Posted on: Jun 12, 2013
In the case study below we look at the circumstances for constructive dismissal and advise the likelihood of a successful personal grievance claim.
Background: I am the owner of a club and bar in downtown Auckland. My night-time receptionist X has brought a personal grievance against my company claiming that she has been constructively dismissed as a result of events on 10 October and following. X has always been a good worker and a popular employee.
Parking outside the club is for club patrons and staff only but certain parks are reserved for management. X was generally able to use one of the “management” parks which is near the bar and she was therefore able to be seen going to the parking place or to be escorted to it. On 10 October, X parked in a manager’s park. X was asked to move her car. X blew up and refused to do so even though staff offered to shift the car for her. I offered to discuss the matter with her the next day. Next morning, X gave me a letter of resignation. There were several people around so I did not discuss the matter with her then. I decided to get some HR advice before I did anything but because the position of receptionist was so important I placed an advertisement on Trade Me. Three days later I received an email from X (X was not at work) stating that she wanted to discuss the matter and wished to retract her resignation. I have already hired a new receptionist. I told her it was too late to change her mind.
Question: Can X bring a successful personal grievance against me for constructive dismissal?
It is necessary to decide if you breached the duty owed to X. In Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW (1994) 4 NZELC (digest) 98, 265;  1 ERNZ 168 the Court of Appeal said it was necessary to look at all the circumstances of the resignation and to consider whether it was reasonably foreseeable that the employee would not be able to work under the conditions. In Jenner v Petone Working Men’s Club and Literacy Institute  NZERA Wellington 181 the Authority said resignations should not be used by employees to get their own way at work.
In this case, X chose not to accept reasonable alternatives or to discuss the matter and left precipitately on her own initiative. You could have chosen to try to convince X not to resign but you were under no duty to do so. You had a duty to consider her request to be reinstated in good faith and it appears that you did so but that reinstatement was not practicable.
It is unlikely that X will have a successful claim for constructive dismissal.
Having said that, every situation is unique and should be carefully considered on a case by case basis. A claim of constructive dismissal can be successful in any of the following situations:
- an employer giving the employee a choice between resigning or being dismissed; or
- an employer following a course of conduct with the deliberate and dominant purpose of coercing an employee to resign; or
- a breach of duty by the employer leading the employee to resign.
If in doubt be sure to run your situation by one of our Associates to see what your particular risks may be. To reduce risk, we often recommend pushing back on a resignation (for 24 hours) if it has been tendered in a heated situation, to allow for a cooling off period before any decisions are made final, however this is not always necessary as seen in the case study outlined above.
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.