In the context of unfair dismissal claims under the Fair Work Act 2009<, a forced resignation, also known as constructive dismissal, occurs when an employee is left with no real choice but to resign due to the conduct of their employer. Understanding the concept of forced resignation is crucial for both employees and employers to ensure that the rights and obligations under the law are upheld.

Definition of Forced Resignation

Under the Fair Work Act 2009, a person is considered to be dismissed if they were forced to resign due to the conduct or course of conduct engaged in by the employer. This means that the resignation was not truly voluntary and rather was compelled by the employer’s actions.

Proving Forced Resignation

The onus is on the employee to prove that their resignation was not voluntary and that the employer’s conduct left them with no other option but to resign. The employee must demonstrate that the employer’s actions were intended to bring the employment relationship to an end or had that probable result.

Considerations include:

• Employer’s Conduct
  The employer must have engaged in conduct that effectively forced the employee to resign. This could include actions such as significant changes to job duties, reduction in pay, harassment or failure to pay wages.

• No Real Choice
  The employee must show that they had no real choice but to resign. This means that a reasonable person in the same situation would have felt compelled to resign due to the employer’s conduct.

• Intent to End Employment
  The employer’s actions must have been intended to bring the employment relationship to an end or have had that probable result.

What Actions Should an Employee Take?

To mitigate the risk of a forced resignation situation, employees should take proactive steps:

• Document Interactions
  Keep detailed records of any concerning interactions with your employer, including changes in job duties, reductions in pay or instances of harassment.

• Seek Clarification
  If faced with significant changes in employment conditions, seek clarification from your employer in writing to understand their intentions and the implications for your employment.

• Consult Legal Advice
  If you feel pressured to resign or believe your employer’s actions may constitute constructive dismissal, seek advice from a qualified employment lawyer. They can provide guidance on your rights, potential legal avenues and strategies to protect your interests. Make a booking with Fox Piper if you require legal advice on this matter.

Taking these actions can help safeguard your rights and provide a stronger basis if you need to pursue an unfair dismissal claim under Australian law.

Case Examples

Situations That Constitute Forced Resignation

• Failure to Pay Wages
  In Hobbs v Achilleus Taxation Pty Ltd [2012] FWA 2907, the employee resigned after being paid less than half of his owed wages over four months. This was held to be a forced resignation due to the employer’s conduct, constituting a dismissal.

• Heat of the Moment Resignation
  In Bender v Raplow Pty Ltd [2011] FWA 3407, after an angry discussion, the employee believed she had been dismissed, while the employer believed she had resigned. The employee continued to attend work, thinking she had to work out the notice period. It was found that the employee did not resign voluntarily.

• Significant Reduction in Salary
  In Owens v Allied Express Transport Pty Ltd [2011] FWA 1058, the employer informed the employee of a significant reduction in salary for a new role. The employee refused to agree and regarded herself as having been dismissed. This was found to constitute a termination of employment at the initiative of the employer.

Situations That Do Not Constitute Forced Resignation

• Resignation Before Disciplinary Action
  In Love v Alcoa of Australia Limited [2012] FWAFB 6754, the employee resigned before attending a scheduled meeting about taking company property without authorisation. This was held to be a voluntary resignation.

• Misunderstanding Employer’s Intentions
  In Blair v Kim Bainbridge Legal Service Pty Ltd [2011] FWA 2720 , the employee resigned believing the employer required her to accept a lower rate of pay or resign. It was found that the employee misunderstood the situation and the resignation was not forced by the employer’s conduct.

Seeking Advice

Misunderstandings about what constitutes a forced resignation can impact an employee’s eligibility for an unfair dismissal claim. At Fox Piper, our experienced solicitors can help you understand your rights and advise on the best course of action. Make a booking online to start the process of receiving advice.

Conclusion

Understanding the concept of forced resignation is crucial for determining eligibility for unfair dismissal claims. If you need assistance or have questions about your rights, contact Fox Piper for professional legal advice and representation. Our team is dedicated to helping you navigate employment law and achieve a fair outcome.