If you are wondering whether your dismissal from work would be classed as unfair dismissal or constructive dismissal it is wise to consult good lawyers because not every state has the same laws. In Western Australia, the term constructive dismissal can be used to describe either one of two scenarios: –
- You have been asked to resign by your employer for whatever reason. If you resigned at the request of your employer it is classed as constructive dismissal.
- If you have been forced to resign due to the actions or conduct of your employer. For instance, the employer may have breached the terms of the employment contract, or even told you that the terms would be breached so you had no choice but to resign.
This is sometimes classed as unfair dismissal even though resigning is somewhat different from being dismissed. That is because the end result is the same; you now don’t have the employment at this company that you would have had if the situation had not developed.
In both cases, you can do something about this problem. While you may not want to have your job back under the same conditions that forced your resignation, you may be able to get some kind of compensation, especially if you were a keynote employee. However, constructive dismissal cannot be claimed for on its own. You have to also be able to prove that ‘unfair dismissal’ occurred. That is, the termination occurred due to the initiative of the employer.
If you can prove this, for instance, if there are witnesses to your boss telling you to resign, you don’t have to give normally required notice, but can leave immediately.
You may also be able to claim for breach of contract, if this is the reason you resigned. In this case, the employee must leave as soon as possible after the breach occurs, otherwise it will be assumed they agree with it.
Each case of constructive dismissal is judged on its own merits, due to the somewhat complicated issues that are often present. Some examples are: –
- If an employee is told to resign or be sacked
- Where an employee is discriminated against or sexual harassed
- When an employee is the subject of frequent put-downs, humiliation or verbal abuse and can prove it
- Where the workplace is very unsafe, the employee has advised the employer of it and had no response or improvement
- Where the employer campaigns against the employee in a way that prevents them from doing their job and basically forces them out of it and where adequate proof is available.
- And where the employee is demoted with a great reduction in remuneration and responsibilities.