The difficult part can be establishing that the prospect of continued employment was “intolerable”. The arbiter of the dispute will look at the circumstances at the time of termination of employment and will also consider the reasonableness of the allegation. The last requirement can also prove challenging. If the company has an internal grievance procedure, for example, then the arbiter may ask whether the employee invoked this procedure in an effort to address the cause for complaint. Has the employee exhausted every reasonable option available before arriving at the decision to terminate his/her employment?
Some of these difficulties as well as other difficulties were discussed in a Sunday Times article reproduced on Bregman Mitchley’s website:
Employees would be well advised to exercise caution before electing to resign in the face of seemingly “intolerable??? working conditions.
An employee’s point of view that he has been unfairly treated and made to endure intolerable working conditions is not in itself sufficient to shift the onus.
It is even more difficult when an employee could reasonably have lodged a grievance about the cause of the unhappiness and failed to do so.
A person adjudicating in such a case is required to look at the conduct of the employer as a whole, and to ask whether its conduct, judged reasonably and sensibly, was such that the employee could not be expected to put up with it.
But even if a disgruntled litigant establishes that a constructive dismissal took place, this does not automatically guarantee a successful claim. The courts have determined that a constructive dismissal is not inherently unfair.
Even though employers are then obliged to demonstrate that their conduct was fair, they are usually given considerable scope to show that their actions were justifiable.
Pursuing a constructive dismissal claim can be difficult and it is a good idea to take legal advice before handing in notice. While compensation can be awarded for a constructive dismissal, it is hardly a case of submitting the claim and waiting for the cheque. There may be better alternatives which shift the burden on to the employer to prove why certain conduct is not unfair or there may be other avenues available which can be far more effective than a constructive dismissal claim.
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