What the employer did or failed to do and whether that conduct was sufficiently serious.
CONSTRUCTIVE DISMISSAL
Thinking of resigning because work has become untenable? Get the sequence right.
A resignation can sometimes be treated as a dismissal where the employer's conduct legally caused the employee to leave. It is fact-sensitive and easy to damage with a rushed resignation.
UNDERSTAND THE PROBLEM
Resigning can change the case permanently, so sequence matters.
Constructive dismissal is not simply a resignation from a bad workplace. The question is whether the employer's conduct caused the resignation in circumstances where the law treats the employee as having been dismissed.
That makes timing and causation critical. Before resigning, identify the conduct said to be intolerable, whether the employer was told about it, what opportunity existed to put matters right, and why resignation became the consequence of the employer's conduct rather than an unrelated choice.
WHAT MATTERS
The questions usually become
Whether the employer's conduct breached duties or made continued employment untenable in the circumstances.
Whether the resignation was caused by that conduct.
Whether the employee's own steps before resigning support or weaken the claimed connection.
THREE QUESTIONS FIRST
Get these straight before the argument gets bigger.
What employer conduct are you relying on?
What did you do to raise or respond to the problem before resigning?
Why did that conduct cause the resignation when it did?
WHAT TO DO NOW
Before sending a resignation
Stop and define the breach
Write down the employer conduct you say has made continued employment impossible or unreasonable.
Raise the problem where practicable
A clear complaint or request for correction can establish what the employer knew and how it responded.
Get the chronology straight
Record the sequence between the employer conduct, your response and the decision to resign.
Get advice before the irreversible step
A resignation letter cannot always repair a weak sequence after the event.
WARNING SIGNS
Things worth looking at closely.
- Resigning in anger before the employer can respond
- A resignation letter giving unrelated reasons
- Continuing for a long period without explaining why the breach remains operative
- Overstating the facts rather than preserving objective evidence
COMMON MISTAKES
Ways employees accidentally make the problem harder.
DON'T
Using the words 'constructive dismissal' as a substitute for explaining what the employer actually did.
DON'T
Resigning for several mixed reasons without identifying the employer conduct that caused the decision.
DON'T
Waiting a long time after the alleged breach while continuing as normal, without documenting why.
DON'T
Sending a resignation in anger before preserving evidence or raising the central issue.
POSSIBLE OUTCOMES
What a useful result can look like.
A personal grievance for unjustified dismissal if constructive dismissal is established
Lost wages and compensation where proved
Negotiated exit terms and reference wording
Resolution of related bullying, wage or disadvantage issues
FAQ
Constructive dismissal
Should I resign before getting advice?
If you can safely obtain advice first, that is often preferable because the timing and wording of a resignation can materially affect the claim.
Is bullying automatically constructive dismissal?
No. Bullying may be part of the facts, but the legal connection between the employer's conduct and the resignation still has to be established.
What if I was told to resign or be fired?
That can be highly relevant. Record exactly what was said, by whom and when.
Does the personal grievance time limit apply?
Constructive dismissal is usually pursued as an unjustified dismissal grievance, so the usual limitation period is important.
FROM PROBLEM TO OUTCOME
Most disputes move through the same basic sequence.
- 1Preserve
Documents, dates, evidence and the deadline.
- 2Raise
Put the actual grievance or response clearly.
- 3Resolve
Negotiate or mediate where a sensible resolution is available.
- 4Escalate
Use the ERA or Court where the dispute cannot be resolved.
CONSTRUCTIVE DISMISSAL
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