An employee may have concerns about their workplace but a constructive dismissal claim may be hard to successfully prove.

In a recent Employment Relations Authority decision a former zookeeper at Hamilton Zoo was unsuccessful in her claim that she was constructively dismissed even though she was awarded $18,000 compensation for an unjustified disadvantage claim regarding the behaviour of one manager that the Authority considered to be “very close to amounting to sexual harassment”.

Ashleigh Sanders worked at Hamilton Zoo from 2017 until December 2020. During her employment she developed a growing list of concerns about the Zoo. There were complaints about staff shortages, heavy workloads, rosters being released late, difficulties taking leave, a lack of training and development opportunities, animal welfare and the way the Zoo was managed.

The appointment of a senior manager, anonymised in the Authority’s decision as “T”, caused Ms Sanders concern as she considered that T had created a culture of fear. She said he privately approached staff, asked questions about colleagues and used information he obtained against people. A colleague described him as “grooming” people he believed he could control and trying to get rid of those he could not.

T’s conduct towards Ms Sanders became increasingly personal. He contacted her by txt outside working hours, initially about work, but later about her personal life. After Ms Sanders separated from her boyfriend, who also worked at the Zoo, T discussed the former boyfriend’s work performance with her. He asked her out for coffee on one or two occasions, which she declined. When she tried to put some distance between them, she said he continued approaching her and calling her into his office.

Ms Sanders told a friend that T had said her relationship with her former boyfriend had damaged her prospects for training and development. On another occasion, she said he told her that she would not get anywhere because managers did not like her, while also telling her that he personally liked her and would support her.

The Authority accepted much of Ms Sanders’ evidence about T. There was no apparent legitimate work reason for the level of contact he initiated, particularly outside working hours. The Authority also accepted that he had persisted in seeking personal information from Ms Sanders after she had indicated that she did not want to discuss it.

The problems at the Zoo were not confined to Ms Sanders. Concerns about fatigue, morale, staffing and bullying had been raised more generally. A staff engagement survey found that the Zoo’s engagement score was below set benchmarks, with favouritism, fatigue and low morale among the concerns identified.

The Zoo subsequently took a number of steps, including changing rosters, increasing staffing, reviewing health and safety procedures, providing counselling and employee assistance support, and introducing measures intended to reduce workload and provide emotional support for zookeepers.

Ms Sanders continued to struggle. In October 2019 she suffered a panic attack at work and received immediate assistance from HR and a counsellor. She subsequently had a number of health appointments and counselling sessions. She described her mental health as deteriorating, with increasing anxiety and depression.

But T had left the Zoo in October 2019. Dr Baird had became Zoo director. The Authority found that he regularly discussed matters with Ms Sanders, respected her work and was open to hearing her concerns.

Nevertheless, on 1 December 2020 Ms Sanders resigned, saying that her mental health was “severely compromised” by working at the Zoo and that she could no longer continue. She subsequently claimed that she had been constructively dismissed.

There are generally three categories of constructive dismissal. The first is where the employer effectively gives the employee a choice between resigning and being dismissed. The second is where the employer embarks upon a course of conduct intended to bring about the employee’s resignation. The third, the one relied upon by Ms Sanders, is where the employer breaches its obligations to the employee so seriously that the employee is justified in resigning.

The Authority accepted that T had behaved badly, but he had left more than a year before Ms Sanders resigned. There was also evidence of substantial support being provided to Ms Sanders after T’s departure. The new management had attempted to engage with her concerns, while she had access to HR support and counselling.

The Authority also found that there was insufficient medical evidence to establish that the earlier events had caused Ms Sanders to reach the point where she could no longer work at the Zoo.

There was a further problem. Ms Sanders did not made a sudden departure. She had sought references from people at the Zoo at least a couple of weeks before resigning. That suggested a considered decision to leave rather than a resignation forced upon her by an employer’s conduct.

The Authority concluded that even if there had been breaches of duty which contributed to the resignation, they were not sufficiently serious to make the risk of resignation reasonably foreseeable. Ms Sanders claim that she had been constructive dismissed failed.

There is a perception that if an employee may have been treated badly treated and resigns because they are unhappy, the law will regard that resignation as a dismissal. It does not. Constructive dismissal can be difficult to establish. Read more....