In this weeks Employment Relations video I cover constructive dismissal and everything you need to know about grievances. The video has timecodes for you to skip to the relevant part.
The video starts with the definition of constructive dismissal and where to find it in the legislation. Then I move on to discussing (in detail) the different factors that one would need to prove to be successful in claiming constructive dismissal. I included numerous real life examples of cases I have done to further explain the points. Of course if you are more experienced with this topic, you might want to skip those.
In the beginning of the video you will see an explanation of who has the burden of proof in constructive dismissals and why this differs from other types of dismissals. You might be wondering why you would care who has burden of proof – but this impacts which party (employer or employee) would need to prove that it was constructive dismissal.
I move on to unpacking what intolerability means and how this is measured. I discuss the subjective and objective test of intolerability, with an example or two to show how this theory is applied in practice.
Something we see often is that practitioners will say that a constructive dismissal claim will be unsuccessful is an employee did not lodge a grievance before the time. Therefore I answer the question – Must an employee always lodge a grievance before claiming constructive dismissal.
I also unpack exactly what a grievance is, what to do if a company does not have a grievance procedure and how to complete a grievance properly so that there is a higher likelihood of your concern / compliant being addressed and it also makes the claim of constructive dismissal more valid if you can show that you lodged a proper grievance and it was not dealt with. Of course that wouldn’t be complete without detailing a few of the common mistakes that people make when completing grievances to help you avoid them.
Finally I discuss the point of whether or not a case can be successful if there was some other alternative avenue that an employee could have taken to attempt to resolve the matter prior to resigning.
And to conclude – importantly for employees who want to claim UIF. I discuss the requirements for this when it comes to constructive dismissal.
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