Constructive dismissal claims are usually based on one of two criteria: the contract test or the reasonableness test. In summary, the contract test determines whether the employee’s departure was caused by the employer’s breach of contract, while the reasonableness test determines whether the employer’s conduct were so unfair that the employee had no choice but to resign.
If it can be shown that “the employer is guilty of conduct that is a serious violation of the contract of employment, or that demonstrates that the employer no longer intends to be bound by one or more of the basic provisions of the contract, then the employee is entitled to treat himself discharged from any further performance,” a constructive dismissal claim might be successful.
The failure of an employer to provide pay and benefits to an employee; downgrading or demoting an employee without valid reasons or agreement; disciplinary penalty by an employer without following the agreed-upon disciplinary procedure; breach of the employer’s safety obligations; unilateral alteration of the contract, such as change of pay may be examples of unreasonable behaviour.
In most cases, an employee must have worked with his or her boss for at least 12 months before filing a lawsuit for unfair dismissal by means of constructive dismissal. Before resigning, an employee should use any available grievances or arbitration procedures. Workplace Relations Commission claims must be filed within six months of the date of termination of employment.