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Resignation could come back to bite

THE DOMINION POST - Saturday 26 March 2011


Can you resign and then say that you were fired? The answer is yes if you are “constructively dismissed”. Here an employee resigns and argues that they were really forced out or dismissed.

Mr Todd Douglas, an employee of BA Logging, was deliberately hit in the face by a colleague with a safety helmet. His employer was more concerned about the safety helmet and productivity than the assault, and told the victim to “harden up.” The problems arose when Mr Douglas, a tree feller, used what he believed to be a rag to wipe some grease off his hand. The “rag” was actually his workmate Shane’s jersey. Shane took offence to Mr Douglas using his jersey to wipe his hands and swore at him and then hit him on the head with a safety helmet. Mr Douglas was left with a lump on his left eyebrow, concussion and suffered from reoccurring headaches as a result of the attack.

On arriving home from work Mr Douglas sent a text message to his boss, Mr Brendan Adcock, to tell him what had happened. Mr Adcock replied: “there aint much can do mayb you should have used rag instead of his top still no reason to throw things around hope hat ok and not broke start costing money.” The following day Mr Adcock said he was going to discuss the previous day’s events with Shane. Mr Douglas gave evidence that when Mr Adcock spoke to Shane, he could see them pointing at him and laughing. Mr Adcock said that if Shane hit Mr Douglas again it would be a police matter. When Todd complained that Shane should have got a warning, his boss replied: “yes I know but way it is you may have to harden up a bit and I will put something on paper and send out with the pay slip to him we not making money biggest problem to me.”

In the end Mr Douglas resigned and brought a personal grievance for unjustified dismissal, humiliation, loss of dignity and injury to feelings. The Employment Relations Authority commented that the employer had treated the matter with “disdain” and has not meaningfully discussed the matter with Mr Douglas or taken any meaningful action in respect of Shane. The Authority found that Mr Douglas’ resignation was in fact a “constructive dismissal” because of multiple breaches to the employment agreement. The Authority ordered the employer to pay Mr Douglas $24,750 in lost wages and $10,000 as compensation for humiliation, loss of dignity and injury to feelings.

In another constructive dismissal case, the complainant Mrs Jacqueline Weston carried out clerical and administration work for Advkit Para Legal Services Advkit, a company that represented ACC recipients at reviews and appeals. The business was run by Mr and Mrs Dixon-McIver out of the family home. One of Mr and Mrs Dixon-McIver’s adult sons, Kirk, had a mental condition and lived at home. Because of previous difficulties between Mrs Weston and Kirk, he was usually kept out of the office space while Mrs Weston was around. One day a dispute arose over Mrs Weston’s use of the fax while Kirk was on a telephone job interview. Kirk physically attacked Mrs Weston, pushing his fingers into her face, wrenched her head, twisted her glasses and then slammed her head against the wall all while subjecting her to a torrent of verbal abuse. Mrs Weston was physically attacked three more times by Kirk as she tried to escape him.

During the following days both Mr and Mrs Dixon-McIver appeared to show little sympathy or concern towards Mrs Weston for Kirk’s assault on her. Mrs Weston gave evidence that when she tried to tell Mr Dixon-McIver that he had a duty to keep her safe in the work place and was responsible for the assault by Kirk, Mr Dixon-McIver screamed at her: “You fucking stupid cow, if you had been adult enough to sort out your problem with Kirk none of this would have happened”. She also claimed that he screamed: “if he had not hit you I would assault you myself”.

The Employment Court found that the actions of Mr Dixon-McIver constituted a serious breach of duty to provide a safe work place and not be abusive to an employee; this amounted to a serious breach of the employment agreement which made Mrs Weston’s resignation reasonably foreseeable. This combined with blaming her for Kirk’s assault made it likely that she would be compelled to resign. The Court awarded Mrs Weston three month’s ordinary time remuneration less 10%, $6,750 for distress, humiliation and costs.

Resignation by an employee can amount to a “constructive dismissal” if:

(a) the employer gives the employee a choice of resigning or being dismissed; or

(b) the employer follows a course of conduct with the motive of forcing the employee to resign; or

(c) a breach of duty by the employer causes the worker to resign. The breach must be serious enough that an employer would foresee that a resignation was likely to occur.

Most constructive dismissal cases are of the first or second type. Where the employer has essentially decided to get rid of the employee and sets about doing that. Interestingly, both cases I mentioned in this article are under the third category. The employer may not care whether the worker resigns or not. Indeed, the employer may say that they would like the worker to continue working. However a breach of duty by the employer is such that it is reasonably foreseeable that the worker would not put up with what had occurred and would resign.

Employers beware, your resigning employee may come back to bite with a personal grievance if your conduct led to the resignation.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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