Wrongful Dismissal
Employers may be able to fire employees at will or on limited grounds, depending on the nature of their job and the terms of their employment contract. But if they create intolerable work conditions and force an employee to quit, that may be constructive dismissal or “wrongful dismissal.” It’s important for employees to understand the distinctions between these two types of termination. An experienced employment lawyer can help.
Unlike wrongful dismissal, which involves an employer expressly firing an employee, constructive dismissal is a form of retaliation by an employer in response to a worker’s protected conduct, such as reporting alleged workplace harassment, discrimination, or safety violations. Often, employers must make a fundamental change to the terms of an employment contract in order for an employee to claim constructive dismissal. The change can be as simple as reducing an employee’s salary, changing their work location or hours, or demoting them without explanation.
When an employer fails to address concerns related to a hostile work environment, this can also lead to a claim of constructive dismissal. This is because an employer must keep a safe and healthy work environment, and if they fail to do so, it can result in a worker having no choice but to leave. When determining whether an employer created intolerable working conditions, courts take several factors into account. Among other things, they consider:
Constructive Dismissal Vs Wrongful Dismissal
An employer must have intended to cause or maintain intolerable working conditions or have knowledge of them. In addition, the employee must have attempted to resolve the issue with management or someone in a position of authority before resigning. If an employee simply walked away from their job without making any attempts to remedy the situation, they wouldn’t have been entitled to make a claim of constructive dismissal.
In cases of constructive dismissal, an employer can be held liable for damages including lost wages, and additional compensation such as aggravated and punitive damages (depending on the jurisdiction). Workers should know their rights and proactively seek out information on how to protect themselves against workplace bullying or harassing behavior. This includes educating themselves on laws such as anti-retaliation, whistleblower and contractual protections.
The key to proving that an employer acted in bad faith is having sufficient documentation and evidence of the problem, such as emails, phone recordings and other forms of communication. It’s also important for employees to take steps to mitigate their losses by seeking alternative employment as soon as possible in an effort to demonstrate that they were diligent in their efforts to find new employment.
The length of time to file a constructive dismissal claim varies by jurisdiction, state and type of employment. A knowledgeable and experienced employment lawyer can evaluate an employee’s case to determine whether or not they are entitled to recover damages. Contact us to schedule a consultation. We serve clients nationwide from our offices in Oakland and San Francisco.