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Monday, 25 April 2016

Exploring constructive dismissal from work

Brenald Chinyowa
Constructive dismissal is another extension of no fault termination which is defined in Section 12B (3) (a) Chapter 28:01of the Labour Act as considered to have taken place; “if the employee terminated the contract of employment with or without notice because the employer made continued employment intolerable”.
It is any action on the part of the employer which renders the continuation of the employment relationship unbearable for the employee — to such an extent that the employee is left with no other option but to resign.
The employer does not actually dismiss the employee, but the employer’s conduct must be such that no reasonable employee can be expected to put up with it.
So the employee is not formally dismissed by their employer, but is forced to resign because of their employer’s unlawful behaviour.
The employment contract is being terminated by the employee.
Constructive dismissal is an unfair labour practise and all employees falling victim of it can seek recourse at law.
But in order to pursue a claim for constructive dismissal, you must show that, your employer committed a serious breach of your employment contract, you did not accept the breach; and you felt forced to resign because of that breach.
Therefore, the onus is on the employee to prove that the employment relationship was made intolerable by the employer.
Constructive dismissal can result from the following though (not exhaustive): An employer unilaterally cutting or reducing an employee’s pay or salary (including overtime and fringe benefits) or failing to pay the employee. For instance an employer just reducing the salary of an employee from $500 to $450 without any explanation or consultation with the employee. If the employee is no longer comfortable to keep on working whilst getting $450 and resigns, even without being paid can lead to constructive dismissal case.
If the employee leaves employment because of unpaid wages or salary, note this can only be constructive dismissal if it was the sole cause of the resignation. Remember it only become constructive dismissal if you had left the job.
Also when the employer arbitrarily demotes you to a lesser role without reason that is maybe the employee is a manager but tomorrow he wake up a messenger. As long as it is arbitrary and the employee has been forced to leave the job because of that then it is an unfair labour practice.
When an employer changes your job description or duties, working hours and or place of work without your agreement, this amounts to a breach of your contract.
Furthermore a complete change in the nature of your job, that is if the employers breaches your agreed terms of the job and this forces you to leave the job then it become constructive dismissal.
Also constructive dismissal can be in the case where an employer threatens to dismiss the employee for refusing to agree or to accept changes to his or her employment terms and conditions.
It can also result when the employer is making it impossible for the employee to do his or her job effectively.
There are also disciplinary proceedings which are manifestly unreasonable, harassing or bullying that can lead one to decide to leave employment.
Also being forced to work in breach of health and safety laws, including working without proper safety clothing or protective clothing and forcing the employee to work in conditions where health and safety regulations are ignored can fush an employee to resign and this can be classified as constructive dismissal.
It is interesting to note that harassment, or bullying from fellow workers can result in one feeling the need to leave the environment if not being protected by the employer and this can also be classified as constructive dismissal.
Constructive dismissal can also result from seriously breaching the ‘duty of mutual trust and confidence’ – which is implied into every employment contract – such as, wrongly and without evidence accusing the employee of theft or other misconduct without substantive evidence.
Claiming for constructive dismissal can precluded when the employee fail to resign within a reasonable period from the date of the breach, however when an employee accept or waived the breach if the acceptance must, nonetheless, be unambiguous and unequivocal.
But if the employer has done a series of acts (of breach), which individually or in the aggregate constitute a serious breach of contract, culminating in an event that triggers resignation, the employee’s response may be measured from the last incident rather than the first.
Thus, in this case, an employee’s failure to resign after the first act may not constitute an acceptance or waiver.
However, constructive dismissal can at times be hard to prove because you have to show that your employer’s actions amounted to a serious breach of contract forcing you to quit.
It is often difficult to show that your employer’s behaviour was so bad as to make you leave. Therefore, having witnesses and other tangible evidence to back up your claim is essential.
Read more of my articles on The Sunday Mail website (www.sundaymail.co.zw) as I look into Terminal Benefits.
Brenald Chinyowa contributes on www.sundaymail.co.zw and writes in his personal capacity. Feedback email chinyowab@gmail.com Blog: profbrenald.blogspot.com