How to Prove Constructive Dismissal

When an employer (1) unilaterally makes a change to an express or implied term of the employment contract that a reasonable person in the shoes of the employee would view as substantially altering an essential term of the contract, or (2) otherwise acts in a manner that would lead a reasonable person to conclude that the employer no longer intends to be bound by the contract, the employer commits a repudiation of the contract, which entitles the employee to consider himself or herself constructively dismissed and to claim damages in lieu of reasonable notice.

 

In either case, when the burden of proof is on the employee, they need evidence that an employer's actions were breaching the terms of the contract.

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Examples of circumstances that may amount to a breach of contract enabling an employee to leave and claim Constructive Dismissal include:

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• Unexpected reductions in pay, or not being paid when expected, without any reasonable explanation or notice, and certainly without the employee’s consent.

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• A sudden demotion without reason.

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• Unfair and unfounded allegations of poor performance.

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• Unreasonable disciplinary procedures where an employee is not being provided with any real chance to defence his or her case, and that the employee is being suspended from work duties without any real investigation into the alleged misconduct of the employee.

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• Forcing employee to work in breach of health and safety laws, potentially risking their own health, and when the employee refuses to do so, he or she was penalized, e.g. wage reduction, demotion, withholding wages earned.

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• A complete change in the work duties, and or working hours without the consent of the employee.

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Employees need to demonstrate the breach has occurred, whereas employers need to show this isn’t the case and a resignation was voluntary. Either way, resigning is something that should not be done lightly. You are strongly advised to seek legal advice from an experienced employment lawyer before taking that final step.