At least once per week we get a call in our office from someone wanting to break their contract. This decision is usually the end result of some intolerable condition being experienced at the work place. The helper often has the element of frustration in their voice and is unsure of what to do. The only thing they know is that they want out of the situation.
In many instances the Helper had become so frustrated by the situation that the call comes after they informed their employer that they want to leave. This creates an unfortunate situation for the Helper since they may then owe the employer Wages in-lieu of Notice. The employer often gets the Helper to sign a termination notice saying that the Helper is the one to terminate the contract.
Again this is unfortunate since an overwhelming number of the cases involve ill treatment, abuse , underpayment or illegal deployment of the helper, who would be entitled to terminate the contract without being at fault had they known their rights.
On 15th July we mentioned the phrase constructive dismissal in a post on our Facebook page (http://www.facebook.com/helpersfordomestichelpers). Helpers should be familiar with this phrase.
Under the employment contract the employer or helper may terminate the contract at any time by giving one month notice in writing. If notice is not given then the party terminating the contract should pay one month’s wages in lieu of the required notice. However, there are exceptions to this requirement. One such exception is constructive dismissal.
Constructive dismissal occurs when the Helper resigns because their employer’s behaviour has become so intolerable or heinous or made life so difficult that the Helper has no choice but to resign. Since the resignation was not truly voluntary, it is in effect a termination.
For example, when an employer makes life extremely difficult for the Helper in an attempt to have the Helper resign rather than firing the Helper outright, the employer is trying to effect a constructive discharge.
Generally a constructive dismissal leads to the Helper’s obligations ending and the Helper acquiring the right to make claims against the employer. The Employer is liable to pay wages in lieu of notice.
The Helper may resign over a single serious incident or over a pattern of incidents. Generally, the Helper must have resigned soon after the incident.
The following examples are valid reasons under the Constructive Dismissal rule for a Helper to resign without giving notice and still being able to receive all entitlements:
- Helper fears physical danger by violence or disease
- Salary not paid within one month after it is due
- Helper is subject to ill treatment or abuse by employer
- Serious breaches of the contract by employer, such as underpayment of wages, illegal deployment, unsuitable accommodation, breach of implied duty of trust and confidence.