When is employment law like a chess match? When you have to
think three moves ahead.
That's typically the advice for executives who, though they
have not been terminated either expect to be, or believe they have
been constructively dismissed.
How the employee reacts to these situations can make the
difference between checkmate and stalemate. If you are still
working, you have definite advantages, including access to people
Here are some tips to help you make the right moves:
Don't jump to conclusions
Too many senior employees draw unwarranted conclusions. For
example, employees who are transferred or provided new
responsibilities often feel shunted aside — their previous
contributions and service disregarded. Yet, the employer may,
instead, be placing great faith in the employee, giving them new or
If you are in this situation don't immediately resign,
instead sit down with your employer and discuss the reasons
for the changes and what might lie ahead. If the explanation
is acceptable, then the employment relationship has been repaired
and any misapprehensions eliminated.
If it turns out it is a demotion, then you know where you stand
and you have a stronger constructive dismissal case. At the very
least, this dialogue prevents the employer concocting a less
culpable explanation later.
Retain relevant documents
If you are still working but feel your dismissal is
pending, use the opportunity to discreetly take home
copies of relevant memoranda or financial information to rebut any
allegations your employer may make against you.
When I proffer this advice, some say, technically
accurately, "If it is relevant the employer must produce
it in the litigation process."
Without casting aspersions on employers, most of whom obey the
rules, evidence can be deleted inadvertently, innocently
overwritten, lost through normal business processes or simply not
located given the volume of electronic and paper transactions. If
there is a large volume of material, it should be done discreetly
over a few days. I don't recommend emailing such information to
your house (or lawyer's office) because that can easily be
detected. And be careful that the information you take home is not
used for any other purposes. If it is, for example, used for
competitive purposes it constitutes cause for dismissal and would
be fatal to any claim for wrongful or constructive dismissal.
Record important meetings
Although I rarely recommend this, it is not illegal to record a
meeting or telephone call in which you participate.
It is sometimes useful to record an important call or meeting. With
smartphones, the technology is readily available and
raises no suspicion. How and when to use such evidence is up
to your lawyer. If litigation ensues the recording must be
Put nothing in writing without your legal advisor's
Where the employee's feelings have been hurt, there is
an inclination to lash out and write seething denunciations of
the employer's actions. Although cathartic, it may seal
the employee's fate and the judge's potential
sympathy. Harsh words can cause irreparable harm to the
relationship and provoke your dismissal when
that had not been the
Above all, do not resign. If you have correctly
adduced the employer's intention, why forfeit the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
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