Step 1: Check eligibility
• Burden of proof is on employee to prove they are eligible.
1. Time limit – must bring a claim in the ET within 3 months (less 1 day) from the date of
EDT (effective date of termination). EDT = usually the last day that the employee worked
for the employer. Time limit to bring a claim in the civil court = 6 years after EDT.
2. Must be an employee (S94 ERA 1996) – defined as “an individual who works under a
contract of employment” in S230(1) ERA 1996.
If they are eligible, move on to Step 2
Step 2: Has there been a dismissal?
• Dismissal can arise in 2 ways:
1. Actual dismissal – “the contract under which he is employed is terminated (with or
without notice)” – S95(1)(a).
o If dismissed with no notice = a ‘summary dismissal’.
o If employer’s words are ambiguous = how would the reasonable listener have
interpreted them?
o If employee given a ‘choice’ to either resign or be dismissed – if they choose to
resign = treated as dismissal as they have been ‘forced’.
OR
2. Constructive dismissal – “the employee terminates the contract under which he is
employed (with or without notice) in circumstances in which he is entitled to terminate it
without notice by reason of the employer's conduct” per S95(1)(c).
• Ie: if the employer commits a repudiatory breach = employee can resign and treat
the contract as discharged = has been constructively dismissed.
• Repudiatory breaches of contract may include:
a) Unilateral reduction of pay;
b) Pay below minimum wage;
c) Fundamental change to job description;
d) Breach an implied term, such as relationship of confidence and trust;
e) Can look at cumulative effect of minor breaches (by employer) – ie: ‘last straw’;
f) A threat to change T&C’s and to dismiss employee if changes not accepted.
• Employee must resign within a reasonable period following the breach – if not =
taken as having affirmed the contract and waived the breach.
• NB. Expiry of a limited term contract is NOT dismissal for the purposes of a WD
claim.
If there has NOT been a dismissal = no WD claim. If there has been a dismissal = move on
to Step 3
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