What is a constructive dismissal?
Being in HR, I cannot run away from this subject. We in HR always face this issue. Employee’s claiming that they were ‘forced’ to resign by the conduct of the employer. They then run over to the IR office causing us in HR another late day at work and a lot of paperwork.
But ‘forced’ resignation or better known as constructive dismissal is a real thing and I would like to share with you the principles to identify constructive dismissal. I will try to explain this in the most layman term possible
1) Constructive dismissal is initiated by the employee in a situation where the employers behaves in a way that makes it impossible for the employee to continue working in that environment.
2) The employee is relegated to a position without no solid reason and this causes humiliation and frustration and the thus makes the employee resign. Downgrading without reasons or shifting the employees office to a nearby toilet or security post without any valid reasons are examples.
3) Sexual harassment in workplace that causes the employee to resign in fear of safety. After employee makes complaint and nothing has been done by the management.
In this type of dismissal, it is duty of the employee to PROVE that he has been constructively dismissed. The employee has to prove:
- The company is guilty of the conduct. Employee needs to prove that this coduct is so severe that it breaches the normal employer employee relationship.
- The company by the conduct projects intention that the employer is no longer interested in keeping the employee.
- The conduct creates a condition where the employee has no other choice but to leave.
- The employee resigns immediately after the conduct takes place and lodges in the complaint within the shortest time.
In order for the claim to be successful, all the principle must be in place. If you are ever in a constructive dismissal predicament, be sure to watch out for these criterias.