The Employment Court recently considered whether an employer’s decisions within a performance review process could amount to a constructive dismissal (i.e.: where employment circumstances effectively force an employee to resign).
Dr Henderson was the Director of Nursing and Midwifery for the Nelson Marlborough District Health Board. She left her employment after the DHB Chief Executive initiated a performance review process into her. Dr Henderson argued that through this process, the DHB breached their duty as an employer, causing her to be constructively dismissed.
While Dr Henderson was light on specific acts which breached the employment duty, she relies in part on a memorandum sent by her employer as part of the performance review process. In the memorandum, the DHB Chief Executive proposes two options to Dr Henderson: “Continue long term in the role” or “Seek your next career move”.
We think that the employer treaded a fine line here. While the details of each option were quite diplomatic in their language, we think that the titles given to each option leave something to be desired.
Employers should be cautious about the words they choose in navigating performance reviews. Judge Smith found that the words where “injudicious”, but “did not convey a message that [the DHB Chief Executive] intended her departure”. While the Judge found that there was no constructive dismissal, this case serves as a valuable reminder that employers should approach performance review processes tactfully. Consulting with your legal team is the best way to ensure that your intentions won’t be misinterpreted.
