QLD Constructive Dismissal FCA Plead post termination - General Protection

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Poidah

Well-Known Member
9 November 2017
135
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Qld
Looking at including a constructive dismissal angle in preparation for a General Protection FCA plead.
Termination was 24 hours after a workplace complaint, but a month before probation. The rapidity of the termination was deliberately and publicly humiliating but as it is not an unfair dismissal case, but in a general proection case is not as relevant unfortunately. However, the close proximity of the complaint to the termination makes the workplace complaint operative, but substantive is not as easy to convince. I am keen to develop a constructive dismissal defence to include all the various inactions and allegations that the employer can develop as defences. I am aware that there is little or no reason that needs to be given for termination before probation, but the employer has been deliberately vexatious with damaging allegations aimed to demean and discourage reprisal, but clearly false due to documentation, emails, GPS etc. Constructive dismissal supports the argument that the employer's behaviour was responsible for the work dissatisfaction rather than anything that the employee did as the employment relationship deteriorated resulting in the termination.

I realise that constructive dismissal is traditionally a defence against potential dismissals, and usually not mounted after a termination, but constructive dismissal really helps focuses attention on the workplace demands rather than allow the employer to misrepresent everything as as a problem with the employee, incompetence, inability or unwillingness etc. At least with constructive dismissal, the plead and particulars can paint a bit of detail to the unreasonable workplace demands and circumstances. Anyways, I haven't started doing all the background reading, the previous constructive dismissal cases etc yet so sorry if I am completely off the mark, but I am keen to float the question before I get my hope crushed with the weight of precedent...

 

Rod

Lawyer
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27 May 2014
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I am aware that there is little or no reason that needs to be given for termination before probation ...
Most people think this, but it is not true. You need to examine the employment contract to ascertain who has what rights. There is no such concept such as probation in the Fair Work Act, though you do need to qualify for unfair dismissal by length of employment.

I am unclear how you expect to argue constructive dismissal if you were dismissed by the employer. Ending of employment is one event. Now you and the employer can disagree on the manner in which it can be done but I fail to see how arguing constructive dismissal is going to help if the employer is saying they sacked you. What you need to focus on is the unreasonable management behaviour and how that impacted on work performance. Keep in mind there is no law saying all managers have to be good managers.

I'll repeat this bit as your thinking appears to have gone off on an unproductive tangent - Forget constructive dismissal, focus on the actions and events leading to dismissal.

BTW, unless there are complex issues I'd expect the FCA to transfer the case to the FCCA.

This just personal opinion based on very limited information.
 

Poidah

Well-Known Member
9 November 2017
135
5
419
Qld
Thanks heaps Rod :)
The employer has made it a complex case in their F8A response. They claim statements of wanting to leave amount to grounds of termination and mutual dissatisfaction, however each time there it was directly related to a workplace complaint followed by unreasonable management action.

The proposed FWC remedy amount will be higher due now due to new evidence of direct damage from the reputational damage from the public humiliation of the sacking and the refusal to give a reference and the dispersion in the termination letter. Damage grom the industry association is harder to prove but will be implied. So a more than 40K amount plus punitive damages will mean FCA is more appropriate.
Unreasonable management may be a better avenue to structure the pleading though then, thanks.