Claiming constructive dismissal

Should an employee be resigning and then claiming constructive dismissal?

It is not uncommon for an employee facing an investigation to resign, thereby avoiding the investigation, and later down the track to raise a personal grievance on the basis that they were constructively dismissed.

Bridget Jones was employed by Waste Management NZ Limited. She was being investigated, however, before the conclusion of the investigation she resigned.

Waste Management NZ Limited, her employer, had commenced an investigation into GPS data obtained from her company car. The Employment Relations Authority agreed with Bridget Jones, that she had been constructively dismissed, and awarded her $20,000 in compensation and approximately $11,000 to reimburse her for lost wages.

If you are facing an investigation at work, it is not wise to resign and claim constructive dismissal – as the case of Waste Management NZ Limited v Bridget Jones [2020] NZEmpC 73 makes clear.

Waste Management NZ Limited appealed the decision and succeeded on appeal in the Employment Court.

The Employment Court applied the legal principles for constructive dismissal, which are set in an old and well-established case – Auckland Shop Union v Woolworths.

There are three broad categories of constructive dismissal. Bridget Jones argued two of those categories: that either Waste Management had followed a course of conduct with a deliberate and dominant purpose of coercing the employee to resign or the company had breached a duty owed to her, it was a serious breach, and it was reasonably foreseeable that she would resign as a result.

Waste Management NZ Limited succeeded in defending the claim for constructive dismissal because the Court concluded that neither of the categories of constructive dismissal that Bridget Jones relied on were established on the facts.

This case is a timely reminder that the bar for claiming constructive dismissal is set high and not always easy for an employee to cross.

If you have any questions or queries in relation to this topic, please get in touch with the Watermark team directly. We are happy to advise you.

Simon Greening