Constructive Dismissal vs Unfair Dismissal: What's the Difference?

Constructive Dismissal vs Unfair Dismissal: What's the Difference?

These two terms are often confused. The difference is significant because they arise in different circumstances and require different things to prove.

Unfair Dismissal: The Basics

Unfair dismissal applies where your employer terminates your employment and you believe they had no fair reason to do so, or handled the process badly.

Constructive Dismissal: The Basics

Constructive dismissal applies where your employer has not formally dismissed you, but their conduct has been so serious that you felt you had no reasonable choice but to resign. The legal test is whether your employer committed a repudiatory breach of the employment contract.

The "Last Straw" Doctrine

A series of individually minor acts, each of which might not amount to a breach on their own, can cumulatively constitute a repudiatory breach if they demonstrate a course of conduct that undermines the employment relationship.

Time Limits and Affirmation

The same three-month time limit applies to constructive dismissal as to unfair dismissal. Critically, you must resign promptly after the breach. If you continue working for a significant period after the breach you are complaining of, you may be taken to have affirmed the contract, losing your right to resign in reliance on it.

This article provides general legal information only. It is not formal legal advice and does not create a solicitor-client or barrister-client relationship. If you need advice specific to your circumstances, please consult a qualified legal professional.