An ex-employee has claimed “constructive dismissal” – now what?! | bossed

Updated: Jul 11, 2020

No employer likes to receive notice of a personal grievance, let alone a constructive dismissal which claims you forced resignation from an employee. How you initially react will set the tone for the entire proceeding, so, what should you do first?

Don’t Panic

In many situations personal grievances for constructive dismissal can be defended or settled quickly. The former employee has the burden of proof in this situation; they need to show through their claim that a breach of duty on the part of the employer occurred, and was serious enough that it was reasonably foreseeable the employee would resign as a result.

Understand what constructive dismissal is and is not

A resignation that was influenced or coerced by an employer and not considered voluntary by the employee could be considered constructive dismissal. At least one of the following set of circumstances would need to be present and would need to have led to an employee’s resignation;

  • An employer followed a course of action and behaviour, with the deliberate intention of, causing the employee to resign.

  • An employee was given a choice to a) resign or, b) be dismissed by the employer.

  • An employer breached their duty of care for an employee causing them to resign.

A resignation would not be considered constructive dismissal if;

  • An employee had communicated a clear intention to resign.

  • The resignation was voluntary.

  • The resignation is initiated by the employee, not the employer.