Home' HR Monthly : September 2014 Contents September 2014 HRMonthly 47
PHOTOGRAPHER SAMANTHA SAGONA
hated being bullied and intimidated by her boss, but
she tolerated it because she was well paid and gaining
good experience in her job.
Then, in August 2012, she announced her pregnancy
to the directors of the business, and the treatment got
worse. In the next three weeks, the directors made
various demands, including that she work additional
hours, take long service leave after her Christmas break
and sign a new contract that based her remuneration
on the achievement of unreasonable targets.
The directors indicated they would refuse to consider
part-time work after parental leave, and threatened
her with redundancy and pay cuts if she didn’t meet
her targets. Her supervisory duties were removed and
another employee was noticeably preferred in the
allocation of work.
The final straw was when Sagona wrote to the
directors to explain how upset she was about her
treatment. She was summoned to a meeting and
subjected to a tirade of aggression, abuse and threats.
She left the employment and commenced
proceedings under the general protections scheme of
the Fair Work Act. In the case Sagona v R & C Piccoli
Investments Pty Ltd & Ors , Judge Whelan
said she was satisfied Sagona had been constructively
dismissed because of her pregnancy and ordered the
company to pay her $174,097 in compensation and a
further $61,000 in penalties.
A dismissal is ‘constructive’ when the employer’s
actions leave the employee with no reasonable choice
but to leave the employment. This typically occurs
when the employer breaches a fundamental term of the
employment contract, or acts in a way that shows it no
longer intends to be bound by the contract’s terms.
The employer may or may not desire or intend the
end of employment, yet the result of the unlawful and
intolerable conduct may be the employee walking
away from the job. The constructive breakdown of
employment will expose the employer to liability for
unfair dismissal, discrimination complaints and breach
of an employment contract.
A common constructive dismissal scenario is where
an employer breaches its implied contractual obligation
to take reasonable care for an employee’s health
and safety by allowing the person to be subjected to
workplace bullying. Other examples are where the
employer makes a significant change to an employee’s
remuneration or working conditions without notice or
consultation, or directs the employee to perform tasks
that are unethical or illegal.
The courts and tribunals rarely find that constructive
dismissal arises from a one-off event. Usually, the
employee has to have made some attempts to object to
the behaviour and seek to stop the intolerable conduct
before a court will deem that an employee who has
walked away from a job has been pushed.
Human resou rce professionals need to recognise
the warning signs of an employee being exposed to
constructive dismissal by management and act quickly
It is HR’s responsibility to explain the legal
consequences to a line manager who is engaging in
constructive dismissal practices. An organisation that
ignores an employee’s cry for help will increase its
exposure to constructive dismissal claims.
Forcing employees into a situation where they have no choice
but to leave is as illegal as any other form of bullying.
BY CHARLES POWER, HOLDING REDLICH
Charles Power is a partner
at law firm Holding Redlich,
practising in employment
and industrial relations.
AHRI members are invited
to register for a webinar,
conducted by Charles
Power, on 11 September
2014, that talks more about
constructive dismissal. For
more information visit
This ar ticle is par t of a four-
par t series. Head to HRM
online to read more about
and see the next issue of
HRMonthly for an ar ticle on
discipline and misconduct.
Senator the Hon. Michaelia Cash
Minister Assisting the
Prime Minister for Women
The CEO Institute is excited to announce five
new scholarships for women seeking to
develop their leadership skills in business.
Commencing in 2015, this $125,000 initiative
will fund five 3-year scholarships in The
CEO Institute’s Future CEOTM program in
Melbourne, Sydney, Brisbane, Adelaide and
The Future CEOTM program is a certification
course that equips future business leaders
with the skills, knowledge and contacts
needed to lead a business. The program is
structured around peer groups of people
learning with and from each other, through
a mix of experiential and facilitated learning.
Each group is led by a highly qualified
chairman-facilitator with both professorial
credentials and business experience. And
leads to a post nominal confirming your
Applications are open now!
The Future CEO Scholarship Program
is a great example of experiential
learning, especially for those whose
careers are on a growth journey. I am
particularly pleased that The CEO Institute
has committed to supporting women
through their scholarship program. This
program will make a difference to the
talented women coming through the
women in business
1992 - 2014
18/08/14 4:59 PM
Links Archive October 2014 August 2014 Navigation Previous Page Next Page