Constructive Dismissal Letters
Before beginning to compose your constructive dismissal letter, it’s important first to know what constructive dismissal actually is and what exactly you’ll have to prove to a court if you file a personal claim against your current employer. By law, any employer who fails to properly accommodate their employees’ legal rights is guilty of constructive dismissal. The term can encompass not only official actions like disciplining an employee for discriminatory behavior or allowing someone to be disciplined for punching another employee, but any informal actions taken against an employee by an employer that isn’t officially defined as a reprimand. Constructive dismissal also covers instances in which an employee is owed a reasonable break from employment, such as waiting a few days before beginning your employment contract or following an extended leave of absence.
To initiate the process of filing a constructive dismissal letter, you must first receive written notice of your breach of employment agreement from your employer. If you were given notice of an impending termination, this will be the earliest date that you can file your complaint. It is also important to remember that employers are allowed to discipline an employee for a breach of contract even after the date of that notice has passed, as long as it was not done through abuse of power or an intent to deprive the employee of his/her rights. For example, if you received a notice of dismissal from your boss and failed to follow protocol required by your employment contract, you may still be able to bring a case against your employer if it was found that you violated the terms of your employment contract before you left.
In instances where you fail to comply with the terms of your employment contract or you believe that you have been unfairly dismissed, you should consider first making a “good faith” effort to resolve the problem. If you believe that you have a valid claim for breach of contract or discrimination, you should then discuss your case with a supervisor or a lawyer. Only a supervisor can properly exercise the authority granted to an employee in employment, and only a lawyer can competently represent you in your claim for wrongful termination or other forms of constructive dismissal claims. However, you should be careful to not attempt to represent yourself during this discussion period. If you do so, you may jeopardize your claim.
Before beginning to compose your constructive dismissal letter
Before you begin explaining your case, you should obtain a copy of the original employee handbook. In most cases, an employment contract is the source document that details the exact termination terms. However, if the employee handbook does not contain such information, you should request an additional copy from your employer or, if appropriate, from the U.S. Office of Special Counsel (OSC). A copy of your employee handbook will also be helpful to your claim if, for example, you believe that your employer’s notice violates the Fair Labor Standards Act (FLSA). The Fair Labor Standards Act, like other federal statutes, defines the conditions under which an employee may be dismissed for misconduct or other unfair employment practices. Therefore, aFLS violations can be used as grounds for advancing your constructive dismissal claim.
Now that you have obtained your handbook, you should read it thoroughly. In particular, you should identify any express limitations on the basis of which an employee can be dismissed. For example, if you believe that the employer has provided you with a notice of dismissal or unfairly dismissed you for any reason, such as your showing up late for work, you should make sure that you document the date and time of your meeting with the supervisor and any reasons why you are being dismissed. Similarly, if you believe that you have been unfairly dismissed, you should document how you met with your supervisor and document the circumstances surrounding your meeting (if appropriate). While you should try to be as comprehensive as possible, you should ensure that you document any aspects of your meeting that are of significance to you.
If you believe that the circumstances detailed in your handbook require you to submit a constructive dismissal letter of resignation, your first step should be to contact an attorney experienced in representing and negotiating workplace issues. The attorney will assist you in drafting the most appropriate written resignation agreement that is in line with the Australian Workplace Relations Act 2021. The attorney will also assist you with drafting the most appropriate contractual terms that will protect you from discharge without notice. Your attorney will ensure that you have a suitable exit strategy so that you do not have to worry about the possibility of being subjected to redundancy.