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Guest post by: Michael Smyth Become an Author

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Why an employee resignation won’t save you from a personal grievance
You would think that if an employee resigns then that automatically prevents her from raising a personal grievance. Well, that is not necessarily the case since the law recognises that there may be situations where the employee has no option other than to resign because the employer has done something which is contrary to the employment relationship. That can either be a breach of the employment agreement or embarking on a course of conduct designed to coerce the employee to resign.
For example, I represent a number of businesses in the hospitality/restaurant industry who employ staff on an hourly basis under a roster system. At the beginning of the employment they are offered a certain number of hours per week. Six months into the employment and the employer, realises that their employee must go, so the suggestion is simply to reduce the employees hours until the job becomes untenable for them. Such action would lead to a claim of constructive dismissal and is not recommended.
So what can you do?
Since the law anticipates situations where the employer embarks on a course of conduct that is designed to coerce the employee to resign, it doesn’t seem to leave the employer with many options. Except one: that is, to follow the law. This sounds like a contradiction in terms, but in all my years of employment law practice I have found that following the law is the most effective way of coercing an employee to resign. To understand what I am talking about you need to have an appreciation of the psychology of the non performing employee.
The psychology of the non performing employee
Most of the time, non performing employees know it. In other words, they are not naive to the fact that their performance is below par. They just hope that they will get away with it long enough to keep taking home the pay cheque. You see, non performing employees have probably not performed well all their working (and school) lives. They probably won’t change, which means they will do exactly the same thing in their next job. But they also know that in order to secure that next job it is going to be a hell of a lot harder if they have been dismissed. So, as soon as they realise that the writing is on the wall, they will choose to resign rather than risk dismissal.
How to show them that the writing is on the wall
The way to show your employee that the writing is on the wall is to go through a proper performance management process with her, warning along the way (as the law requires) that her job may be in jeopardy.
The important thing here is to dot the ‘i’s and cross the ‘t’s with your process. Do something wrong and you give the non performing employee an avenue to argue unfair process and seek an exit package. Close that avenue down and the employee has only one option – to resign.
Following the right process is easy
Many employers believe that following the right process is tricky and full of pitfalls. That is not the case at all. Providing the substance of the process is fair you will be okay. The key to getting the right result you want is actually in how your letters are drafted. I am talking here about the letter that causes the various performance management meetings and the follow up letters reporting the outcome of those meetings. Word them just the right way and your employee will get the message that the writing is on the wall and you won’t be exposed to a personal grievance. So for those difficult employees, always get help from an employment lawyer to guide you through the process – you might be pleasantly surprised by an employee resignation!

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