One of the key areas of Employment Law is Constructive Dismissal. Another term for Constructive Dismissal is Constructive Discharge. Such a Dismissal occurs in a situation where the employee quits their position within a company due to egregious actions on the part of the employer. It is typically something that causes a breach of contract between the employee and employer.
There is typically a circumstance, or situation, that has occurred on the part of the employer, which has caused the employee's rights to be violated, therefore, causing the employee to quit or resign from their position. Once this breach of contract has occurred, the employee then has the right to file a claim against the employer. Examples of Constructive Dismissal may include, but not limited to:
- Changing an employee's hours of work without notice
- Inability to pay an employee their wages
- Refusing to let the employee work
- Placing an employee on probation without following office protocol
- Placing someone else in the employee's position without notice
- Unlawful business practices
- Sexual Harassment
- Accusing an employee of theft
Constructive Dismissal differs from Unfair Dismissal and Wrongful Dismissal in that the conditions which caused the employee to resign abruptly might not be unfair, per se. The employee has the burden of proof to show that the employer had done something to cause the resignation. In a lot of instances, a Constructive Dismissal typically ends up as an Unfair or Wrongful Dismissal, as in the case of sexual harassment or refusal to pay wages.
An employee has certain rights when it comes to their employment. At the same time, if an employee intends to file a claim against the employer for any breach of contract, there are certain steps the employee needs to do in order for his/her claim to be valid.
The steps are but not limited to:
The employee has refused to accept the breach of contract. It is not necessary to tell the employer of the refusal. Actions speak for themselves. The employee must have resigned soon after the incident or incidents.
Must show valid proof of a breach of contract. An example of this may include proof of wages not paid, such as showing pay periods but having no paycheck issued for time worked. This can be proven by time cards.
File a written claim with an employment law solicitor or attorney. Mediators are often used in the case of constructive dismissals as well.
It may seem daunting to file a constructive lawsuit against an employer but by retaining employment law solicitors, attorneys or mediators, the process for upholding an employee's rights are easier. The solicitors and attorneys will know how to move the claim through the courts with the right result for the case.
Of course, each case will stand on its own evidence and will be decided based on that evidence. That is why it is important to have all paperwork, or proof, ready for court.
Monetary damages are sometimes awarded. The three types of monetary awards for this type of dismissal are:
Basic
This is awarded to the employee based on loss of wages by job loss. It will be determined by the length of employment and amount of wages the employee was earning at the time of resignation.
Compensatory
This is calculated by the loss of earning between the job loss and the court hearing. It may also include any future earnings, which will be deemed by the court.
Additional
This is awarded in addition to the basic and compensatory awards, if the court has ordered that the employee can return to work and the employer refuses to allow the employee to return.
It is easy to see how an employee's rights are protected, yet at the same time, be confusing for the employee. It is important to seek an employment law solicitor or attorney to help with the details of filing a claim in order to help the employee.
Do you know the difference between constructive dismissal and unfair dismissal? Visit James R Gibb's blog to learn more about this and important facts about unfair dismissal laws.
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