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Constructive Dismissal

Constructive dismissal cases are rarely straight-forward. Before filing a claim, you should be well informed about the issues involved.

Constructive dismissal cases are rarely straight-forward. Before filing a claim, you should be well informed about the issues involved. Read this infosheet along with JobWatch’s ‘Unfair Dismissal’, ‘General Protections Dispute – Termination claim’ and ‘Notice of Termination’ infosheets which give you information on how to make a claim. Before you leave your job, seek further assistance from JobWatch, your union, or a lawyer.

Constructive dismissal means that even though your employer did not say you were fired, the employer’s behaviour forced you to leave your employment. In this situation the termination of your employment may be at the initiative of the employer.

If your employer tells you that you have been dismissed, it is very clear that the termination of your employment was at the initiative of the employer. However, in some cases an employer may not say ‘you’re sacked’, but may still force an employee to leave because of the things the employer does or fails to do. That is, an employer may treat an employee so badly that their conduct fundamentally breaches the employment contract between the employer and the employee, leaving the employee with no reasonable option but to leave their employment. This is what is known as a ‘constructive dismissal.’

A constructive dismissal arises if you can show, on the balance of probabilities, that you did not leave your employment voluntarily but that you were forced to leave because of your employer’s conduct.

However, just because you may not like your employer’s conduct does not mean that you will succeed with a constructive dismissal claim. It is a high threshold to show that your employer’s conduct fundamentally damaged the employment relationship between you and the employer for the purpose of a claim based on constructive dismissal.

You must be able to show that your employment was terminated ‘at the initiative of the employer,’ not because you decided to voluntarily resign.

Note – A constructive dismissal argument is put as part of an unfair dismissal or General Protections Dispute – Termination claim or as part of an underpayments claim (for termination payments). It is not a separate legal claim.

For more information about constructive dismissal, important actions you should take, and your rights, download the fact sheet.

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Call our Telephone Information Service on Melbourne Metro (03) 9662 1933 or Regional Victoria, Queensland and Tasmania on 1800 331 617.

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