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      Constructive Dismissal

       

      If you have been forced to resign, or are thinking about it, due to a serious breach of your contract you may be entitled to claim constructive dismissal.  

      Valid constructive dismissal claims have the following requirements:

      • There must be an actual, or anticipated, breach of contract.
      • The breach must go to the root of the contract
      • You must resign in response to the breach.
      • You must not delay too long in terminating the contract in response to the breach.

       

      Employer’s Conduct

      The employer’s breach must be very serious.  It is not enough for them to only act unreasonably.  You must be able to show that their actions amounted to a breach of a fundamental term of your contract.

      This could be a breach of an express term, such as one relating to your rate of pay or contracted hours.  Often constructive dismissal claims will rely on an alleged breach of the implied term of trust and confidence.  This term is fundamental to every contract.

      Proving this requires showing that the employer has acted without reasonable cause in a manner likely to destroy, or seriously damage, the relationship of confidence and trust between employer and employee.  This can be broken down into three questions:

      • What was the conduct?
      • Did the employer have reasonable and proper cause for that conduct?
      • Was the conduct calculated?
      • Was the conduct likely to destroy, or seriously damage, trust and confidence?

       

      Trust and Confidence Breach Examples

      • Refusing to pay overtime when overtime has already been worked
      • Significantly changing duties
      • Requiring an employee move work place without reasonable notice
      • Aggressive attempts to persuade an employee to accept a change in the way they are paid
      • Imposing a disciplinary sanction short of dismissal which is unreasonable in the circumstances

       

      Repeated Minor Breaches

      Minor repeated breaches can accumulate such that they be considered a very serious breach when considered together.  As an example of this one situation might be that your employer pays you one week late in January – this is unlikely to be enough of a breach to entitle you to resign.  If you’re paid late consistently, across multiple months, this could be considered significant.

       

      The Final Straw

      • The act of final straw does not need to be of the same quality as previous breaches.
      • It must contribute to the cumulative breach and not be trivial.
      • Alone the final straw does not need to be an unreasonable act or amount to breach of contract.
      • It is, however, unusual for a reasonable event to satisfy the final straw test.

       

      Resignation in response to the breach

      In order to establish constructive dismissal, you must resign because of your employer’s failure to perform their obligations under the contract.

      If you do not resign, and continue to work, in accepting payment you are affirming the contract and you could inadvertently lose your right to claim.

      This is an extremely delicate area and acting without full consideration of the facts of your own case and the facts of constructive dismissal could leave you exposed to losing out.

      Help with Constructive Dismissal

      Constructive dismissal is a very complicated area of employment law, where expert advice can make all the difference.  Whilst some of the major points are outlined here, like with a medical issue self diagnosing on the internet can be dangerous.  If you think your employment situation is approaching constructive dismissal, or if you’ve already resigned don’t hesitate to take advantage of our free, no obligation, consultation to get the advise you need.

       

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