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One of the many challenges employees face in the workplace is resigning due to subtle pressure and stifling working conditions enabled by either the employer or co-workers. Such a scenario will lead to possible unemployment without due compensation.
While it is within the rights of every employer to dismiss an employee for justifiable reasons; acting in an unruly way to get an employee out the door is regarded as a forced resignation. Such an employee can seek redress by applying for a constructive dismissal either to get financial compensation or to achieve reinstatement to their old jobs.
If you are currently facing a case of forced resignation and are uncertain of your options, seeking professional help is the best route. Never resign until you get advice on what your options are.
A Whole New Approach (AWNA) will help ensure get the redress you seek. Still in doubt, here are some examples of forced resignation and constructive dismissal enquires we have received.
Constructive dismissal: Getting forcefully resigned
In the workplace, constructive dismissal refers to an involuntary resignation by an employee based on the conduct of either the employer or coworkers. What this means is that even though the employer did not categorically dismiss such a person, they can lay claim due to the fact they had to resign owing to unfavourable working conditions.
To prove a constructive dismissal, an employee must be able to show:
- A serious breach of their employment contract and
- Prove they have resigned because of the conduct of either their employer or co-workers and not because of other reasons.
Examples of what constitutes constructive dismissal and forced resignation.
- Not being paid your agreed salary amount without a valid reason. Being bullied or discriminated against by co-workers.
- Raising a complaint that the employer refuses to look into.
- Being excluded from activities in the company. For example, if it concerns your assigned task at work.
- Intentionally being set up for failure by either your employer or co-workers.
- making unreasonable changes to working patterns or places of work without an agreement.
- Insisting on optimum performance without accompanying work tools or environments.
Forced resignation & constructive dismissal examples.
Green V town of East Heaven
Green worked at the East Heaven police department from about 2001-2014. In 2012, Jennifer ward was hired in the records department to replace Green’s retired coworker. Green was 58 in 2012 while the newly recruited Ward was 30. She believed after Ward was hired, the EHPD chief, Brent Larabee and supervisor of the record department, lieutenant David Emerman started creating her in a way that was geared to forced her to resign. She alleged she was discriminated and questioned unduly while her colleague Ward was favored. Things grew uglier when Green was discovered by the chief to have taken a canister of biscuits from the communal refrigerator and a basket, she intended to borrow for her home party. She was offered to resign rather than face the consequences of her actions and she did. Green argued her case was a true case of constructive dismissal as she wasn’t ready to resign but had to due to the pressure mounted on her by her superiors. Seeing that she was already discriminated against, it seems logical to resign rather than fight.[1]
Tchankpa v Ascent retail group Inc
In the case of Tchankpa, he suffered a serious shoulder injury while employed by Ascena Retail Group. He started working for the company in 2011. He was working as a database manager. One of his job descriptions includes carrying laptops to and fro the office. He claimed he got the injury in December 2012 but sought medical treatment for shoulder pain in October 2012. He also didn’t report this as a work injury until May 2013.
His injury impeded his daily routine and he kept working with opportunities to go for treatment from the workplace. His supervisor, Patel made it mandatory for him to get a medical documentation to work from home. After a heated argument with his supervisor, his boss told him he could quit if he was unhappy with the terms.
The root of the matter lies in the treatment he received after his injury. He alleged he was forced to resign and his offer of working from home three times a week was rejected; infringing on his disability rights. Tchankpa did not provide documentation summing up his medical restrictions for months and no documentation rationalized why he had to work from home. After he provided a doctor’s note, he resigned before the company could respond to his demands. At the end of the day, it was agreed that Tchankpa was not legible for a constructive dismissal claim as he already resigned before the company could deal with his demands. Also, they argued he was using his situation as a tool to blackmail his employers to fulfill his demands. [2]
Rayborn v Bossier parish school
Rayborn worked as a nurse at Parkway High School within the Bossier Parish School System (“BPSS”). Her kids also attended the school and she received the highest performance review for her service. In 2011, a diabetic student, HDC, committed suicide because of her classmates’ bullying. As the school nurse, Rayborn had worked closely with HDC to monitor her diabetes and provide her with medical care. She was thorough with her job and kept a record of her interaction with the deceased.
Rayborn testified that she recommended to BPSS’s 504 coordinator 1 that HDC receive special accommodations, but her suggestion was ignored. Sometime before the suicide, HDC informed Rayborn that she was uncomfortable receiving a profile in the school’s yearbook as a student with a disability. Rayborn passed HDC’s concern along to the administration, and HDC was not required to participate in the yearbook’s plan. HDC’s teachers received emails from Rayborn, reminding them of HDC’s health plan and instructing them to print a hard copy of the plan for substitute teachers. About a week before HDC’s death, Rayborn treated HDC for high glucose levels. Rayborn took notes of all of her interactions with HDC.
After helping the child’s parent with their suit against the school. She was subsequently excluded and finally transferred from the school. However, it was argued that Rayborn was not constructively dismissed as her transfer did not take the shape of a demotion. Finally, her claim was upheld as it was believed her transfer amounted to a demotion as she lacked tools to work effectively in her new work place. [3]
Wrapping up
If an employee believes they have been constructively dismissed and the dismissal was harsh, unjust, or unreasonable, such a person can lodge an Unfair Dismissal (Form F2) with the Fair Work Commission. An unfair dismissal application must be lodged with the Commission within 21 days after the unfair dismissal takes effect or else it is regarded as thanks. If you are an employee interested in learning available options in a constructive dismissal claim and unsure of how to handle the complexities of such a process, you can speak to a professional workplace advisor who can guide you right. A whole new approach is your best bet. We can help you lodge your application and get the best compensation you deserve.
Remember to never resign until you get advice on what your options are.
At A Whole New Approach, we’re not lawyers — we’re Australia’s leading workplace advisors. We’ve helped thousands of employees with their workplace disputes and problems.
Let’s talk about what’s happening and help you explore your options. We offer free, no-obligation consultations and handle a wide range of industrial relations matters — from unfair dismissal and forced resignation to adverse actions and workplace investigations.
Reach out now to explore your options — or give us a call on 1300 766 700.
