How to win a constructive dismissal case

In order to win a constructive dismissal case, it is important to understand three things: 1. what a constructive dismissal is; 2. how the onus of proof works; and 3. what must be established to overcome that onus.

Normally, a dismissal is a unilateral act by the employer which terminates the employment relationship. A constructive dismissal is an exception to this. It involves the employee unilaterally terminating the employment relationship. Despite the act of termination being performed by the employee, it is treated as if the employer has terminated the employment relationship.

In order for a resignation to constitute a constructive dismissal, the employer must have rendered the employee’s continued employment intolerable. This can take a number of forms. Often, it takes the form of the employer embarking on a course of action which makes the employee’s working life unpleasant.

The onus is on the employee to establish that continued employment was intolerable. This is a difficult onus to establish, as the test is objective. The question is whether a reasonable employee in that position would be able to endure the employer’s treatment. If an employee has resigned due to his or her hypersensitivity, and not because there was no option but to resign, the claim will fail.

To win a constructive dismissal case, the employee must also show that all possible efforts were made to resolve the issue. This would often include lodging a grievance or otherwise making the employer aware of the problem, and trying to have it addressed.

Where an employee resigns on on notice (i.e. by providing the employer with notice of termination of employment) rather than resigning summarily (i.e. without notice), this is usually an indication that continued employment was not intolerable. If the employment situation was so difficult, it would normally be expected that the employee would not be able to endure working a notice period.

It is therefore very difficult for an employee to succeed with a constructive dismissal claim, and most employees’ claims are dismissed.

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