Unfair Dismissals

Explaining Constructive and Unfair Dismissals

 

Constructive dismissal (which ends as an `unfair dismissal') is the staging of HR or other workplace processes to remove a worker from his/her employment.  The worker has no choice but to leave.  While not always the case, constructive dismissal usually follows workplace bullying and occurs when there are power imbalances at play and the bullied worker becomes the victim.   

 

The online dictionary defines constructive dismissal as `the changing of an employee's job or working conditions with the aim of forcing their resignation.'

 

Unfair dismissal is where HR departments circumvent processes which on the surface suggest a genuine redundancy but the evidence will indicates that it is an unfair dismissal. 

 

Genuine versus non-genuine reasons for redundancies

 

Some examples of genuine reasons when employers can make employees redundant

 

1. Business closure

 

2. Change management or restructuring to ensure better outcomes for the business

 

3. Performance management outcomes (where an employee does not, or cannot meet their work obligations)

 

Some examples of non-genuine reasons when employers can make employees redundant

 

1. When an employer introduces a change management process and the evidence indicates that this action was taken with the sole aim of changing a position to  disadvantage a worker. For example, an employer can use a `mock' change management process to set up a supposedly `new' position and disestablish the worker's permanent position, then have the worker interviewed and then reject them through the interview process.  The end result is that the employee loses their employment in a non-genuine redundancy.

 

2. When the employer insists that you had been offered various positions before you were made redundant and the evidence indicates that your employer did not offer you a position but asked you to apply for a position. There is a difference. This equates to a non-genuine redundancy.

 

2. When an employer initiates a `performance management' process and the evidence indicates that the worker has been targeted and that the sole purpose of setting up the performance management process is to ensure that the worker ends up with a dismissal.   This is a non-genuine redundancy.

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