Constructive Dismissal: Corporate for Forced Resignation

Have you been Forced to Resign in a Constructive Dismissal situation at work?

Some workplace situations are just unbearable. We often hear from people who feel the workplace bullying is so bad that they are being forced to resign in Constructive Dismissal situations.

Another way in which people may view they are forced out of their job is if the employer has breached their duties so badly (e.g. to health and safety) that the employee can’t trust their employer to act responsibly anymore, and in the face of this the employee has to go. Sometimes employees are given a choice between resigning or staying and being fired.

The 3 situations described above are the 3 grounds for taking a case for Unjustified Dismissal in Constructive Dismissal circumstances:

1. The employer is following a course of action designed to force the employee to quit

2. The employer breaches their duty to the employee to the point that the employer does what is called repudiate the Employment Agreement (breaches the Employment Contract causing it to be invalid)

3. Hobson’s Choice – resign or be fired – which in no choice at all!

If you think you are in any of these situations in your job please talk to us. We have heard it all and we can help you work through the ways you can protect yourself.

In all of the Constructive Dismissal scenarios we will need evidence to put into the personal grievance letter we will write to your employer to make your claim for Unjustified Dismissal. We can talk to you to find out what evidence exists. If all interactions have been verbal we will most often suggest that you go back through emails, texts and Facebook messages and find any correspondence that supports your claim. Often we have to set a strategy with you to help build the evidence that will support your claim.

If you are in a ‘Resign or be Fired’ situation where your boss says something like ‘if you don’t like it there is the door’ and you have walked out, we will encourage you to send a message to your boss saying ‘I have not resigned. I had to leave right now because you told me to.’

In the heat of the moment we have seen employers respond with ‘I told you that your option was to resign’, These are the types of messages we need to support your claim that you were given an impossible choice and had no option but to leave your job.

Legally, Constructive Dismissal cases are the most challenging ones for employees. The employee is claiming that the situation is so awful they have no choice other than to leave. Legally this means the employee must have evidence to prove their position. Often there is a long history of negative interactions and no evidence. Please talk to us before you resign and do not resign until there is evidence of your claims. If you resign without collecting evidence you are giving your negative employer a get out of jail free card.

As part of the strategy we will set with you we can write to your employer clearly explaining the issues you face (workplace bullying or the employer’s breach of duty) and asking for changes. If the changes you need to fix the situation actually happen that is good. Everything may be resolved and you have a good workplace back. But if they are not fixed, we are building up the evidence needed to show that your issues were ignored and the intolerable situation remained.

Winnable Constructive Dismissal claims often require us to collect evidence that your employer has been told to change something, told again more strongly, and then told again clearly saying that if the situation does not change you will have no choice other than to resign.

Here is an example of a case where we assisted a client who has hereditary vision loss to show she had been Constructively Dismissed on the basis of Discrimination.

Our client worked for a Car Dealer as a Groomer. In 3 years of employment at the Dealership she received no complaints about her work. She had an arrangement with her co-workers that she wouldn’t drive the cars, but other than that she performed all the grooming tasks. She had limited central vision but had peripheral vision. This meant she bent her head down to the floor and looked up through her eyelashes to see someone talking.

One day her boss noticed this and embarrassed her by making negative comments about her disability in a team meeting. He openly said our client looked funny and he didn’t think she was paying attention to him because she was looking at the ground. We had witnesses who heard this discrimination and heard our client asking him to stop.

Our client was then pulled into a meeting with her boss where she was asked to provide her medical files to give the background to her disability. Our client was not asked to take a support person to this meeting and we suggested our client record the meeting. She asked the boss if she could record because her vision prevented her from taking notes. The employer forgot the tape was running and again our client was able to collect evidence of poor treatment. In the

meeting the boss said other people were complaining our client was not up to the job, because of her eyesight. He said she couldn’t do her job because she didn’t drive the cars in the yard.

So we wrote to the company's HR explaining the discrimination from the boss and

said it had to stop. We also said she would not provide her medical files as this was a breach of her privacy and not needed as she was not unsafe at work. The HR department then also insisted that our client’s medical files be provided because they wanted to assess if she was fit to drive. We complained again about this breach of the employer’s duty to protect our client’s privacy and reminded them that an employer must make reasonable accommodations for a person with a disability so that they can do the job. We noted that it was a reasonable accommodation for our client not to drive the cars and that she completed all other grooming tasks.

We said if the company did not back down including assuring our client would not be discriminated against again she would be forced to resign. The

company did not back down and we were able to settle this Constructive Dismissal case in settlement discussions.

If our client had just resigned in the face of these difficult circumstances, we would not have been able to negotiate a settlement.

Please reach out and strategize your situation with us.