Employment law

Constructive Dismissal – Bullying And Harassment

At common law, constructive dismissal is a term used to describe a situation where the employee leaves the employment, apparently voluntarily because for significant reason continuation of the employment is no longer tenable. It is effectively a resignation or departure of the employee against their own will.

A proceeding based on such termination would require the Court to determine whether the employee voluntarily resigned or left the employment, or whether the circumstances were such that the resignation was not voluntary.

In effect constructive dismissal only occurs if an employer behaves in a manner which may be considered a significant breach of the terms of the contract or unauthorized variation of the contract (i.e. reduction in pay, demotion unreasonable in the circumstances, significant relocation of employment, reduction of working hours, etc), such that the behavior could be considered a dismissal.  There must be a real lack of alternative option or choice open to the employee. It is a last resort action.

It may be found in situations where the employer threatens to sack an employee if they do not choose to resign, or it may be implied from conduct such as taking away equipment, keys or other materials which the employee requires to do their job.

It also may be found in a situation where the employee is subjected to unacceptable conduct, such as sexual harassment, or bullying and harassment by a colleague or supervisor (which must be proved to have occurred and be of a significant nature) and the employer unreasonably fails to stop or prevent the offending conduct.

A court is unlikely to find constructive dismissal if an employee resigns prematurely or while other options are still open.

In constructive dismissal proceedings, the onus of proof is on the employee to persuade the Court that due to the conduct of the employer they have been effectively dismissed; and that the employer’s conduct was the principal contributing factor which led the employee to leave the employment, as they had no other option (leaving the employment being the last option) in all the circumstances of the case.

Fair Work Act 2009 (FW Act) – Statutory Unfair Dismissal

The FW Act includes a provision which provides that a person will be deemed to have been unfairly dismissed at the initiative of the employer if “the person resigned from his or her employment, but was forced to do so because of the conduct, or course of conduct, engaged in by his or her employer”.  (Section 386(1)(b)).  Fair Work Australia must come to a conclusion that the offending conduct “forced” the employee to resign or leave the employment.  The test under current unfair dismissal legislation is very high, much higher than under the previous unfair dismissal regime.

In addition, virtually all of the principles set out under common law also apply in analyzing any constructive dismissal matter under the unfair dismissal laws.

Rosendorff Lawyers To Assist

These principles of constructive dismissal, as outlined under common law, also apply when analyzing constructive dismissal matters under the unfair dismissal laws. In navigating the complexities of constructive dismissal and related employment issues, the expertise of an employment lawyer can be invaluable. These legal professionals can provide tailored advice and representation to employees facing such situations, ensuring their rights are protected. For guidance on constructive dismissal matters and other employment-related concerns, consult Rosendorff Lawyers.