I undertook, when I started this series, to reflect on precedents set as "justifiably constructive," to help individual workers, employees not classified as workers under the Industrial Relations Act, trade unions, employers and managers (where owner/employers are not managers), on the often confusing approaches to the constructive dismissal concept.

To do so, given space limitations, I will start with Industrial Court awards and leave those of the Appeal Court for a separate study.

Among the charges regarded as "justifiably constructive" in precedent are:

– Employer acted unreasonably

– Employer was guilty of abusive or unacceptable conduct, eg immoral or illegal acts

– Employer is guilty of contractual repudiation

– There was an unjustified or unreasonable change in job obligations not agreed to by both parties

– There was an unjustified change in the employer’s positive obligations

– There was an unreasonable insistence by one of the parties of the performance or lack of performance of an aspect of the job that may have been or is now becoming unsafe or a danger to the health or welfare of the employee

– Repeated prior intention to claim unreasonableness – there was no indication of a previous acceptance of a change in responsibilities

– There was a breach by the employer of a fundamental term of the contract or an implication that such a breach was about to occur

– Under some circumstances, an insistence on a change in the employee’s place of work has been considered appropriate

[caption id="attachment_1076362" align="alignnone" width="683"] Scales of Justice -[/caption]

– A change in the remuneration calculation or an implied change in the employee’s remuneration.

Mainly, if there is evidence of an unreasonable or unjustified change in the employer’s common-law obligations without the knowledge, agreement or consent of the employee, there may be grounds for a claim of constructive dismissal.

In September 2005, the Industrial Court delivered an award in a dispute between the Seamen and Waterfront Workers Trade Union (SWWTU) and PLIPDECO on the subject of constructive dismissal in which it set a precedent that has been used as one of two in court approaches ever since.

Constructive dismissal has, in custom and practice, been defined as a situation where an employer’s conduct is adjudged so unreasonable as to leave an employee with no alternative other than to resign.

It is also judged by what is known as "the contract test."

Selwyn’s Law of Employment (Section 8.52) goes further and includes the following: "The test for constructive dismissal is to be determined by the contract test: Did the employer’s conduct amount to a breach of contract which entitled the employee to resign?"

The distinction is a fine one, but there is an important difference to be observed. An unreasonable act by an employer may not necessarily go to the core of the contract.

As in most industrial relations cases, the judgement will perforce examine the common-law obligations – obligations, unless o