Thursday, March 05, 2009

Forced to quit your Job? Constructive Dismissal Explained.

In the worst financial meltdown since the Great Depression, people are losing their jobs left and right. Some people are being fired, and others are being laid off. But then there is a group of people that feel as if they are being forced to quit their job.

Every State/Province has their own laws when it comes to employment. The basic principle is that you have the right to leave whenever you want, and your employer is allowed to release you whenever they want. That is the BASIC principle. This is called the At-Will Doctrine.

The law then builds on it. No one can be fired for anything in the Constitution or protected at a federal level. Things like Age, Gender, Religion, etc. But the laws are a little more complex.Per this article some locations such as Florida, Georgia, Louisiana, and Rhode Island, have very few exceptions to the standard doctrine. While others such as Alaska, and Idaho respect far more exceptions. California and New York are somewhere in the middle.

To have a case for wrongful dismissal, or being illegally fired, you need to show that your employer broke a protected or accepted rule in your State or Province. In addition you can prove that the employer broke the actual contract of employment you have.

All employment agreements are contracts. It is a contract of service. The terms of your employment contract generally include anything you may have signed (offer letter), and the policies of the company (with limits).

Quiting vs being fired, or laid off has a significant impact on you obtaining benefits, like unemployment insurance, and references for further employment. The company can also save money if you quit, because of various notice periods in the contract, or in the local laws, severance etc. Many of those things don't apply if you quit.

But what if you are forced to quit. You are driven out by threats, abuse, harassment, or fraud.

That is the EXACT same as being fired. It is called CONSTRUCTIVE DISMISSAL. They are acting in a way that forces you to quit, is the same as if they fired you. Now you look at was it wrongful or not.

If a company has driven you out for the purposes of trying to trim head count, and not be liable for severance, or unemployment expenses, then they have broken the law. That is Constructive Dismissal.

If they have driven you out to avoid obligations in your contract, they have broken the law.

If they do NOT correct a problem, such as abuse or harassment from fellow workers, and/or management, then they could be liable for Constructive Dismissal. That's right. If they fail to correct something, that could reasonably cause you to quit, then it is the same as if they fired you directly.

If you feel you are being forced to quit, you need to take proper steps to maintain a claim. It does not matter where in the world you are, the majority of Courts always ask one question. Did the people take the chance to resolve or limit the problem themselves. You have a duty to try to solve the problem, and notify the others of the issue, so they have a chance to resolve it.

Taking these steps will help you maintain your claim.

1. Keep a diary of all the events. Include all names of witnesses, times and steps you have taken to correct the situation.
2. Make sure you follow company policy on filing issues, grievances etc. if you are not sure what those are, as your manager, or the HR/OD group. If possible write a flow chart about the process for filing a complaint, or how the issues are handled.
3. Write down the process if you are to be fired, or if there is a discipline issue against you. You want to make sure they don't fire you because you are kicking up a storm (which normally they cant, but they may try)
4. In all complaints be very specific about the issue, and about what you feel an effective resolution would be.
6. Do not take ANYTHING home that is company property
7. If there is no resolution, then before you quit you should try to bring your notes to a lawyer. A properly worded letter just before you quit can be very effective. The lawyer would advise you on how the letter should be written, so you give them proper notice.

If you are being driven out of a company, then the steps you take before you quite are very important. Take the proper steps, and protect yourself.

If you do need to speak to a lawyer, click HERE. Lawyers are online, and can answer your question within minutes for as little as $15.



Copyright © 2009 Peter MacSweeney.
All rights reserved. Reproduction in whole or in part without the express written consent of the author is forbidden. Contact the author through the comment form for all inquiries, including media.


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