The main grey area with regard to Constructive Termination is “where is the line?” What constitutes reasonable management of someone and when does it step into the realms of bullying. Sometimes it can be very easy, especially when you are angry with an employee to overstep that boundary. If you are a reasonable employer, who loses their temper once or twice, the chances of you being found guilty of constructive termination is very slim.
If however, you are the type of employer who spends a large bulk of their time screaming at people or even at inanimate objects you might have a reputation that would mean that a Constructive Termination case against you might be successful. With regard to Constructive Termination the Employee must prove their case against the Employer. That means they have to prove that the Employers conduct towards them was intimidating and if they are not seen to be doing this on a regular basis, then the Employer’s staff, if subpoenaed would be able to state the Employer is reasonable person and didn’t lose their temper.
The concept of Constructive Termination is where the relationship has broken down irretrievably. Meaning that the employee is not able to work with the Employer anymore and therefore had to resign.
Recently we were involved in a case where an employee was standing in the kitchen and they overheard their immediate supervisor talking about them to another employee in the office. The supervisor was passing on information about that person’s performance, indicating that they really didn’t see how they were every going to get up to speed and that they were very dissatisfied with the person. The employee had not heard this from her supervisor. She approached her Employer and passed on the content of the conversation, requesting a meeting with her Employer and her Supervisor.
The Employer suggested she “work it out for herself”. She approached her supervisor who advised her that she did not make this statement and she was very happy with her work. The employee pointed out that she heard the conversation and the supervisor said that she was talking about someone else. Sometime later she overheard her supervisor talking about her again, this time the conversation was a lot more derogatory and to a large group of people and indicated that she was “useless”. She again approached her employer who told her to “work it out with her supervisor”. She resigned and took the company for constructive termination and won her case. It took her approximately 12 weeks to gain new employment, feeling very upset and total loss of confidence and her payout was for this period of time.
Another case (not handled by us), involved a Supervisor who was new to the organisation and the team refused to work with him. They still worked together to achieve their goals, but did not include the new supervisor in any of their meetings. They by passed him and worked directly with their Employer. The new supervisor approached his employer and requested assistance, he was happy to hold a meeting, but he needed the Employer’s support, because previous meetings he had called, they didn’t turn up. The Supervisor thought that if the Employer called the meeting and stood next to him whilst he spoke to the staff about their lack of support for him, then he would be able to get the job done that he was employed for.
The Employer pointed out that the team were achieving their goals so he didn’t want to get involved. The new Supervisor had no choice but to resign and cited constructive termination. His case was successful because he was employed by the Employer to do a task and the Employer did not support him in this and in fact hindered him from achieving it. The supervisor was well known in the industry and was very concerned about his reputation being destroyed by the conduct of the staff. He was only unemployed for a short period of time, but received 8 weeks compensation for the stress that the event had caused him. He had to seek Counselling during his time working their.
Now, if you are thinking, “toughen up” on both of these cases then, I should impress upon you that level of stress that being in these types of environments cause. Not only for the Employee, but also for that employees family. Being in a situation that you have NO control over is very distressing. Constructive Termination, I believe, has its place and can be very helpful, when you are in this type of situation. It should only be used when you have exhausted all avenues. You should always speak to your direct Supervisor first and if that person is unable to assist you, approach your Employer. If they are unable to assist you, then you can take it further.
If you feel that you have a case and would like assistance, please do not hesitate to contact us.