Wendy Macphail Employment Law Services

I am often asked ‘What is a constructive dismissal?'

A constructive dismissal is where an employee has actually resigned, but the resignation is considered to have resulted from pressure, coercion or some conduct of the employer that gave the employee no option but to resign.

An obvious example of a constructive dismissal is where an employee is given the option to resign or face dismissal. Such an approach is often used in cases of serious misconduct such as theft. The employer offers the employee the option to resign, thinking they are allowing the employee to save face. Unfortunately, such employers often find themselves defending a constructive dismissal claim.

Other examples of where an employer's conduct may result in a constructive dismissal claim arise when an employer unilaterally alters an employee's terms and conditions of employment or undertakes some sort of disciplinary action the employees feel is unjustified and trumped up in an attempt to get rid of them.

So what can an employer do to protect themselves from constructive dismissal claims? The answer is simple; ensure any proposed alteration to an employee's position or any action involving disciplinary/performance issues are carried out in a procedurally fair manner.

A procedurally fair manner includes: Providing the employee with all relevant information prior to any meeting; allowing the employee sufficient time between receiving the information and the meeting to consider and prepare a response; informing the employee in advance of all the possible outcomes of the process, including dismissal if appropriate; encouraging the employee to bring a representative or support person to the meeting; listening to the employee's explanations in an unbiased manner prior to making any decisions about the matter.

The information in this article is not intended to replace professional advice. It is always advisable to seek professional assistance when dealing with employment matters, before taking any action. Wendy Macphail operates an employment law and HR consultancy in Mount Maunganui and can be contacted at wendy@employmentlawservices.co.nz or by phone 07 574 2360.