When an employer undertakes to make an employee’s work environment so difficult that the employee has no other realistic option but resignation from their employment that is what is known as constructive dismissal which is actionable by a solicitor. There is no real consent on the part of the employee; it is forced resignation which a constructive dismissal solicitor can use to base legal action for an unfair dismissal compensation claim. An employee will be required to show the former employer’s wrongful actions, conduct, or behaviour toward the employee was such that it provided no alternative but to resign in order that a successful finding of constructive dismissal will be realised during a compensation claim hearing. The effect is that an employee's solicitor might make an application of unfair dismissal with the objective of reinstatement and/or compensatory damages, according to Justices Jacobson and Landers: "An employer must not, without reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee."
Since constructive dismissal is either an unlawful or unfair dismissal, claims for compensation are governed under the Fair Work Act 2009 (FWAct) or the Workplace Relations Act 2006, mostly dependant on the actions brought by the employer that made work conditions unbearable. Most employees will be protected if the offending employer had 15 employees or more and their continuous service was not casual employment and exceeded the six-month minimum. The continuous service requirement for those firms that employ less than 15 is extended to twelve months. A constructive dismissal solicitor making application for compensation must show an applicant resigned (truly dismissed) and it was not a genuine redundancy which was pending and that conditions were ‘harsh, unjust or unreasonable’ and that when the employer’s business had less than the minimum 15 employees to qualify as a small business, the dismissal did not meet the standards of the Small Business Fair Dismissal Code.
The FWC tribunal might order reinstatement and/or award compensation when reinstatement would not be appropriate, particularly when the employer/employee relationship is tenuous, as is most often the case with constructive dismissal. The FWC also considers the effect an ordered award will make to the financial stability and viability of the business, the employee’s term of service, remuneration, and possible loss mitigation since termination of employment, as well as other relevant issues.
Our solicitors are knowledgeable and experienced in compensation claims for constructive dismissal and might utilise a no win no fee or contingency basis to process your claim, when appropriate. When you require free legal advice pertaining to constructive dismissal or any other employment law matter, without obligation just call our helpline.
