What Evidence is Needed to Support a Constructive Dismissal Claim?

Constructive Dismissal Claim

A constructive dismissal claim involves an employer’s conduct that causes working conditions to be intolerable for an employee. The claim must be supported by evidence of this intolerable work environment. This evidence may include a variety of things such as email and text messages, voicemails, and written notes. The employee also needs to demonstrate that they have made reasonable efforts to mitigate the damage caused by the employer’s conduct.

The first step in a constructive dismissal case is determining whether or not there was a fundamental breach of the employment contract. There are a number of factors that must be taken into account in this analysis, including the timing of the employer’s breach and the reason for the resignation. If an employee resigns because of a major change in their employment status or the employer’s treatment of them that is considered an express termination and not constructive dismissal.

Generally, a constructive dismissal claim arises when an employer breaches an implied term of the employment contract. These terms are often established through common law, custom and practice and do not need to be explicitly stated in the employment contract. The most important implied term is that an employer must treat employees in a reasonable manner. An employer can be in breach of this duty if they act in a way that destroys the trust and confidence of an employee.

What Evidence is Needed to Support a Constructive Dismissal Claim?

This includes, for example, making unnecessarily negative and derogatory comments about an employee’s performance or failing to deal with an employee’s complaints in a timely and reasonable manner. This kind of behaviour must be serious enough to cause an employee to say ‘enough is enough’ and resign as a result.

To prove a constructive termination claim an employee must show that the employer’s behaviour was so serious and intolerable that it forced them to resign. The behaviour must also be objectively found to be a repudiation of an express or implicit term of the employment contract. For example, if an employer unilaterally changes a significant term of the contract such as salary or benefits this is likely to be a fundamental breach.

Other common breaches of the employment contract are a failure to pay wages, imposing unauthorised deductions from an employee’s wages, failing to investigate complaints in a timely and reasonable manner and arbitrarily suspending or laying off an employee. These are all serious and could amount to a constructive dismissal.

The onus is on the employee to prove that their employer’s conduct was sufficiently intolerable that it entitles them to file a constructive dismissal claim. It’s a difficult task and the consequences can be disastrous if an incorrect approach is taken. For this reason it’s always best to seek legal advice before deciding to take action. An experienced employment lawyer can help you determine if you have grounds for a claim and what evidence is required to support your case.

Constructive Dismissal Claim A constructive dismissal claim involves an employer’s conduct that causes working conditions to be intolerable for an employee. The claim must be supported by evidence of this intolerable work environment. This evidence may include a variety of things such as email and text messages, voicemails, and written notes. The employee also needs…