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NSW Am I Entitled to Claim Constructive Dismissal if I Resign?

Discussion in 'Employment Law Forum' started by kitty70, 25 April 2016.

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  1. kitty70

    kitty70 Member

    24 April 2016
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    Hi forum members,

    I have a situation. I work for a manufacturing organisation. Management is pathetic. They have been restructuring for 4 years. In the last 4 years, I have been transferred to 3 departments, 6 positions - Engineering to Planning, Planning to Accounts to manage product costing, Product costing to Manufacturing. Then from Manufacturing to Production Inventory, and Production Inventory to R&D technology.

    Communication is at worst, we learn about the company through the vendors, suppliers, contractors when they are being informed.

    In all these changes, I had to learn the new things on my own. No training or coaching was ever provided. However, the last 18 months work has been almost nil. Business is running at a loss. The Managers who brought this business down has been nominated to turn things around.

    In the last 2 years, 55 people were made redundant, 2 subsidiary divisions were closed, including R & D department. I put up my name for voluntary redundancy, however, management is reluctant to pay me out. During my previous discussion with my manager, I discussed if there was a redundancy from the company, he could consider adding my name as my work has reduced to nil.

    During the last 4 months, as my work has been taken over by other departments, they have not made any offer of a new position. The marketing manager who was my old boss with whom I worked with a couple of years back verbally instructed me, "if you want, you can work for technology department or relocate to the plant which is beyond Wollongong, as that plant also is going through bare production."

    Now they have transferred me back to the technology department. This department was made redundant 2 years back. All the resources which belonged to this department are lost. They are not willing to provide tools, yet they want me to work in this department.

    As I have been forced to work for different departments with different roles, I am beginning to lose my skill set with uncertainty. I feel like resigning. If I resign, can I claim constructive dismissal?

    Any feedback much appreciated.
  2. Sophea

    Sophea Well-Known Member

    16 April 2014
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    Hi Kitty70,

    Constructive dismissal requires that your employer either expressly ask you to resign or by their conduct they leave you feeling as if you have no choice but to resign. Such conduct would generally involve the employer engaging in a serious breach of the employment contract or indicating that it no longer wishes to perform its side of the employment contract. You must be able to prove that your employer's actions were the principal contributing factor which led to termination of the employment relationship. You must show that something the employer did, or failed to do, left you with no other option but to resign.

    I don't know that your situation would fit that bill. It may having regard to all the evidence that you could put forward but its impossible to determine within this forum.

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