Failing to respond to a complaint of workplace bullying could result in the complainant feeling as though they have no option but to resign. This could result in a constructive dismissal claim against your organisation.

 

WHAT IS CONSTRUCTIVE DISMISSAL?

Constructive dismissal can also be termed as “forced resignation” because it is essentially when someone resigns under duress. This forced or involuntary resignation is usually due to an employer creating an unbearable or untenable working environment.

For example;

  • the employer fails to investigate a bullying or sexual harassment complaint, leaving the complainant in an untenable working environment;
  • the employer dramatically reduces an employee’s hours with the intent for them to be forced to find other employment;
  • an employer changes an employee’s shift times or relocates an employee so that attending work becomes unviable.

 

HOW TO AVOID CONSTRUCTIVE DISMISSAL CLAIMS

  1. Address all complaints: Investigating all employee complaints of bullying, sexual harassment or other health and safety issues, shows employees that you care and want to foster a positive working environment. By investigating and determining the facts of a matter, the organisation will be able to put measures in place to resolve the established issues and better ensure all involved are satisfied with the efforts of the organisation.
  2. Give employees notice of change: It is often a good idea to discuss changes with employees prior to implementing them to ensure attending work is still viable for all involved. For example, before changing an employee’s shift times or number of hours, discuss it with them first. If an employee objects to any changes, negotiate with them until an agreement is reached. If agreement cannot be reached, you may have to consider whether the change will reasonably create an unviable working arrangement for that employee.
  3. Conduct “Exit Interviews”: By conducting ‘exit interviews’, you can be sure that the reason an employee is resigning is due to no fault of the organisation. It is important to keep a record of this interview to prove that you attempted to resolve any issues with an employee before they exited the organisation. If you become aware that the reason for resignation is an issue that is the fault of the organisation, you should attempt to negotiate with the employee and resolve the issue to ensure that their working environment will no longer be unbearable.