Advice From Unfair Dismissal Lawyers: How To Prove Constructive Dismissal And How To Win It


What is constructive dismissal?

There is a constructive dismissal when the employer unlawfully terminates an employee’s contract without expressly dismissing the employee but through the employer’s acts or omissions, the circumstances or working conditions of the employee becomes unbearable that they are not left with any choice but to resign. This is called a forced resignation because of a conductor course of conduct of the employer. In these cases, the employer’s conduct or course of conduct is adverse, unfriendly and harmful to the contract of employment.

The conduct or course of conduct of the employer may refer to an employer’s refusal or failure to provide a safe and healthy working environment for the employee. One example of this is when an employee complains of harassment or discrimination and the employer fails or refuses to take the complaint seriously, fails to investigate the complaint, or fails to implement measure to ensure that the harassment or discrimination does not continue.

The conduct or course of conduct of the employer may also refer to the employer varying the provisions of the employee’s contract by changing his or her working hours, relocating the employee, cutting the pay the employee or demoting the employee.

There may also be a constructive dismissal when the employee resigns, either in the heat of the moment or under extreme pressure. The employee’s resignation was not at his or her own initiative but is a reaction to adverse working conditions, acts or circumstances in the workplace that the employee finds unbearable. This is called a resignation in the heat of the moment. In cases of resignation in the heat of the moment, the employer must have resigned immediately after or shortly after the employer’s conduct.

How can I prove that my dismissal was constructive?

Employee has the burden of proof. The general rule is, the burden of proving a constructive dismissal falls squarely on the employee. This means that it is the employee who must produce evidence that shows the resignation was not voluntary but that it resulted because of emotional or mental stress or because of the conduct of the employer that jostled the employee to resign.

Evidence of mental or emotional state of the employee. In the case of a resignation in the heat of the moment, the employee must prove emotional stress or mental confusion. They can testify that they were afraid or humiliated, embarrassed or feeling threatened. For example, an employee who was suspected of having stolen the property of a client under her care can produce an affidavit or a statement showing that the employee was told by her supervisor that there will be a formal investigation of the suspected theft; that the supervisor intimidated the employee by telling her that a formal investigation may negatively impact the employee’s immigration status. Out of fear and anxiety of being accused of theft, of possibly being criminally charged, and of being deported, the employee resigned. The employee may also provide evidence of the manner by which the employee wrote and submitted a letter of resignation. The employee may provide evidence of feeling emotionally overwhelmed and distressed, of not having first asked advice from a lawyer or a union representative before signing and submitted a letter of resignation.

To prove mental or emotional stress an employee can present an affidavit of the employee or witnesses who can affirm the mental or emotional state or status of the employee. The employee can provide medical evidence to show that they had an underlying mental health issue or problem for which they are receiving treatment. If the employee had consulted with a counsellor or therapist, then the counsellor or therapist’s opinion of the employee’s  state of mind may be helpful. If the employee was prescribed medication to alleviate symptoms of depression or anxiety, then this can also be evidence of the employee’s mental state.

Evidence of the employer’s intention to terminate the employment relationship. In the case of a resignation because of a course of conduct of the employer, the employee must show in detail the actions of the employer through its representatives (such as the employee’s supervisor or manager)to put the employee into a corner such that they have no other real choice but to resign. In this case, the employee must prove that the employer engaged in the conduct fully intending to end or terminate the employment of the employee. The employee can produce copies of memos or letters, emails or text messages from supervisors, managers or co-employees.

What can I do about a constructive dismissal?

Immediate withdrawal of the resignation letter. In case of a resignation in the heat of the moment, the employee can write a letter to the employer notifying the employer that the resignation was made by the employee while under extreme emotional pressure or distress. The employee can immediately withdraw the resignation.

Clarify or confirm the lack of intention to resign. Under the law, the employer is obligated to clarify or confirm the employee’s intention to resign before accepting the resignation and terminating the employee. The employee can send a letter to the employer clarifying that they had not intended to resign at all.

Lodging a complaint for unjust dismissal. A constructive dismissal is still an unfair or unjust dismissal. The employee must lodge a complaint for unjust dismissal with the Fair Work Commission within 21 days from the date of the resignation or from the date of the acceptance of the resignation.

What can I hope to get as payout for constructive dismissal?

According to unfair dismissal employees, because a constructive dismissal is still an unjust dismissal, the employee can ask for reinstatement. Reinstatement means that the employee seeks to go back to his former employment. The employee can also ask for compensation for lost income.

The employee must prove what they were actually receiving as compensation when they were constructively dismissed, how much they could have earned if they had not been dismissed. The compensation includes all allowances and regular overtime. All income received by the employee from other sources since his dismissal will be deducted from this amount. The employee has the right to be compensated for lost income for up to a maximum of 1 year’s salary.