I sat down to write this column about an employment issue raised by a book group member. A call interrupted me, asking for urgent help.

The client (we’ll call him Fred) has a warehouse. That morning, his accountant had refused to come in, and had said she would never be back. This was stocktake day, completely upsetting the stocktake.

He told me he wanted her at work immediately. If she was leaving, she could do the stocktake during her notice period.

I asked if she had explained why she was resigning. He read me the letter she’d sent that morning. She said she could not keep working because she believed the workplace was unsafe. She was afraid stock in the warehouse would fall on her during the stocktake.

Fred said she had complained after the last stocktake, and had kept on about it since. He said the warehouse was always like that and he had not done anything. Now in her letter she said she was making a personal grievance claim of constructive dismissal.

Fred was astounded – he claimed the warehouse was safe, though the shelves were high and a bit old and some stock had fallen at times. He asked if he could get her back to work and if she had grounds for her legal claim.

Employers are often confused about their ability to “accept” a resignation. Normally when an employee resigns, they are willing to work out the notice period. An employer cannot refuse a resignation given in the terms of the employee’s employment agreement, including the notice period.

An employee who claims constructive dismissal is saying they are resigning because of unreasonable treatment by the employer. It is, they say, so unreasonable that they can no longer keep working for the employer. If what they say is correct, the employer cannot usually enforce the notice period. Occasionally employees in these situations work out their notice under protest.

I find that constructive dismissal situations are often ignored by employers till too late. Sometimes they are obvious, but more often they come about because the employer hasn’t properly addressed reasonable and serious concerns. The employee then feels they have no choice and have to resign. This isn’t a voluntary resignation because its main cause has come from the employer. In law it is seen as the employer having dismissed the employee.

An employee who has been constructively dismissed may be able to bring an unjustified dismissal personal grievance claim. There are three main types of constructive dismissal:

  • The employer gives the employee a choice between resigning and being dismissed and so forces a “resignation” which is not real.
  • The employer follows a course of conduct with the deliberate and dominant purpose of coercing the employee to resign.
  • The employer breaches its duty to the employee and the employee resigns.

Fred couldn’t see how this applied to him. The accountant didn’t have to work in the warehouse all day every day, but she did have to do the stocktake twice a year over several days.

I told him he was not dealing with the fact that the accountant had asked him a year ago and also more recently to fix the problems, and she was genuinely concerned for her safety. She had also made it clear that she would have to leave if he didn’t act. She had good grounds to leave and she may be entitled to substantial financial compensation.

This week I noticed an advertisement for an accountant to work in a newly refurbished warehouse, immediate start, with an overdue stocktake to complete. The contact details were Fred’s. I feel a claim coming on.

By Penelope Ryder-Lewis, first published in The Dominion Post

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