The term constructive dismissal may be one of the most overused and misused terms in the employment law vocabulary. Employees who throw the term around casually may actually prejudice their legal or strategic position by doing so.
Asserting an allegation of constructive dismissal can be a minefield. There are many twists and turns, and the potential constantly exists for the allegation to blow up. It is essential, therefore, to get experienced legal advice at the earliest possible opportunity in order to assess the strength of your position and develop a strategy to achieve the results you want.
Constructive dismissal typically arises in one of two ways in the employment relationship. First, if the employer unilaterally and fundamentally changes one or more of the existing terms and conditions of the employment relationship, it may amount to a breach of contract, or constructive dismissal. Second, if the employee is forced to work in what amounts to a poisoned work environment, that, too, can lead to a constructive dismissal.
The term “constructive” is a euphemism for the breach of contract arising from the behaviour or actions of the employer. This is distinguished from a termination where the employer expressly articulates that the employment of the individual is being terminated.
The onus of proving that an employer’s behaviour or actions were such as to amount to a constructive dismissal rests with the employee. The employee must establish, on a balance of probabilities and based upon objective evidence, that the actions and behaviour of the employer amounted to a repudiation of the existing terms of the employment relationship, and constitute a constructive dismissal.
Leaving the workplace before you know your rights may be a costly mistake that GG&G can help prevent.