Your Rights: Drug-taking boss forced me to resign

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Your rights: Drug-taking boss forced me to resign
Monday July 24, 2006
By Rani Amaranathan of Phillips Fox.


Q: I resigned from my position because my employer's behaviour was volatile and I was afraid of him. He used drugs including the drug 'P'. Am I likely to be successful if I bring a claim of constructive dismissal against him?
A: If your employer is taking P he is engaging in illegal conduct. But whether this amounts to a constructive dismissal depends on the effect the drugs are having on his behaviour. I am not sure what the 'volatile behaviour' of your employer is. If the drugs are simply turning him into an un-likeable manager, that is unlikely to be sufficient. But if he becomes bullying or abusive, or your safety is at risk, this could give rise to a successful claim.
For a constructive dismissal claim to succeed, the employer must have caused a 'dismissal' and the dismissal must have been unjustified.


In the leading case on constructive dismissals the Employment Court said a constructive dismissal might arise in one of three ways:
* Where the employee is given a choice of resignation or dismissal.
* Where the employer has followed a course of conduct with the deliberate and dominant purpose of coercing an employee to resign.
* Where a breach of duty by the employer leads a worker to resign.

If you do resign, then, depending on what your employer's behaviour has been, the situation may fall into the third of these categories - a breach of duty leading you to resign. The breach must have been serious enough to merit you leaving your employment. It must have been 'reasonably foreseeable' that the breach would cause your resignation.
In some circumstances, an employer's behaviour can be a breach of duty serious enough to amount to a constructive dismissal. It will depend on the way the employer is behaving. You say your employer is volatile and you feel afraid, but you have not given any more details.

There are some guidelines from the case law on constructive dismissals relating to an employer's behaviour:
Intimidating or abusive conduct might give rise to a constructive dismissal.
An abrupt management style alone might not be sufficient.
Something more than simple rudeness or lack of courtesy is required. In one case a 'blunt, bad tempered, unfeeling' employer was found not to have caused the employee's constructive dismissal.

In another case, the Employment Relations Authority said it was not enough for the employer to be difficult to work for or a poor employer. It required evidence that no reasonable person could be expected to put up with the employer's behaviour.
Personal attacks and verbal abuse might give rise to a constructive dismissal. For example, where the manager's management style was domineering, blunt and abrupt, rude, unpleasant, abrasive and bullying and included name calling.
You mention that you are afraid of your employer when he is on 'P'. Employers have an implied duty to provide a safe workplace. They also have a duty under the Health and Safety in Employment Act 1993 to provide a workplace free from harm. So if your safety at work is at risk, you might also have grounds for a constructive dismissal based on breach of these duties.
Your nature and the way the employer's behaviour is affecting you might also be relevant. In one case, the employer's management style caused stress and depression. In contrast to the 'domineering' employer, the employee was 'gentle' and 'sensitive'. In these circumstances, a resignation is more likely to be a foreseeable result of the employer's breach of duty.
You should assess whether your employer's behaviour is sufficiently serious to warrant you leaving and claiming constructive dismissal. A 'volatile management style' may be insufficient. But if your employer is bullying or abusive when taking drugs, that might give rise to a constructive dismissal.
The likelihood of your claim succeeding will depend on the details of your employer's behaviour and the affect on you. If you consider your employer's behaviour is a serious breach of duty to you, you might have grounds to resign and claim constructive dismissal.
First, you should complain about the employer's behaviour, explain its effect on you and give your employer an opportunity to improve his behaviour. If you do resign, you should explain that you are resigning because of the employer's behaviour. To make a claim, a good first step is to contact the Employment Relations Service.

http://www.nzherald.co.nz/section/11...ectID=10392596