There are no specific grounds for constructive dismissal as every case is different. Actions by your employer that breach your employment contract and make it impossible for you to remain in your role could enable you to make a constructive dismissal claim. The breach of your contract by your employer could be a specific term of your contract or handbook, such as your rate of pay, or it could be an implied term, such as their obligation to keep certain things confidential.
Some examples of employer actions that might, in some circumstances, count as constructive dismissal may include harassment or bullying, demoting you without following the correct process, discriminating against you unlawfully, or reducing your pay without consulting you. With constructive dismissal, the employee feels that they have no option but to resign, because of the unfair actions of their employer. There is no accurate average pay out amount for unfair dismissal in the UK because every case is different, and the compensation awarded is based on many factors that vary from person to person.
An unfair dismissal calculator tool can give you an estimate for a successful claim. Where entitlements are concerned you must remember that you are required to pay income tax on these as normal. Additionally, when seeking lost wages, you are under obligation to try and mitigate your losses in this situation but trying to find new gainful employment. Any lost wages that are awarded are also subject to income tax.
Where your case involves personal damages over loss of dignity or injury to feelings the payout, if it happens, can vary significantly depending on the impact being unjustifiably dismissed has had.
There may be a contribution to costs ordered by the ERA, this is calculated on a daily tariff and is only a contribution and does not cover the total costs. Where more complex offers are made, or there is an unusual procedure, or the case is particularly severe then the payout may be significantly above or below the average payout for unfair dismissal — NZ employment law is multifaceted and there may be an alternate approach than filing a personal grievance claim. You only have 90 days to bring a personal grievance against your employer, it is best to gather the required information and evidence to support your claim and seek advice from employment specialists to discuss whether or not you have a case to bring against your employer.
If it has been more than 90 days since your dismissal, you may be able to raise a personal grievance but you would require the employer to agree to it, if this is not possible then you can apply to the Employment Relations Authority to be allowed to raise a personal grievance outside of the day period, but this is only awarded when there are exceptional circumstances.
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Difficulties can also arise if you wait too long after the breach has occurred before resigning. Feeling that you have no option but to resign from your employment because your employer is not respecting your contract of employment is a very stressful and upsetting time. While taking legal action may feel like an additional stress, financial compensation may help you while you are getting yourself back on your feet and with paying bills.
Truth Legal specialises in advising people in these difficult situations. If you have no option to resign we can explain what your options are and how you may be able to claim compensation from your employer.
We may even be able to negotiate a Settlement Agreement which means you will receive compensation without the stress of an employment tribunal hearing not to mention the time and costs that this will involve. The exception to this is where the breach of contract is related to another issue such as unlawful discrimination, whistleblowing, health and safety breaches, pregnancy or if the constructive dismissal arises out of you trying to assert a statutory right.
In those situations, the statutory cap does not apply. If you started a new job during your notice period, you must take account of this in a constructive dismissal claim.
In addition, you may be able to claim for your notice period and your loss of statutory rights, amongst other heads of claims. For an example Schedules of Loss, take a look at our free, downloadable documents available in our Legal Library. You must normally have worked for your employer for two years or more to bring a constructive unfair dismissal claim. Compensation for wrongful dismissal will allow you to recover your financial losses, such as pay and commission you would have received during a notice period.
Whatever the problems you are facing at work, you should try and use the internal grievance procedure to resolve things before taking the step of resigning.
However, this does depend upon the circumstances of your situation. Make it clear in your resignation letter that you are resigning because of the breach of contract by your employer.
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