|29th IBIMA Conference
3 - 4 May 2017
Constructive Dismissal: Is it really a Re-Frame of Commercial Fraud?
Gary Lilienthal and Nehaluddin Ahmad
Despite continuing and apparently ubiquitous news of employee crimes against their employers, it appears that there is a continuing movement in a worldwide corporate crime wave. This article, therefore, will critically assess the points of dispute, at which employees and employers part company, and the concurring employer behaviours, such as the employer’s repudiation of its common law duty of trust and confidence. The doctrine of constructive dismissal has applied where the employer did not expressly terminate the contract. Instead, the employee would terminate the contract, asserting an entitlement to terminate because of the employer's wrongful, repressive and intolerable conduct. It suggests the employers have succeeded in re-framing effective dismissal into an employee abandoning his post. The research question is whether judicial acceptance of re-framing of de facto dismissal is, in actuality, veiling an act of employer commercial fraud. The article tries to show that one specific form of re-framing by employers amounts to that kind of deceit that precipitates commercial fraud. This suggests use of a methodology based in Goffman’s 1974 work on frame analysis. The research will likely show that, if the employer repudiated the employment contract, by capriciousness, in disregarding or acting against the employee’s issues of necessity, the inherent re-framing would constitute commercial fraud by the employer, but likely be excused and re-framed as constructive dismissal by judicial doctrine.