Burden of Proof:
Unlike all other dismissals, where an employee claims that they have been constructively dismissed the onus/burden of proof is placed upon them to prove that their resignation was justified. In effect, they are required to prove that they have exhausted all other avenues of resolution before they have resigned from their position. This would generally require them to bring their grievance to the attention of their employer, follow all the employer’s grievance procedures and industrial relations procedures, as outlined in their contract or the employee handbook. Only where these procedures have not achieved an appropriate outcome or where the employer has refused to comply with or engage in these procedures, then should an employee consider resigning from their position. A failure to invoke these procedures may leave the Court or Tribunal open to rejecting a claim of constructive dismissal.
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