ADMS 3420 Lecture Notes - Lecture 6: Condonation, Saan Stores, Constructive Dismissal
26 Jun 2018
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ADMS 3420 – Chapter 15
The Special Case of Constructive Dismissal
Legal Concept of “Constructive Dismissal”
Constructive dismissal is a special branch of wrongful dismissal
oStill involves the employee suing the employer and alleging that they haven’t
been given proper notice
The employer never explicitly says they are fired
Constructive dismissal occurs when:
oAn employer commits a fundamental (serious) breach of the employment
contract (sometimes called a “repudiatory breach
AND
oThe employee responds by treating the contract as having been terminated by
employer (“accepts” the termination of the contract)
The breach causes them to quit because they have no choice
Since the Employer’s breach of the contract effectively terminated the contract, the
employee was entitled to notice of termination
Constructive Dismissal is a form of “wrongful dismissal”, but in which Employer never
says “you’re fired”.
It is a dismissal because the employee was dismissed but is constructive because it
constructed by the judges (legal fiction). The law creates the termination because if the
employer commits a serious breach of the contract and causes the employee to quit, it
is not the employee’s fault and is treated as a termination.
The law of Constructive Dismissal protects employees from two possible scenarios:
oAn Employer who attempts to drive an employee to quit by making work life
miserable, since if an employee quits, the employer need not give notice.
oAn Employer who unilaterally alters the terms of the contract in a significant
manner.
The employer is still the one ending the relationship
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Document Summary
Constructive dismissal is a special branch of wrongful dismissal: still involves the employee suing the employer and alleging that they haven"t been given proper notice. The employer never explicitly says they are fired. Constructive dismissal occurs when: an employer commits a fundamental (serious) breach of the employment contract (sometimes called a repudiatory breach. And: the employee responds by treating the contract as having been terminated by employer ( accepts the termination of the contract) The breach causes them to quit because they have no choice. Since the employer"s breach of the contract effectively terminated the contract, the employee was entitled to notice of termination. Constructive dismissal is a form of wrongful dismissal , but in which employer never says you"re fired . It is a dismissal because the employee was dismissed but is constructive because it constructed by the judges (legal fiction).
