Constructive Dismissal occurs when a person is forced to resign against their will because of something very serious that the employer has either done or failed to do. For example, you might be justified in resigning and claiming Constructive Dismissal if your employer:

Unilaterally demoted you for no reason
Deliberately failed to pay you, or paid you less than you were entitled to (i.e. not just as a result of an error by the Payroll Department)
Forced you to accept an unreasonable change to your job role, e.g. a transfer to another workplace many miles away, without your agreement
Threatened to dismiss you unless you resigned
Subjected you to bullying or harassment
Ignored complaints you made about being bullied or harassed at work, or told you to stop making a fuss.
The employer’s behaviour would need to be so serious as to breach the contract of employment. It could be one major incident or a series of lesser ones which taken together make it intolerable to stay in the job. The legal jargon for such behaviour is a “repudiatory breach” which justifies the belief that the contract has effectively been destroyed.

Although not technically the same as Unfair Dismissal, behaviour which amounts to a repudiatory breach of contract is also likely to be “unfair” in the commonly-understood sense of the word.

One scenario that often springs to mind is the “Do you want to resign or would you rather be fired?” type of conversation. And certainly, put in those terms, it would be very likely to result in a Constructive Dismissal claim. However, this has created a fear in the minds of many employers that even the mere suggestion that an employee might be better suited to a different kind or role is asking for trouble. This fear is exaggerated. Nevertheless, it is true that such delicate conversations should always take place for a good reason (e.g. in the context of a performance review, or a restructuring exercise that might lead to redundancies) not out of the blue, and must be carefully planned, and executed with sensitivity.

In order to succeed, a Constructive Dismissal claim needs to show that the behaviour was so serious as to justify resignation, and therefore such a resignation should normally take place immediately. If not, the employer will be able to argue that the employee tacitly accepted the change of role, or whatever behaviour was subsequently complained about. However, even if an employee does not resign immediately, the risk remains that he/she may do so after a further incident of unacceptable behaviour which is deemed to be the “last straw”. Remember that a number of less serious incidents can add up to a repudiatory breach. Thus, a delay in resigning is not always fatal to a claim’s prospects of success.

In all such cases, it boils down to the loss of trust and confidence between the parties. Where an employer and an employee no longer trust each other, the contract of employment is jeopardized and a claim of Constructive Dismissal is more likely to arise. You only need to read the accounts of the acrimony between Ms English and Lord Sugar to understand that.

To avoid such a situation, employers need to behave reasonably and honorably towards their employees, seek to negotiate and agree changes rather than imposing them, and take all complaints of harassment or bullying seriously. Employers who treat people fairly in the first place are less likely to face such problems, and if spurious claims are made they are more likely to be able successfully to defend themselves. Visit: https://unfairdismissalsaustralia.com.au/what-is-an-unfair-dismissa...