Picture this scenario: you walk into your office, ready to start your day. Out of the blue your employer informs you that they have changed your responsibilities, substantially reducing your workload and role. You receive a corresponding reduction in compensation related to the reduced duties.

You struggle emotionally; you feel betrayed. You quit.

You chose to leave your job… didn’t you? In some situations, like that described above, it may actually be a case of constructive dismissal where the employee was essentially forced to quit or resign because of the actions of their employer.

In these situations, what recourse do you have under the law?

What Is Constructive Dismissal?

Constructive dismissal describes situations where the employer has not directly fired or terminated the employee. Rather the employer has failed to comply with the contract of employment in a major respect and/or unilaterally changed the terms of employment without the employee’s consent.

As such, a Constructive Dismissal may arise under a variety of circumstances including, but not limited to, when there are unilateral alterations in an employee’s:

• Job role (e.g. demotion)
• Responsibilities
• Reporting functions
• Working conditions
• Pay and remuneration and/or
• Hours of work

Further, Constructive Dismissal may arise where an Employer invokes a:

• Forced leaves of absence
• Layoff without prior authorization
• Suspension without pay and/or
• Where a toxic work environment arises due to, for example, harassment, bullying, or abuse and the workplace and/or the working relationship becomes so intolerable that the employee is forced to leave.

What Can You Do If You’ve “Quit”?

If you’ve been ‘forced to quit’, speak to an employment lawyer immediately.

Explain to the lawyer what happened and why you left.

The lawyer can provide guidance and advice on next steps which may include sending a letter on your behalf, rescinding your resignation and/or making a claim for constructive dismissal.

The sooner you can do this, the better in terms of your legal options.

It is important to note that there is a reverse onus on constructive dismissal cases: that is, it is up to the employee to prove that a constructive dismissal has occurred. As such, ideally, the affected employee will have evidence to support their claim, such as:

• Notes on meetings they had with their employer;
• Notices regarding any fundamental changes that occurred; and
• Emails to and from your boss and/or HR.

If your claim of constructive dismissal is valid, legal counsel may be able to help negotiate an exit with your former employer that includes an appropriate severance or, if that is not possible, pursue a claim through the courts.

If You Haven’t Quit Yet…

Hold off until you speak to an employment lawyer but do not delay doing so.

This way, you can access advice on whether or not your situation amounts to a constructive dismissal and the strengths and weaknesses of your claim before making any hasty decisions such as ‘quitting’.

Time Is Of the Essence

Timing is important here: as you have to consider the issue of condonement. By continuing ‘as is’ in the workplace the employee may be indicating his/her acceptance of the new conditions of employment.

A lawyer will be able to provide advice on how you can “indicate non-acceptance” of the imposed terms and, if need be, how to position your departure from the company.

So, if you think you’re being forced out the longer you continue to work, the fewer options you may have. “If the workplace was so toxic, why did you stay for a year?”, “If these changes were so bad, why didn’t you look for another job?”

Do not accept any changes; do not sign anything; and speak with a lawyer about the changed conditions asap.

Constructive dismissal claims are not black and white; there is a whole world of grey with which to contend. Speak with an employment lawyer to understand your rights and risks before making any drastic decisions.