What is constructive dismissal?

This is a more technical section for us to discuss.  You can resign and raise a personal grievance (see here and here for a discussion whether this is a good idea), but let’s cover the basics of what a constructive dismissal is.  The New Zealand courts have established the following grounds where the courts believe an employee can claim they were forced to quit.

Given an ultimatum- quit or be dismissed

Like an execution squad giving a prisoner a gun and quiet space, if you’re given a Hobson’s choice (i.e. a fake choice) of jumping before your being pushed, then that’s no real choice.  This doesn’t come up much; an example may be if an employee asks their boss if they should quit in the middle of the difficult conversation, and boss tells them to do so.

Bullied into to quitting

I prefer to stay away from the B word because it provokes a whole lot of emotions and opinions, but here, it’s the right word for the job.  This is specifically where the employer intentionally undertakes a course of conduct with the deliberate purpose of eliciting the employee’s resignation.  Legends tell of corporations assigning people work that involves sitting in an empty room with nothing to do, 40 hours a week.  This is hard to prove because intention to make you quit is hard to prove, but if you can, it’s good grounds for constructive dismissal.

Breaching the contract

The third ground is where the employer breaches their obligations, which I break down further into neglect and breaking the contract.  Breaching the contract is where the employer has done something that is clearly contrary the terms of the contract, or the law, and ignores the employee’s objection.  Classic examples include reducing hours of work, changing location, not paying wages on time, not paying for extra work done.  Typically you need to raise this with the employer first, and giving them a chance to fix.

Neglect

Is where the employer is not looking after you, despite their obligations to do so.  This doesn’t mean failing to promote you, give you a pay rise or make you happy.  This is more where you are reliant on the employer to protect you, because you don’t have the power to do so yourself.  Good examples are poor health and safety controls, workplace bullying, or harassment.  Again, you need to give them a chance to fix, and if they do nothing, you’ve got reasonable grounds.  If they do something but it’s not to your satisfaction, that’s a hard hill to climb.