components for constructive dismissal?

There are three elements that must be present to prove constructive dismissal. First, the employee must prove that the employer is in serious violation of their contract. Then this violation must be the reason why the employee was forced to leave. And finally, the employee must prove that they had nothing to do with the contract violation. Meaning, they did not behave in such a way as to bring on the violation committed by the employer by an implicit acceptance of the contract breach.

In relation to the last statement, it must be emphasised that the employee should seek advice early in the game as the time of resignation is quite critical. Too early in jumping the gun can lead the employer to claim that there was no coercion or breach. Too late and the employer can claim that you stayed on because you implicitly agreed to the breach or modification of contract. So consulting with other associations and even solicitors may be the prudent thing to do.

Recent rulings have highlighted the need for the breach to be serious and must show that the employer has no intention of honouring the subject provisions of the contract.

What are some examples of breaches of contracts leading to constructive dismissal?

Serious breaches or violations of contract that can lead to constructive dismissal can include incidents such as non payment of the employee’s wages, withholding or making unjust deductions outside the employment agreement. It can also be through the imposition of a change in working conditions not stipulated in the employment contract which render the employee’s job difficult. This could be relocating the place where the employee is supposed to report for work. Intimidation, bullying and aggression from other people in the workplace can also be cited here. As it is being forced to work under conditions that pose danger to the worker, assuming that these conditions were not mentioned in the employment contract. False accusations of theft or incompetence are also possible examples. Then if the employee is unduly singled out for humiliation or subject to arbitrary and grossly unfair demotions these can likewise be possible causes as well.

In the more recent cases of constructive dismissal, it showed that the employee must prove that there was a breach in the duty of both employer and employee to exhibit mutual trust and confidence. It was shown that an employment contract implies the existence of mutual trust and confidence between the employer and employee. So any action that serves to undermine or destroy this trust and confidence is considered sufficient for claiming constructive dismissal. However, it has been shown that these circumstances can be hard to prove so the sooner the employee can seek advice, the better it will be for their case.

It is very important for the employee to secure a copy of his employment contract. Once they have it, it is best to go over it well to ensure that there is nothing stated there that allows for or implies that the employer has the right to make such a breach.

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For more information on:

  • What are some alternatives before leaving employment?
  • Leaving employment immediately is seldom the best alternative and before doing so, it may be good to try a few things first.
  • What are your remedies after a constructive dismissal?
  • Are there agencies you can approach for assistance?
  • Can you claim for benefits after constructive dismissal?