Tuesday 19 March 2019

How do I deal with a constructive dismissal claim from an employee who has resigned?

It’s important to have necessary procedures in place and ensure employees have signed them off
It’s important to have necessary procedures in place and ensure employees have signed them off

Leadership Advice: Caroline McEnery

Query: One of my employees has recently resigned from his position. He has now advised me that he is taking a constructive dismissal case against me. What does this mean? He made the decision to leave, he wasn't dismissed.

Answer:  Constructive dismissal occurs when due to the conduct of the employer, the employee can no longer continue to carry on working for his/her employer. In other words, your employee is claiming that due to your conduct, he was left with no other option but to resign. (It may not necessarily be your alleged conduct per se but it could be another employee's alleged behaviour or the manner in which a grievance or disciplinary was conducted.)

Claims for constructive dismissal are generally based upon two tests: the contract test and the reasonableness test.

The contract test ascertains whether the employee's resignation arose as a consequence of a breach of contract by the employer.

The reasonableness test evaluates whether the actions of the employer were so unreasonable that the employee was left with no option but to resign.

There are a few instances where an employee is entitled to regard their contract as terminated for constructive dismissal purposes. For example, if the employer's conduct amounts to an actual breach of the contract of employment or, although it falls short of such a breach, is serious enough to warrant the resignation; if the employer's conduct shows that he/she no longer intends to be bound by one or more of the essential terms of the contract; if the employer has acted unreasonably or if the conduct by fellow employees that goes unchecked by the employer, eg bullying and harassment, continues unchecked.

When it comes to the employer's actions, in order to ground constructive dismissal the conduct of the employer must not be petty or minor but must go to the root of the relationship between the employer and employee.

The key pointer for constructive dismissal is that the employee must exhaust the internal procedures before taking or succeeding in a claim for constructive dismissal. Did your employee bring any concerns to your attention in the months leading up to the resignation? If so, did he utilise and exhaust the grievance procedure? At all times you as the employer must have the concerns.

In assessing an employer's conduct in this respect the following are considered: your words, actions and responses [if any], the work environment created by you, a failure to comply with a fundamental term of the contract of employment, a failure to adequately respond to concerns or grievances raised by an employee, a failure to exhaust your own procedures for dealing with an employee's concerns or grievances, a failure to encourage an employee to have recourse to such procedures and whether there was a genuine attempt made by you to deal with the concerns of the employee.

Unlike other unfair dismissal claims, the burden of proof in cases of constructive dismissal lies with the complainant.

It is your employee who must demonstrate to the WRC that, because of the conduct experience, he had no alternative other than to resign from your employment.

Constructive dismissal claims are notoriously difficult to win given that many are not aware that there must be an exhaustion of the internal procedures unless the behaviour complained of was so detrimental that there was no time to do so.

In line with current employment legislation all employees should receive a copy of the company disciplinary and grievance procedure within 28 days of commencement of employment.

It is very important to ensure that you not only have the necessary procedure in place, but that it has been issued to, and signed off by, all employees in order to guarantee that you are in a position to correctly manage disciplinary and grievance issues within the workplace if they arise.

If in doubt about how to respond correctly to a HR issue in your organisation be sure to seek professional advice before proceeding.

  • Caroline McEnery, managing director of The HR Suite, is also author of The Art of Asking the Right Questions, a manager's toolkit on all HR-related tips to proactively manage your team.

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