What is constructive dismissal? If you have ever been treated so badly by your employer, that you want to resign, that’s constructive dismissal. The dismissal is constructed out of the negative behaviour of your employer.
An employer who mistreats the employee, in such ways that the employee feels dejected, or rejected, has committed constructive dismissal.
Why do Constructive Dismissal Cases Happen?
Many employers are aware that unfair dismissal can lead to court cases. Most employers do not like going to Industrial Court. They know that, if there is a case of unfair dismissal, they will be required by the court to compensate the employee.
So, rather than firing an employee, and risk being sued for unfair dismissal, employers are ill-treating their employees, and hoping that they will go away.
Maybe they don’t relish the idea of having to carry out a domestic inquiry.
What these employers don’t know is that they are committing constructive dismissal.
They are forcing the employee to leave the company on the employee’s own volition.
“He went away, and we didn’t force him to,” comes the twisted reasoning from the employer.
“He found a new employment. We didn’t sack him.”
Not correct. And not fair.
Sometimes it’s personal vendetta. Someone in management has decided that this employee has to be mistreated, to humiliate him or her.
Sometimes it’s unintentional. Companies sometimes reassign staff to different job roles, not realising that they are “demoting” them.
Sometimes it’s intentional. Companies revise the staff salaries, without any consultation.
Constructive dismissal — you can expect even more of such cases during bad times. These are the times when companies have to become more lean. They do things intentionally, or unintentionally, which cause employees to want to resign.
But some employees fight back. They know how to say, “I’ve been constructively dismissed.”
What are some examples of constructive dismissal?
One of our clients was a sales person. She used to drive her car all over Malaysia, earning sales commissions.
One day, this lady had a accident. A car ran over her foot.
After the accident, the company reassigned her to the company store room. They asked her to sort the stocks.
But the store room was stuffy. There was no fan, air-conditioning, ventilation or even window.
The poor lady suffered from mild asthma and found it difficult to breathe.
She felt frustrated, until she met us. Then she realised that she had been constructively dismissed.
Here are some other cases that might constitute constructive dismissal.
When your employer changes your position to a lower position, effectively demoting you — that’s constructive dismissal.
When your employer re-assigns you to take care of something so trivial or so humiliating that you feel like resigning — that’s constructive dismissal.
When a lady employed by The Royal British Legion was bullied at work, mistreated, and asked by her replacement not to come to work, pending the resolution of several issues she had raised while at work — the court found that she had been constructively dismissed.
When a man called Calvin Clarke was reassigned to a new position, at the Chronicle Herald, and potentially made less money in commissions than in his last position, he attempted to negotiate a new base salary. When it was refused, he quit and filed for constructive dismissal — which was upheld by the court.
So have you been constructively dismissed?
That’s a good question. And we all know, every case is different on its facts.
Maybe you can ask yourself some questions from the list below. The more you find yourself saying “Yes” to these questions, the higher the chance you have been constructively dismissed.
- Have you been demoted?
- Have you been reassigned to a position that is lower than your previous position?
- Has your salary been cut or reduced?
- Have you been asked to do things that you don’t need to do, and to do them regularly?
- Have you been bullied at work?
- Have you been humiliated at work?
- Have you been reassigned to a more challenging work assignment?