Employees are often quick to resign in the face of some dissatisfaction in the workplace, and then proceed against their former employer with a claim for constructive dismissal, not being aware of what is required in order to succeed with such a claim.
A constructive dismissal arises when the employee terminates his or her contract of employment because the employer has made continued employment intolerable for the employee. Proving that continued employment has become intolerable is no easy task, it requires far more than proving that the working conditions are unpleasant, rather, it requires, objectively viewed, unendurable circumstances which have forced the employee to his or her breaking-point. It is generally advisable that an employee attempts to exhaust internal remedies prior to terminating his or her employment.
The court has upheld claims of constructive dismissal in, amongst other things, the following circumstances:
- the employer’s failure to pay the employee;
- harassment of the employee; and
- assault of employee.
The court has dismissed claims of constructive dismissal in, amongst other things, the following circumstances:
- the employer’s refusal to promote the employee;
- the employee’s dissatisfaction with the outcome of a grievance; and
- the employee’s working hours created a perceived risk to the employee’s safety.
Of course, every case must be considered on its own merits.
If it is an employee’s intention is to resign and pursue a claim for constructive dismissal, the employee should carefully consider whether, objectively viewed, the employer has made continued employment unbearable.