Constructive Dismissal Is Unfair Dismissal

Shameela Winston | Monday March 30, 2020 19:10

And many only got away with it because the employee was too professional to pursue a case of unfair dismissal. But it doesn’t mean that because you have become accustomed to traumatise people out of their jobs, that it is ok, or that you are very clever. It is bad practice on your part and brings you litigious risk.  

We are talking in this series about disciplinary policy and practice, and last week we looked at the overall importance of using these policies in good faith instead of trying to manipulate the employee through a convoluted set of allegations of misconduct or poor performance just so you can justify a dismissal. When we talked about that practice, of manipulating circumstances to set up a dismissal, we also looked at the concepts of fairness through the process of discipline. Because most of the time (to be honest) dismissals are constructive, let us perhaps start off talking about that before we go to defining policies. 

Constructive dismissal is a situation where the employee is forced to leave not because they want to, but because of the employer’s conduct, where the environment becomes so increasingly and pointedly toxic that the employee cannot function and is forced to leave. What does that mean, exactly? Let us consider examples. When my employer recruits someone else and channels my assignments to that new person, with no previous agreement with myself, for instance, it means, my employer is telling me that I have no role in the team. Even if I ignore the deferral of my work to someone else, the climate I would be working under, where I feel minimised and excluded would not be conducive to my productivity and continued employment. 

Sometimes, after another person is given my portfolio without consultation with me, without any previous expression of concern at my alleged poor performance, without any formal arrangement as to whether I am being demoted or redeployed, and whether the changes affect my income, yes, sometimes, I walk into the workplace to find that these kinds of changes have been made and it seems the employer is ‘waiting’ for me to approach him or her to ask about what is going on. If I do approach, the response could be stonewalling, you know, just avoiding me and creating loads of red-tape to avoid meeting me, or just ignoring my emails, or accepting appointments only to ask the secretary to call and reschedule. 

I get excluded from team meetings where I used to attend. I am taken off project teams that I participated on. The new person replaces me, or the project/team is disbanded. Stuff is done to make me feel deleted, emotionally and psychologically harassed, professionally embarrassed, uncomfortable, unwelcome, unwanted. And if I am thick-skinned enough to sit through it, things will escalate to a point where even colleagues, I mean both peers and juniors, start to show their alignment in the matter of myself and the employer. Increasingly communication becomes nasty and, I feel so isolated and persecuted that I find no other option but to resign. 

And when I do, I am told I don’t have to serve the notice period. I can leave immediately. If I don’t resign, that is when the employer starts to set traps and look for any possible wrong that I may have done to warrant a disciplinary hearing to set up my dismissal. And if nothing wrong can be found, then colleagues are increasingly involved in the battle to push me out, and they start to withhold important information so that whatever assignment I may have to work on is compromised, so that I can be charged with poor performance, or gross negligence, and be fired. 

The above example of constructive dismissal is just one instance of how the environment can be shifted to create negative energy against an employee, forcing him or her to resign. Sadly, just like other forms of workplace bullying, constructive dismissal is a very common reality in organisations. It is very important to know that, while you as the employer may achieve your short term goal of removing the unwanted employee from the job, if the employee submits the case to mediation and produces enough supporting documentation, you would be found guilty of, and penalized for, unfair dismissal. Constructive dismissal is unfair dismissal and it is not good practice. 

Having said that, let me end this with an invitation to find me at  shameeladashboard@gmail.com with your comments. And in the meantime, let me acknowledge the ongoing challenge we are facing as a nation to contain the threat of the corona virus. Please do your part to manage the risks. The authorities have given us clear guidelines and directions to follow. Do the right thing for you, for your organization, for your country. Stay well and be blessed bagaetsho.