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“Have Employers ‘Bored’ You Enough Yet?” Examining Constructive Dismissals as the Corporate Poison

The authors are Malvika Pachauri and Shreya Shekhar, second year students at Dr. Ram Manohar Lohiya National Law University Lucknow.


Introduction


Here’s food for thought: Imagine being salaried for doing absolutely nothing, just you and your thoughts keeping you tremendously busy, being idle. One would assume this to be the nonpareil employee situation. However, if this situation is looped over a course of time, the marginal utility associated with job satisfaction is bound to decline and, eventually will ignite the inferno of boredom. Frédérick Desnard affirms this when he ended up suing his ex-employer, Imparfums, for “bore out”. In conversation with Le Monde, we notice Desnard venting about the consequences of being paid despite not being productive. This cannot but make us ponder about the employer-employee debate revolving around finding the equilibrium between the employer’s “right to bore'' and employee’s “right not to be bored” in modern workplace settings and the related legal issues surrounding the same.


Analysing Trends of the “Bore Out”


Simply put, the bore-out phenomenon is a form of disengagement from the work allotted as a result of being underloaded. 43% of employees in the United States reported being bored, leading to consequences such as significant losses in productivity, higher jumping ships in jobs, issues pertaining to retention, and lower morale. Being bored during employment, when extended or intensified leads to severe negative consequences including quitting, which is apparent in the study that finds that bored workers were two times more likely to leave their job.


Interestingly, there is an identifiable link between the concept of bore out and constructive dismissals. Constructive dismissals refer to actions taken by employers in workplaces that intentionally make working conditions unfair and burdensome, wherein the employee is eventually forced to leave the job. Putting the two definitions together doesn't take Sherlock to find out how ‘boredom of employees’ can be misused by employers to avoid parting with the benefits and severance pay they would otherwise be bound to pay employees they wanted to lay off. Upon perusal of data published by the U.S Equal Employment Opportunity Commission (EEOC) we notice that 73,485 charges were filed against unjust termination of employment which includes factors such as race, sex and origin amongst others. Though boredom may not be the leading cause of filing such cases, it cannot be ignored considering the data presented. One apparent reason for not taking the employers to Court or filing a charge on account of boredom caused may simply be the lack of awareness regarding this as a viable option.


On the other hand, the ‘right to be boring’ is also a recognised right, as seen in the case of Mr T. v. Cubik Partners, wherein it was decreed that a person cannot be fired for not attending after-work ‘happy hours’ with his co-workers on a regular basis. Hence, these cases raise questions as to what extent ‘boredom’ and its constructions can be employed in workplaces and whether we are equipped to deal with such situations in India.


In Morgan v. Vitran Express Canada Inc, the Ontario Court of Appeal held that a constructively dismissed employee was not under any obligation to accept a demeaning or substandard position with their employer to allay damages.


The legal scenario upon perusal of foreign case laws makes it evident that constructive dismissals are an accepted defence used by employees where it seems that there was a ‘voluntary’ resignation, but in actuality, it was due to intolerable detrimental circumstances designed by their employers.


Legal Scenario in India


Reading in between the lines: A Statutory and Case Law Analysis


In India, constructive dismissals are not explicitly mentioned as a defence available to employees, but upon perusal of Bare Acts, we derive its indirect inclusion. In the Industrial Disputes Act 1947, Section 25T prohibited dismissal by unfair labour practices such as victimisation, patently false reasons or bad faith. Additionally, the provisions of the new labour codes such as in the Industrial Relations Code, 2020, clause 5(a) of the Second Schedule includes dismissal of workers by way of victimisation and clause 5(b) includes dismissal ‘not in good faith, but in the colourable exercise of the employer’s rights’, for which there is a prohibition under Section 84 punishable with a fine under Section 86(5). Hence upon analysis, this highlights that even the new legislation does not address this issue directly. In fact, positive reforms it does plan to bring have currently been stalled due to rigidities in the labour market in certain States and opposition by Trade Unions by deeming them to be “anti-worker”.


According to Black’s Law Dictionary, “dismissal” means to “send away; to discharge; to cause to be removed”.  A broad construction of these provisions, read with this definition, would allow induced boredom to be seen as a form of victimisation done in bad faith and recognise it as an unfair practice that, as of now, goes undetected.


Precedents also work in this favour and give a clearer idea of the recognition of constructive dismissals as a concept, as seen in X v. Registrar, 2022, where involuntary resignations were deemed cases of constructive dismissals. Additionally, the Supreme Court has maintained that there needs to be an absolute intention to give up office for the resignation to be unconditional. Even further, we see in the case of P.K. Ramachandra Iyer & Ors v Union of India & Ors that the Court reinstated the employee who had resigned due to sheer frustration owing to unfair treatment at work, which was utilised by the employer as a golden opportunity to dismiss the employee by accepting the resignation.


Need for Reform and Possible Guidelines


There is a possibility of discrepancies in interpretation by Courts of the current system which causes a disbalance between employer and employee power. Hence, to bring further clarity and avoid such power play, three suggestions by the Authors would be to (a) specifically recognise and define the scope of constructive dismissals as a form of unfair labour practice, (b) acknowledge ‘boredom’ as one of the causes of constructive dismissal, and, (c) frame general guidelines which would resolve as to what extent the ‘right to bore’ extends. Simple examples of what such guidelines could include would be measures to maintain records of the quantum, quality, and substance of work done by each employee and analyse any significant deviation from the same as well as to have an effective redressal system within the organisation where induced boredom becomes a legitimate and seriously taken complaint made by an employee.


Conclusion


Though, technically, being bored at work in itself cannot be a ground to sue, it appears that owing to certain circumstances, constructive and unfair dismissal based on manufactured boredom may be claimed by an employee. This has not been witnessed in Indian Courts till now, but the Frédérick Desnard case has opened up doors by bringing to light detriments to an employee’s professional life, which go undetected due to the lack of seriousness associated with them. This would have the effect of waking bored employees and alerting them about the possibility of a potential remedial course in Indian Courts.


We observe that statutorily there is scope to include ‘boredom’ under constructive dismissals as a component of unfair labour practices, which is also acknowledged by Courts. There is a need for defined guidelines and dynamic interpretations of existing and future legislations pertaining to employment termination requirements to prevent misuse by both employers and employees. However, to have an entirely inclusive and sound labour welfare system in India where human resources are abundant, it is pertinent to ensure that this pool of resources doesn’t lose its morale or is exploited by the Chairman of the ‘bored’ room.

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