When an employee resigns from his/her post in employment involuntarily, it gives rise to a constructive dismissal. For the resignation to be considered involuntary, the employee must provide evidence that it arose because of unreasonable acts by the employer. Unfair Dismissal Act section one describes the unfair dismissal as the employee’s contractual termination with his employer (The South African Labour Guide n.d.). The termination can be done with or without giving a prior notice. According to Sheehan (n.d):
“because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer...”
Eligibility Requirement for Constructive Dismissal
According to the Unfair Dismissal Act, the following conditions must be met for a constructive dismissal to be admissible.
a) The worker must have been in employment with the disputed employer. The terms of employment are irrespective.
b) The applicant must have been employed on contractual basis until his/her dismissal. He/she must have been in continuous service for one year with the employer. A waiver is given in case one is dismissed on matters relating to pregnancy, activities of trade union or attempted exercise or exercise of the employee’s protective legislation rights (Prichard 1995). The service of an employee is also considered continuous when the following reasons led to interruption. Sickness, strikes, absence occasioned by protective leave, lay off periods, dismissal, and immediate re-appointment within 6 months (Sheehan n.d).
Burden of Proof
An employee has to justify that the actions of the employer led to her resignation. The employee must show that all avenues of resolving the ensuing dispute had been exhausted before resignation. The employee must show that his/her grievances had been brought to the attention of the employer who did not act according to the terms of their engagement. The proof by the employee that the employer failed to act according to the procedures will be appropriate to uphold the constructive dismissal application (Privacy rights Clearinghouse 2012).
Analysis of Ms. Indiscreet Constructive Dismissal Application
Ms. Indiscreet application for constructive dismissal is justified. She had been working for the company for over ten years at Dillydale Accountants LLP. It shows that she can claim to have been on a contractual agreement with the company for ten years. Though she had not been working continuously for the last one year, her reason for interruption is justified by the unfair dismissal Act that gives a waiver for persons who had disrupted their services due to sickness and pregnancy (The South African Labour Guide n.d.).
She can also proof that the she had exhausted all avenue of addressing the grievances within the institution. The company management had also created a situation within the workforce that had rendered the continuation of her employment unattainable giving her no other option but resignation. As in the case between Pretoria Society for the Care of the Retarded v Loots , Ms. Indiscreet can proof that there had been no other motivation for resigning apart from strained employment relationship. The strained employment relationship had resulted from the unacceptable conduct of the employer (Privacy rights Clearinghouse 2012). Ms. Indiscreet is justified to apply for constructive dismissal based on the unattainable working conditions resulting from the Ms. Chatterbox actions of spreading her pregnancy news to the workforce. It is regarded as invasion of privacy as Ms. Indiscreet had requested for the news to be kept as a secret. The Human resource Department failed to obey the privacy of Ms. indiscreet as guaranteed in the Privacy Act. The Act warns against disclosing personal information about an employee without prior permission. The Act also warns against e-mail and telephone monitoring. If the employer realizes that the information being relayed is personal, he/she should stop monitoring the telephone or e-mail (Moffat 2010). It is the information Ms. Chatterbox used to embarrass Ms. Indiscreet.
Ms. Indiscreet is justified since she tried to use all the avenues available to resolve the dispute by applying for transfer to another branch. Ms. Chatterbox denied this request even though there was an available position at Sheffield office. The working environment at Barnsley was no longer conducive for Ms. Indiscreet due to actions by the employer and hence the conducts of the employer justified a constructive dismissal.
Dealing with grievances and the requirement of the Acas Code of Practice
The Acas Code of practice is designed is designed to support employment relations and Human Resource excellence within organization. It outlines the principles and guidelines that should be followed when dealing with grievances and disciplinary situations in an organization. The head of Dillydale accounts LLP should be aware of the principles and guidelines in order to ensure that disputes and grievances are resolved amicably. The Acas advocates that the employer and the employee should strive to resolve grievances and disciplinary issues at the workplace as solving grievances at this stage is less time consuming. It is also likely not to damage the employment relationship.
The organization reserves the responsibility of ensuring that positive employment relationships are maintained. It will prevent and minimize grievances and disciplinary cases within the organization. Some of the things that the Head of Dillydale should do to ensure positive employment relationship should include:
- The organization should Show the employees clear leadership. As well, they should let the employees know how to contribute.
- The organization also has a responsibility of engaging the employees in their work and empowering them to make certain decisions rather than controlling them always.
- The organization management should always show appreciation and respect to the employees.
- The organization management should also give the employees means of airing their concerns and views (Acas n.d.).
The above actions may not eliminate the possibilities of grievances within the organization. As the head of Dillydale accountants LLP, the following Responsibilities of the employer to the employee should be put in place while dealing with workers grievances.
Establish Facts about each Case
These should be done by carrying out all the necessary investigation on the matters relating to the case. It may take whatever form as provided by the employer. The employer should ensure that he collects evidence without harassing the employee in order to avoid more disputes. Actions taken against the employee at this stage should be brief. For example, if during investigation it is required that the employee’s pay be suspended, it should be very brief (Acas n.d.).
Holding a Meeting with the Employee
In case of any grievances, the employer should plan for a formal meeting with the employee. The employer should ensure that the meeting takes place as soon as possible. The employer also has a responsibility of ensuring that all the parties involved attend the meeting.
During the meeting, the organization should give the employee who has grievances time to explain herself and how she thinks the problem can be resolved. If a decision cannot be reached during the meeting, adjournment should be proposed. It allows investigation and consultation where necessary (Acas 2012).
