Home » What is a Constructive Dismissal?

What is a Constructive Dismissal?

Posted by Maeve Doyle | 11 December 2019 | Employment & Workplace Relations

The case below demonstrates an employer that ignored the complaints of an employee that they are overworked to its own demise.

Ravi Sathananthan v BT Financial [2019] FWC 5583

What is a constructive Dismissal?

The Fair Work Act s.386 definition of dismissal includes:

“the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.”

Commissioner Hampton considered that the failure of BT Financial to sufficiently address Mr Sathananthan’s complaints that he was working long hours and his health was suffering was conduct which forced Mr Sathananthan to resign.

The Facts

Mr Sathananthan worked for BT Financial as a Business Development Manager for seven years. His workload increased significantly while a colleague was on paternity leave, and whilst he picked up the workload of an employee he complained was underperforming. He claimed that BT did not offer him any proper support to help manage the workload, despite him flagging such concerns to BT on multiple occasions.

He resigned, served his notice and then made an application to the FWC for an unfair dismissal remedy.

The Finding

Commissioner Hampton accepted that Mr Sathananthan stated to his supervisor that he was working in excess of 70 hours per week and that this was taking a toll on his health. He had also expressed to HR that he had serious concerns that he may not be able to cope with the workload and that a major health episode could occur.

He said

“I consider that the combination of the excessive working hours and the absence of any real recognition of this issue or steps taken by BT to manage this, particularly influential in the assessment as to whether that resignation was forced.

Mr Sathananthan had no effective or real option but to resign his employment from BT.”

Remarkably, Mr Sathananthan did not present any independent medical evidence that his health had suffered as a result of the long hours that he worked.

The Result for the Applicant

Mr Sathananthan was able to prove that he had been constructively dismissed. He was awarded four months salary as compensation for an unfair dismissal.

Maeve Doyle is a senior employment lawyer with Nexus.  If you need further advice or support, she can be contacted on mcd@nexuslawyers.com.au or by telephone +612 9016 0141.

This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.

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