The worker formally objected to these changes in an email dated 24 March 2021: “Another startling development is the new seating arrangement details that was sent to me through email dated 18 March 2021. In this new seating arrangement, I have been placed in a common seating area with other staff in a shared room, in my new position as general manager, [event management], whereas the assistant general manager is placed in a private room with a closed door all to himself. This is a clear example of [the employer] breaching the implied duty of mutual trust and confidence, by demeaning me in the eyes of my colleagues.”
‘Contract test’ for constructive dismissal
The Industrial Court in this case (Case No.: 11/4-2879/21) applied the established “contract test” for constructive dismissal, which requires proof that the employer’s conduct constituted a fundamental breach going to the root of the employment contract or demonstrated an intention to no longer be bound by the contractual relationship.
This test focuses on whether the employer’s actions were serious enough to justify the employee treating the contract as terminated.
The court determined that despite the fixed-term contracts, the worker was treated as a permanent employee in practice based on the employer’s actions and communications.
The acting CEO’s email dated 29 March 2021 promised future opportunities, stating: “Later, [event management] will become a subsidiary and you have the opportunity for a career advancement prospects with a better range of remuneration and incentive package.”