Constructive dismissal is when an employee leaves a job because the employer behaved in such a manner that destroyed the trust, confidence and respect in the working relationship, thereby breaching the employment contract. Some incidents that lead to constructive dismissal: verbal abuse, demotion without good reason, harassment, discrimination, harsh/unfair treatment, or having salaries reduced/withheld. Although these incidents are fairly common, many employees decline to take action, or they wait so long that it makes it difficult for them to succeed in constructive dismissal cases. It is important for employees to speak up against this treatment- addressing these issues may bring a stop to these behaviours and improve the work environment, or lay the foundation for constructive dismissal cases.
Three tips that employees can follow to effectively address unfair treatment at work:
1. Documentation.
Whenever an employee is confronted with an unfair situation at work, he/she should make a detailed record of it- outlining what transpired together with dates, times and witnesses. It may be worthwhile to send a copy of the report to the manager or the HR/IR department requesting that such behaviour is dealt with and not repeated. It is important not only to keep a written record of what occurred, but also to have a paper trail of the issue being raised with the personnel responsible for addressing it.
(Another common incident of unfairness that requires written documentation is employees receiving unfairly applied disciplinary punishment. For eg. If an employee receives a written warning for alleged misconduct but a proper investigation and disciplinary hearing were not conducted, it is important to respond to the warning, in writing, raising the issue that this punishment came without the proper procedure being followed, and asking that it is removed from the employee file, unless and until there is a proper hearing.)
2. Be Open and Honest.
Many employees become afraid to speak up or convince themselves to ignore the situation, which increases the mental and emotional stress. It is advisable to speak to a manager or someone from the HR/IR department to inform them of the situation and seek their support and assistance. Those conversations should be reduced into writing thereafter and sent to the other party to the conversation via email. Employees should be candid and honest in the communications- expressing exactly what transpired and how it made them feel. If an employee downplays the incident the first time it is raised and then expands at a later occasion, the story may appear to be embellished or even dishonest.
3. Seek Advice and Act Promptly.
If the incident(s) causes the employee to feel that he should leave the company, and no steps are being taken to correct the unfair treatment, the employee should immediately seek legal advice. Constructive dismissal matters are time sensitive- for a constructive dismissal case, the employee must leave the company as a direct result of the harmful or unfair treatment, so if significant time passes before the employee leaves the company, this may weaken the employee’s case. If the employee is advised that there are good grounds to claim constructive dismissal, then the employee’s representative can write to the company either asking them to correct the issue (if it is one that can still be fixed), failing which the employee will consider himself to be constructively dismissed, or if the issue can no longer be rectified, the representative can inform the company that the employee is leaving and considering himself to be constructively dismissed- at which point a matter may be initiated seeking compensation.
Employees must not rest on their rights or be afraid to speak up/take action. If you feel like you are being treated unfairly, especially if it is taking a toll on your mental, emotional or financial wellbeing, seek advice on how best to deal with the situation, whether you hope to resolve the issue and remain at your job, or leave and pursue a case for constructive dismissal.