Termination “for cause” is the lawful exception to an employer’s obligation to provide an employee with notice of their termination, or pay in lieu. However, establishing sufficient “cause” to fire someone without notice is more challenging than many employers - and employees - realise. Termination for cause is treated by courts and other decision-makers as the most severe form of punishment in an employment relationship given the serious repercussions for the employee, and thus requires significant wrongdoing by the employee - and sometimes more than one instance - for an employer to lawfully use.

In some cases, employers will terminate an employee without notice by citing misconduct that does not meet the threshold for “cause. Sometimes this may be unintentional, but in many cases the employer is hoping that the employee won’t realise that their misconduct doesn’t amount to sufficient cause for termination under the law and pursue their entitlements like pay in lieu of reasonable notice. The employer may also be withholding further entitlements that would be owed to the employee at termination under their employment contract, like a partial bonus or continued benefits, but are void if the employee is terminated for cause.

Constructive dismissal occurs where an employer makes serious, negative changes to an employee’s working conditions or employment terms. These changes must be significant and affect essential terms or conditions, to the point that the law considers the employer to have terminated the employment contract. In these situations, the employee can resign on the basis that the employer ended the contract and seek damages like pay in lieu of notice. However, there are a few important things to keep in mind if you think your employer is constructively dismissing you.

Employees bear the burden of proving that their employer has made changes that amount to constructive dismissal, and not all negative changes will reach that threshold. Whether your situation qualifies as constructive dismissal depends on the facts and circumstances. Changes must be significant, but they aren’t always obvious - the gradual imposition of a toxic work environment may not be apparent until it becomes unbearable. At the same time, if an employee continues working under the new conditions long enough without taking action, they may be considered to have condoned or accepted them and lose their ability to claim constructive dismissal.

Constructive dismissal can be a risky claim to make because it requires the employee to resign from their job first, and then proceed to seek damages. They run the risk of resigning only to discover that their situation had not amounted to constructive dismissal, leaving them unemployed, without termination pay and possibly without access to employment insurance. For this reason, it’s important to seek the advice an employment lawyer who can tell you whether your situation has reached the level of constructive dismissal before you make the exceptional and weighty decision to resign.

In either case, Cassandra can help you assess your situation to determine how to proceed. If you suspect your employer is trying to force you out of the workplace - or has already - without providing you with adequate notice or pay in lieu, Cassandra advise you as to whether your circumstances qualify as either wrongful or constructive dismissal. She can lay out your options and risks, and help you continue in whichever way you choose to move forward.