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Under the Fair Work Act 2009 (Cth) (the FW ACT), the term dismissed is defined where a person’s employment has been terminated at the employer’s initiative or a person was forced to resign because of the conduct or course of conduct engaged in by the employer. A forced resignation, also referred to as a constructive dismissal, is when an employee has no real choice but to resign and themployee lodged a claimus, the onus is on the employee to prove that their resignation was not voluntary. This issue may form the basis of a jurisdictional issue when dealing with claims such as Unfair Dismissal applications in the Fair Work Commission.
The employees’ constructive dismissal claims
Despite an employee feeling they have no other choice but to resign, constructive dismissal claims are extremely difficult to win. A recent case before the Fair Work Commission demonstrates the high bar required to prove a forced resignation.
In McKean v Red Energy Pty Ltd,[1] the Fair Work Commission (FWC) rejected an employee’s argument that he was forced to resign because of his employer’s actions and upheld the employer’s jurisdictional objection to the employee’s unfair dismissal application that he was not “dismissed”.
The Victorian employee lodged a claim of unfair dismissal, claiming his employer forced him to work from home despite him being ill-equipped to work from home. The employee argued that he had been directed to work from home without being provided with ‘the appropriate equipment necessary to carry out his work from home, namely a desk’. Furthermore, the employee contended that the company’s conduct, namely its refusal to provide or pay for a desk, or to grant him leave or allow him to work from the office, and its failure to consider his personal circumstances, left him no reasonable choice but to resign and that the company ought to have realised this.
Deputy President Colman, of the Fair Work Commission (FWC), rejected the employees’ contention, labelling the resignation as a “position of principle” because the employee felt that he should not be required to spend his own money to buy a desk on which to work from home. Deputy President Colman, of the Fair Work Commission (FWC), held that the employee could have purchased a desk cheaply and since lodging his unfair dismissal claim, he had purchased a table and so on any reasonable view, the prospect of having to pay a small sum to buy a desk was not a matter that forced the employee to resign.
Deputy President Colman, of the Fair Work Commission (FWC), found that the employee was not left with no reasonable choice but to resign but instead he freely chose to do so. The employee’s letter of resignation made no reference to compulsion, because none existed and he had a number of various alternatives available to him, which the Fair Work Commission examined. Most obviously, he could have bought a desk but he could have also sought to borrow a desk from a friend, he could have asked for a shorter period of leave or contacted WorkSafe about his safety concerns. In this regard, Deputy President Colman, of the Fair Work Commission (FWC), found that the employee had decided instead to bring his application in the Fair Work Commission. That was his choice. The employee was held not to have been forced into resigning and the application was dismissed.
Satisfying the test of constructive dismissal
This case demonstrates the difficulty in succeeding in a claim of constructive dismissal. The Fair Work Commission has highlighted the importance of examining all alternative options available to an employee, before a firm decision is made to resign. Whilst it is your application, the onus is on you to prove the resignation was forced, in order to satisfy the test of constructive dismissal, as it was you who ended the employment relationship.
In order to satisfy the legal test for a forced resignation or constructive dismissal claim, the employee must demonstrate that the employer has taken action with the intent to bring the relationship to an end or that has that probable result. In the words of the Full Bench, of the Fair Work Commission, in O’Meara v Stanley Works Pty Ltd,[2] adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli,[3] the test is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.
Similarly, the Australian case of Mohazb v Dick Smith Electronics Pty Ltd (No 2),[4] states that “an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”.
Thus, the Fair Work Commission will look at why an employee resigned on that particular day and they may pose the question, why did you not resign the day before or the day after? Thus, the employee must first satisfy the Fair Work Commission that the dismissal was forced, constituting a dismissal, prior to even discussing whether it was fair. Consequently, an employee is always better off being terminated than resigning because there is one less hurdle to overcome, should the employee choose to take action in respect of their resignation.
Unfair Dismissal Support
Depending on your case and which state you are from, even after you have been dismissed, you can either pursue a General Protections Application in the Fair Work Commission, or a Discrimination Complaint in the relevant Human Rights Commission.
To discuss what options may be best in your circumstances, call A Whole New Approach on 1300 766 700 for an obligation-free consultation.
By Gary Pinchen.
Related Reading:
[1] [2020] FWC 5688.
[2] (2006) 58 AILR 100.
[3] [2018] FWC 1074.
[4] [1995] IRCA 283.
