C&A Friedlander Attorneys

In this thought-provoking article, we delve into the intricate web of workplace dynamics, focusing on three critical aspects: constructive dismissal, the harassment code of good practice, and the pursuit of a positive work environment.

Constructive Dismissal Unveiled

Constructive dismissal is a complex yet crucial concept in employment law. It occurs when an employee resigns due to the employer’s conduct, which has made the continuation of employment intolerable. This conduct could range from a significant breach of contract terms, such as non-payment of wages, to persistent unfair treatment.

For an employee to successfully claim constructive dismissal, they must prove two key elements. First, that the employer committed a serious breach of contract. Second, that they felt compelled to resign because of that breach. It’s important to note that the employee must resign promptly after the breach. Delayed resignation can be interpreted as acceptance of the breach, weakening the employee’s claim.

From the employer’s perspective, defending against a claim of constructive dismissal involves demonstrating that there was no breach of contract or that the employee resigned for reasons unrelated to the employer’s conduct. Employers should be aware that actions such as unilateral changes to the contract, bullying, harassment, or consistently ignoring grievances can potentially lead to a claim of constructive dismissal. In the face of workplace challenges, it is crucial for employers to take note of this: should an employee bring forth any issues, it is of utmost importance that such issues are formally recorded. Demonstrating a clear attempt to remedy the employee’s issue serves as a proactive measure in negating claims of constructive dismissal.

The implications of constructive dismissal for employers are significant. If a claim is successful, it can lead to financial liabilities in the form of unfair dismissal compensation. Moreover, it can damage the organization’s reputation, affecting its ability to attract and retain talent.

Therefore, it’s crucial for employers to foster a positive work environment, treat employees fairly, and promptly address any grievances. This not only reduces the risk of constructive dismissal claims but also contributes to a more productive and harmonious workplace.

Harassment Code: Beyond Sexual Harassment

The new Code of Good Practice in the Prevention and Elimination of Violence and Harassment in the Workplace transcends sexual harassment. It addresses all forms of mistreatment that impact employee dignity, irrespective of the grounds for unfair discrimination. The code is a comprehensive guide that sets out the responsibilities of employers and employees, providing a framework for preventing and addressing workplace harassment. It is crucial for employers to implement this code to foster a respectful and safe work environment, and for employees to understand their rights and responsibilities under the code.

The Code of Good Practice on Harassment serves as an excellent starting point when determining whether the conduct of an employer or a fellow employee warrants a constructive dismissal claim. It provides clear guidelines on what constitutes harassment and how it should be addressed. If an employer or fellow employee’s behaviour falls within the code’s definition of harassment and the employer fails to address it, this could potentially create an intolerable work environment, leading to a constructive dismissal claim. Therefore, understanding and adhering to this code is not only essential for maintaining a respectful and safe work environment but also for protecting oneself from potential legal disputes.

A harmonious work environment is essential for employee well-being and productivity. Discover practical strategies to foster positivity, prevent victimization, and promote fair labour practices. From transparent communication to equitable treatment, we delve into actionable steps for employers to create a positive work environment.

Navigating workplace challenges requires a comprehensive understanding of employment law and a commitment to fostering a positive work environment. If you need assistance with any constructive dismissal disputes, drafting or updating harassment policies, or assessing your employee well-being, please do not hesitate to contact us. We are happy to assist or represent both employers and employees in these matters. Our team of experienced employment law specialists is here to help you navigate these challenges and create a harmonious and productive workplace. Let us help you build a better future for your workplace.

Written by Robyn Jacobs

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).