Constructive Dismissal

If an employer puts pressure (directly or indirectly) on an employee to resign or makes the situation at work intolerable for the employee, it may be a forced resignation or “constructive dismissal”. A constructive dismissal may be where, for example, one or more of the following occurs:

  • the employer has followed a course of conduct deliberately aimed at coercing the employee to resign
  • the employee is told to choose between resigning or being dismissed
  • there has been a breach of duty by the employer (i.e. a breach of the agreement or of fair and reasonable treatment) such that the employee feels he or she cannot remain in the job.

If an employee has been forced to resign, they may have a personal grievance. We strongly recommend that you contact us before resigning from your employment.

You need to know that generally three situations where a constructive dismissal may occur. These can be described as:

  • Where the employee is given a choice of resignation or dismissal.
  • Where the employer has followed a course of conduct with the deliberate and dominant purpose of coercing an employee to resign, and
  • Where a breach of duty by the employer leads a worker to resign.

To be successful in a constructive dismissal case the employee will need to show:

  1. That the employer’s conduct was more than rude or improper but rather that it was an act that showed the employer had repudiated the relationship.
  2. That it was foreseeable to a reasonable employer that the employee would not continue to work under the prevailing conditions and therefore would resign.
  3. That the resigning employee put the employer on notice that a resignation was coming or that the behaviour could lead to a resignation.
  4. That the resignation letter is not positive and that the employee was required to resign due to a breach.

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