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Constructive Dismissal

The Issue Of Constructive Dismissal

When it comes to employment, the term dismissal is one that is often heard across the board. In fact, many of the cases between employees and employers focus around dismissal of one kind or the other. A survey that was carried out by a legal research team revealed that almost ninety percent of the cases filed in courts by the employees were related to some sort of dismissal. In the context of law, there are different types of dismissals at which we now look in detail.

In any type of employment law, there are three main types of dismissals: Wrongful dismissal, unfair dismissal and Constructive Dismissal. We know that it is the right of the employee to be served with a notice stating the causes upon which the employee is to be dismissed, so that he may take action to clarify the matter and provide an explanation. We also know that such a notice must be served to the employee at a certain time before he is to be dismissed.

In most laws, such a period is at least two weeks before the intended dismissal. A wrongful dismissal occurs when the employee is served with no notice and is dismissed. Unless such a dismissal is due to a statutory offence, it will be considered wrong, as the employee was not given a chance to explain his or her position and action of the employer was clearly biased. Employees can go to the court and file a case against the employer under common law, for damages in this case

The other type of dismissal is known as an unfair dismissal. Under this type of dismissal, the employee must prove to the court that he or she had been in continuous employment of the employer for a period of one year, and that he or she had been dismissed and that the dismissal had been an unfair one, meaning that the employee did not breach any of the rights of the employer, but the employer even still dismissed him or her. In this case, the burden of proof lies upon the employer and he has to prove that there existed a solid reason for dismissal and that the employer was justified in dismissing an employee in this position due to the existence of a substantial reason.

The third type of dismissal is known as Constructive Dismissal. This occurs where the employer, although willing to continue the employment, either changes or repudiates some essential term of the contract, so that it becomes impossible for the employee to continue employment and the employee considers himself constructively dismissed. In a case study, an air hostess considered her constructively dismissed because of the fact that the airline that employed her let her come to the airport but did not let her board the airplane on which she was supposed to serve. In a similar case, a steel mill employed a worker in the day shift but then changed his shift to the night, and the worker considered him as constructively dismissed. Constructive Dismissal is also wrong at common law and the person so affected can sue for damages.

Constructive Dismissal 

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