Constructive Dismissal: Employees Must Know Their Rights

Dear Editor,

Over the past several months, a significant number of employees have been reaching out with complaints of unfair and hostile treatment in the workplace. In fact, many workers are suffering in silence because they believe that unless an employer formally terminates them, they have no legal protection. However, that is not entirely correct.

There is a concept in employment law known as constructive dismissal.

Constructive dismissal occurs where an employer, through its conduct, makes the working environment so intolerable, hostile, humiliating, or fundamentally unfair that the employee feels compelled to resign. In such circumstances, the law may treat the resignation as a dismissal by the employer.

Constructive dismissal merely a theoretical concept. The Industrial Court has already established legal standards in Reference No. 35 of 2012: Wayne Weaver v St. James’s Club. The Court held that constructive dismissal will be fully constituted where:

1.      The employer’s conduct demonstrates that the employer no longer intends to be bound by the contract of employment;

2.      The employer’s conduct undermines, erodes, or destroys the contractual relationship;

3.      The employee’s resignation is directly connected to the employer’s conduct; and

4.      The employee does not continue working for too long after the breach in a manner that suggests that the employee accepted or affirmed the employer’s conduct.

These principles are extremely important because many employees do not realise that an employer can terminate the employment relationship without issuing a dismissal letter.

Examples of conduct that may give rise to constructive dismissal include persistent bullying or harassment, humiliation in the workplace, arbitrary demotions, unjustified salary reductions, victimisation, retaliation for complaints, unreasonable disciplinary action, sudden changes to major terms of employment, or conduct that destroys the trust and confidence between employer and employee.

In some situations, employees report being constantly threatened with dismissal, unfairly targeted after speaking up, isolated in the workplace, or pressured to resign voluntarily to avoid liability arising from claims of unfair dismissal.

Employers must understand that while they possess managerial authority, that authority is not unlimited. It must be exercised fairly, reasonably, and in accordance with the Labour Code, the principles of Natural Justice, and good Industrial Relations practice.

At the same time, employees must understand that constructive dismissal claims are heavily dependent on evidence. Therefore, they should document incidents, preserve correspondence, take notes during meetings, and seek professional guidance before resigning.

Javonson Willock Human Resource Consultant Specialist in Industrial & Employment Relations Managing Director | ConsultHIM

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