Forced Resignation

If an employer puts pressure (directly or indirectly) on an employee to resign, or makes the situation at work intolerable for the employee, it may be a forced resignation or “constructive dismissal”.

A constructive dismissal – forced resignation is where:

  • the employer has behaved in a way deliberately aimed at causing the employee to resign
  • the employee is told to choose between resigning or being dismissed
  • there has been a breach of duty by the employer (i.e. a breach of the employment agreement or of fair and reasonable treatment) such that the employee feels he or she cannot remain in the job.

However, not all conduct that upsets an employee will be enough to lead to a constructive dismissal. The conduct must be sufficiently serious to justify the employee leaving his or her job. Also, there must be a substantial risk that the employee would leave his or her job as a result of the employer’s conduct, and this risk must have been reasonably foreseeable to the employer.

If an employee feels that they are being pressured to resign then best practice is to raise this with their employer so that there is an opportunity to discuss the issue and try to resolve it. If the matter cannot be resolved and the employee feels that they had no choice but to resign, then the employee can challenge the forced resignation by raising a personal grievance.

Always call us first, once you resign it is harder for us to get you a settlement.

 

If your boss asks you to resign, ask him/her to put it in writing eg a text or email. 

 

Have you already resigned?

If you can answer yes to the questions below, then you may have good grounds to to claim you have been constructively dismissed.

  • Did you really have no choice? 
  • Did you try everything you could to resolve the situation before resigning?
  • Do you have good evidence of what you claim as the cause of your resignation?

    Some other examples

    • If you are given the option to resign or be demoted
    • If you feel you are working in an Unsafe Workplace
    • Assault on an employee
    • Abuse of an employee

We are a No Win No Fee organisation. This means that we will only charge a fee if we are successful in obtaining a financial settlement for you in addition to other terms of settlement, e.g. written apology and reference, changed from being fired to having resigned. Contact us through our contact form. or call our helpline : 0800 NO WIN NO FEE

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Wages Protection – Unlawful Deductions

Deductions on wages are governed by the Wages Protection Act 1983.  No payments can be unlawfully deducted from wages.

It is the duty of the employer to make regular returns on PAYE on your behalf, in addition other deductions may apply including KiwiSaver, child support payments and student loan repayments. If you encounter a problem on payments of your tax we can help investigate. We can help ensure you are being paid above minimum wage for hours worked and the pursuant to your employment contract you are being paid at the correct rate.

If you have a problem with your employer making Unlawful Deductions from your wages we can help you get your money back and also help resolve any dispute you have with matter that led to the deduction. We can also help you if your wages are underpaid or late paid outside statutory provisions. We can look at your holiday entitlements that should be reflected in your pay.

Where you have any concerns regarding your pay contact us to discuss. Sometimes a wage problem is the beginning of a bigger problem with your employer. We can act quickly on your behalf to keep things from escalating.

Permanent and Casual Employment

In the absence of a written employment agreement a casual employee may be considered a permanent employee if they regularly work for the employer.

There can be a thin line between permanent and casual employment. In some cases, employment may start on a casual basis, but evolve over time to be permanent – even if the parties don’t realise this has happened. There are several points of reference that need to be determined in order to decide if on the facts a particular job is permanent or casual. Such points include the following:

  • A person may be considered a permanent employee if they are found to regularly work for the employer. However, where any such employee has signed an employment agreement which designates employment as casual then it will be more difficult, but not impossible, to argue that such employment is in fact permanent.
  • A part-time employee is likely to be classed as a permanent employee if that employee reasonably held an expectation of a continued offer of regular employment by the employer.
  • Initial casual employment may change to permanent employment if there is evidence that, over time, such employment evolved from an irregular and uncertain offer to a regular and certain offer of employment by the employer.

We can help you determine whether your employment is casual or part time and pursue any grievance you may have arising from your employment.

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