Constructive Dismissal
Feel like you’re being forced to resign, or already left because you felt you had no choice?
You may have grounds for constructive dismissal.
Talk to one of our employment advocates about what’s happening. We can help you understand where you stand and what to do next.
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What is constructive dismissal?
​Constructive dismissal is when you feel like you have to resign because your employer’s actions or conduct have left you feeling you have no reasonable choice but to leave.
If you’re still in your job and are unhappy about the way you have been treated, you might be tempted to resign and say that it was constructive dismissal. We strongly urge you to get advice before you hand in your notice. Constructive dismissal claims can be difficult to establish because you resign rather than being formally dismissed.
Our employment advocates can assess what’s happening and advise you on the best next steps. If you’ve already resigned, we can review the circumstances and help you understand whether you may have grounds for a constructive dismissal claim.
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Seek support from our employment advocates before making any big decisions.
Do you have grounds for constructive dismissal?
Constructive dismissal can happen in different ways, but generally there needs to be a clear connection between your employer’s actions and your decision to resign.
If you’re experiencing any of the situations below, talk to one of our employment advocates about whether you may have grounds for a constructive dismissal claim.
I was told to resign or I’d be fired
If your employer gave you the choice between resigning or being dismissed, your resignation may not have been truly voluntary. This can also include being told to accept a demotion or pay cut, or leave.
Bullying or harassment has made me feel I have to leave
If you’ve experienced serious workplace bullying or harassment and your employer has failed to properly address it, this may contribute to a constructive dismissal claim.
I feel like my employer is deliberately trying to push me out
Constructive dismissal can involve a pattern of deliberate behaviour designed to make you resign. This could include repeatedly making unreasonable demands, removing support, isolating you or undermining you at work.
My employer hasn’t provided a safe working environment
Unsafe working conditions can amount to a serious breach of your employer’s workplace obligations. If the situation has left you feeling you have no choice but to resign, you may have grounds for constructive dismissal.
My employer isn’t paying me what I’m owed
Repeated problems with being paid incorrectly or late can be a serious breach of your employer’s obligations. If the problem has become serious enough that you feel you have no choice but to resign, speak to an employment advocate before making a decision.
My hours, pay or duties were changed without agreement
Major changes to your hours, pay or duties without your agreement can amount to a serious breach of your employment conditions. If those changes have left you feeling forced to resign, get advice about your options before you leave.
How our employment advocates can help​​
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If we take on your constructive dismissal claim, we can represent you on a No Win, No Fee basis. This means you won’t pay our fee unless we achieve a successful outcome for you.
Whether you’re still employed or have already resigned, our employment advocates can help you understand your position and what to do next.
Our advocates can:​
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Review what your employer has done and whether it may support a constructive dismissal claim
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Advise you before you resign
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Help you understand your legal options if you’ve already resigned
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Help prepare and raise a personal grievance
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Negotiate directly with your employer
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Help negotiate an exit package where appropriate
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Represent you during mediation or before the Employment Relations Authority where required
What our clients have said
Stephanie
I wanted to write and say thank you for representing me. The outcome far exceeded what I was expecting. You are great at what you do. I will be recommending you to everyone I know.
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Unfair Dismissal |
Tauranga
A (Name Withheld)
Ruth who was my representative took on my case and was amazing. She was really informative, she explained everything thoroughly step by step. Couldn’t have asked for a better person to represent me. Would highly recommend her.
Employment Issues | Auckland
B (Name Withheld)
Amazing the knowledge that Paul has no mucking around means business...done a very good job on my behalf not once but twice too I might add..would fully recommend this company and most certainly Paul..thankz guys
Unlawful Dismissal | Christchurch
Real outcomes for New Zealand employees
Unpaid tax and a toxic work environment
Our client was employed for just under a year as Head of Digital Marketing by an online media company. He resigned and claimed constructive dismissal due to his employer’s failure to pay PAYE taxes to the IRD. He found this failure to be the last straw in his employment following failure to pay agreed increased wages and a toxic working environment.
The employment experience caused him significant anxiety and he believed it would have a negative impact on his employment prospects. The ERA found that the failure to pay the deducted PAYE taxes to the IRD was deliberate and deceitful and breached the duty of good faith. The breach directly caused our client to resign resulting in constructive dismissal.
The ERA awarded lost wages representing the difference in earnings in roles taken following his resignation and compensation for humiliation and injury of $20,000. A total of $28,294.87 was awarded.
Understand the circumstances that can lead to constructive dismissal and what to consider if you believe you've been forced out of your job.
Learn how constructive dismissal works in New Zealand and what may happen when an employer's actions lead an employee to resign.
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Answering your questions about constructive dismissal
How long do I have to make a constructive dismissal claim in New Zealand?
You generally have 90 days from the date you resigned to raise a personal grievance for constructive dismissal. These time limits are important, so it’s best to seek advice as soon as possible if you believe you were forced to resign.
How hard is it to win a constructive dismissal case?
Constructive dismissal can be difficult to prove because you resigned rather than being formally dismissed. You need to show that your employer's actions were serious enough to leave you with no reasonable choice but to resign. This is why it’s so important to reach out to an employment advocate before resigning, where possible, so you can understand your rights and the best way to protect your position.
What is not counted as constructive dismissal?
A difficult or unpleasant workplace situation does not automatically amount to constructive dismissal. For example, it generally won't be constructive dismissal simply because your employer makes a lawful and reasonable request, follows a fair performance management process, or you resign while your employer is genuinely trying to resolve the problem.
Work-related stress may also not be enough if you haven't told your employer about it and given them an opportunity to help. Ultimately, the situation must be serious enough that resigning was your only reasonable choice.
What evidence do I need to prove constructive dismissal?
You need evidence that helps show your employer’s actions left you with no reasonable choice but to resign. This could include your employment agreement, emails and text messages, meeting notes, records of incidents, and any complaints you made and responses you received.
It’s also important to keep a clear record of what happened and what steps were taken to resolve the problem before you resigned.
Mathews Walker can help you identify and gather relevant evidence, understand what may support your claim, and build a clear picture of what happened.
What should I do if I think I’m being constructively dismissed?
If you feel like you’re being pushed out or forced to resign, speak to an employment advocate before making any decisions. They can help you understand whether what you’re experiencing could amount to constructive dismissal and what steps to take next.
Where appropriate, you should also raise your concerns with your employer and give them a reasonable opportunity to resolve the problem.