Allowing the employee the right to be accompanied when attending the meeting
The employer should also ensure that the statutory right of the employee to have a companion during the meeting is given. A worker may choose a colleague, a representative of the trade union or a trade union employee. However, the worker must make a written request to the employer requesting for this provision. The employer should give the companion time to address the meeting (Goldstein 1998).
Making Appropriate Decision
The employer reserves the right and the responsibility of making the appropriate decision. Once a decision is made, the employer should inform the employee in writing. It should be done without unnecessary delay (Ranken 2009). The employer should also inform the employee on the action the organization plans to take in resolving the matter. The employer should also inform the employee that he/she has the right to appeal the action (Ranken 2009).
Giving Employee the Right to Pursue Further Avenues of Resolving the Matter
If the worker is not satisfied with the decision, the employer should give him/her the right to appeal or pursue other means of resolving the grievances. Also, the worker should inform the employer of her/his decision to take further actions. It should be done in writing (Acas 2012).
Other responsibilities of an employer includes acting consistently and allowing mediation at whatever stage of addressing workers grievances (Acas n.d.).
Discrimination and Harassment Acts
The rights for an employee not to be discriminated against are guaranteed under the equity law. Different countries have a variety of laws that safeguard the workers from discrimination at their work places. Theese laws apply regardless of the organization size, the sector and the number of workers in the organization (Goldstein 1998). The law prohibits discrimination during hiring compensating and giving conditions and privileges to workers (Cornell university Law school n.d).
The Equal pay Act that was enacted in the year 1963 prohibits an employer from paying an employee lower wages based on his/her gender. The Act states that employees should receive equal pay for equal work performed. The Act state that employers should offer equal pay if "equal skill, effort, and responsibility and are performed under similar working conditions" are required to perform the task.
The 1964 Civil Rights Acts safeguards the employee from discrimination based on color, race, nationality, sex or religion. Following the amendment of the Law in 1978, it became illegal to discriminate a person based on childbirth, pregnancy, or a medical condition. This law should be applied while hiring and promoting employees (cornell university Law school n.d).
In 1967, the Age Discrimination Employment Act made unlawful for employers to discriminate individuals who are 40 year and above during compensation, hiring and employment with regard to their age (Fredman 2011).
The employer also reserves the right not to discriminate individuals based on disability. This provision is contained in the 1990s Americas with Disability Act. The law required the employer to make their organizations to accommodate applications from employees with disability (Equality and Human rights Commission 2010).
The law also safeguards an employee from harassment based on sex, religion, nationality or race. The sexual harassment is prohibited through the Civil Rights acts of 1964, which was amended in 1972. The 1991 Civil rights gave the sexual harassment victims entitlement to damages for “pain and suffering” and for lost pay (Barnett 2008).
The employer also has the right to protect a worker from harassment by either a fellow worker or an outsider while on duty. The law therefore requires the employer to ensure that an employee is not harassed by a fellow employee by ensuring that “reasonable steps” are taken to prevent the harassment. Therefore, the employer should put up a policy on harassment, and involve the employees in the making of such policies. The harassment policy should outline the measure to be followed while addressing the harassment issues. The issues should also be handled in a reasonable time (Equality and Human rights Commission 2010).
Analysis of the Dillydale Accountants Case
The Equity law requires all workers to be treated equally. No worker should be discriminated upon based on sex, race, and religion (Great Britain 2010). According to the 1964 Civil Rights Acts, an organization should not discriminate an employee based on his/her sex. According to this Act, it includes pregnancy, childbirth, or a medical situation. According to the Privacy Act, the employer reserves the right to treat private information of an individual as such (Privacy rights Clearinghouse 2012). In the case of Ms. Indiscreet, the other HR manager went against this Act by giving news of her pregnancy without her consent. The action may be seen as being against the equity Act that states that an employee should not be discriminated during employment. The HR manager due to her condition denied her right to privacy. The HR manager also did not give her a transfer as requested despite her knowledge of vacant post in another branch. These acts by the Dillydale Accountants were resulting from Ms. Indiscreet condition of being pregnant. The case therefore breaches the Equality Act of 2010, which safeguarded the rights to equal treatment of all the employees (Great Britain 2010). The Act also gave pregnant women special protections that were denied by the actions of the Hr manager and the head of Dillydale Accountants.
Remedies for constructive dismissal
If the application for the unfair dismissal is upheld, the following options are open to the employee:
The Employment tribunal will first seek to know whether Ms. Indiscreet has a wish to be reinstated. The tribunal should also decide whether it is equitable and just to for her to be employed. The employment tribunal has in most cases ruled against re-employment (Thomsons Solicitors 2012). It is because few employers will be willing to take an employee who they dismissed back to work. In the case of Ms. Indiscreet, it is also unlikely that she will opt for re-employment at the same branch since she had initially indicated her unwillingness to work with at the same branch. In cases where re-employment takes place, the employee enjoys the same job at the contracted pay and pay and security (FindLaw UK 2012).
The employment Tribunal may also offer the employer an option of engaging the employee at a different branch or job. It could be a possibility since Ms. Indiscreet had shown her willingness to work at another branch. However, employment Tribunals rarely orders for engagement (Barnett 2008).
The most ideal and common remedy for unfair constructive dismissal is compensation (Thomsons Solicitors 2012). While providing a compensation, the losses, which Ms. Indiscreet has experienced as a result of the dismissal, should be taken into consideration. The hearing time and expenses are also considered as well as the length of time she will stay without working before she gets another job. A redundancy payment can also be gotten as a basic reward (FindLaw UK 2012).
Ms. Indiscreet can also get compensation for humiliation, distress and damage of reputation. The Employment tribunal can give a maximum compensation of £ 68,400.00. the figure is updated every year (Thomsons Solicitors 2012).