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What is Constructive Dismissal?

What is Constructive Dismissal?

Constructive dismissals occur when an employer acts in a way that is so “harmful, adverse or unfriendly” to the point of damaging the employer/employee relationship beyond repair and the employee is left with no other reasonable option but to resign.

A complicated case which helped to define constructive dismissal was that of Tavassoli v Bupa Aged Care Mosman.

Ms Tavassoli was employed by Bupa for approximately thirteen years as an Assistant in Nursing. She is a refugee from Iran with limited English language skills, a factor which proved important when the Fair Work Commission made its finding. On 16 November 2016, on what she thought was an ordinary day at work, the Acting General Manager of the facility required the Ms Tavassoli step outside the premises for a “quick chat”.

She was escorted from the premises and told that there had been serious allegations made against her.

Ms Tavassoli panicked. She concluded that the allegation might involve an incident in which a resident offered her beer as a bribe for her services. She therefore had a colleague assist her to draft a letter of resignation, which she submitted. It included a notice clause of four weeks.

However, the allegations about her conduct were quite different. Bupa alleged that during 13–15 November 2016, Ms Tavassoli had:

During the meeting with Bupa, the company refused to accept Ms Tavassoli’s resignation, and advised her she would need to participate in an investigation if she did not alter the notice provided on her resignation letter. It also said that available video footage would validate their claims. So, Ms Tavassoli forfeited the four weeks’ notice and Bupa accepted her resignation.

The disastrous effect of all this on a woman in Ms Tavassoli’s position can only be guessed at by most people, She subsequently filed an unfair dismissal application with the Fair Work Commission.

At the subsequent hearing, the FWC held the following:

Moreover, in concluding that Ms Tavassoli had suffered constructive dismissal

    1. Ms Tavassoli was not provided with copies of the allegations and was not provided with time to consider them and to discuss them with her family;
    2. Ms Tavassoli was not provided with a copy of the video footage;
    3. Ms Tavassoli had not resigned of her own free will, given her poor English language skills and her emotional state;
    4. by suggesting an amendment to the worker’s resignation letter, (i.e., striking out the notice clause), Bupa had initiated the dismissal;
    5. Bupa had not acted appropriately in escorting Ms Tavassoli from the premises without providing a sufficient reason for such a process, leaving Ms Tavassoli to draw her own conclusions;

The key takeaway for employers is the first point made by the Commission: namely that : the procedures Bupa followed in relation to Ms Tavassoli’s disciplinary process were unprofessional, discourteous and unfair.

Point by point, employers should;

Contact JFM Law on (02) 9199 8597 if you need advice or have any questions regarding constructive dismissal. If you would rather get in contact through email, send your question through or by email at wehelp@jfmlaw.com.au.

 

The information contained in this post is current at the date of editing – 8 April 2024.

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