Basic Things You Need to Know, Resignation

Basic Things You Need to Know

Resignation is an important topic, the Fair Work Commission has published hundreds of pages of material to decipher, nothing wrong with that if you’re a lawyer and you got sacked, or now you’re dismissed you have plenty of time to read the bench books published. (when you should be looking for another job) Sometimes in life, it’s better just to keep it simple, let’s get to the point.

It is natural for people to resign from their work if they feel that they can get better offers and a decent raise from other companies. There is nothing wrong with that, as everyone always has the option to seek out their worth and gain the appropriate type of compensation for their efforts and skill level.

Shifting jobs is not a forced resignation because you found a better place to go/move to, the person making the decision to leave is satisfied with what they are about to do, and no one is egging them on to push through with their resignation. However, there are also times when a person may be forced to resign or make a decision that is yielded out of frustration and lack of options.

You may think that such a condition isn’t fair, and you are actually right in thinking of it that way. It’s about choice, you can sometimes stay or you can go, and it’s up to you, you pick the day to leave, this is not a forced resignation, your argument has been if there is one, there was no choice.

Forced resignation, also known as constructive dismissal, is when an employee is forced to resign as they no longer have any other choice in their current workplace. It isn’t about them having an idea they are uncomfortable with, but rather, they are placed in an impossible spot where the other option may just very well be their immediate termination.

If you happen to be facing a similar situation and you want to know more about it, look no further than the helpful pieces of information we have listed below.

1. Forced Resignation Is in the Category of Unfair Dismissal

The condition of being forced to resign beyond goodwill is categorized as part of unfair dismissal. The words unreasonable and harsh are usually used to describe this method of getting rid of employees. Most of the time, it is the employer’s fault instead of the said personnel’s. Luckily, the Fair Work Act 2009 (Cth) has laws in place to protect the rights of employees who are currently going through this very hard situation.

If there is a claim, the Fair Work Commission (FWC) will investigate, analyse the incident, and determine whether a person was indeed treated unfairly and fired without any good basis. It does this by way of you lodging an unfair dismissal application. (f2 form), be aware of the very strict 21 days to lodge a claim

• For the purposes of s386(1)(b) of the FW Act, a resignation will be forced if the employee has no real choice but to resign;
• the employee can prove that they did not resign voluntarily;
• the employee can prove that the employer forced their resignation;
• the employer took steps with the intention of bringing the employee’s employment to an end.

2. Forced Resignation can be unlawful

Employers may try to reason with you or your lawyer, but forced resignation will always be considered an unlawful act no matter what they say. Of course, if the employee in question is incompetent and known to be a trouble maker in the workplace, the employer has every right to terminate them, but not by bullying them out of their job, to avoid an unfair dismissal claim.

However, such a process is based on documenting and presenting clear evidence of the fact. If a person is performing remarkably and significantly contributes to company growth, there is no reason for their employer to get rid of them unfairly.

3. Forced Resignation Has Many Pre-termination Methods

Sometimes, an employer may play around just to make it seem like they aren’t being fair to the employee. Regardless, their actions will still instigate their intentions as they would usually still appear biased against the employee. Some examples of their actions may include greatly decreasing their salary, demoting them to a lower position, and even shifting their work schedule at inconsiderate hours.

These pre-termination methods may seem subtle to others. Nevertheless, for the employee experiencing them, those are significant signs that they are being forced on their way out, whether they like it or not.

4. Reasons that forced you to resign

Examples of constructive dismissal situations include:

• Workplace bullying and harassment
• Continuous poor treatment, (long hours, huge workloads)
• Underpayment of entitlements, forced to work overtime for free
• Serious safety concerns, OH&S breaches
• Sexual harassment
• Physical violence, name calling
• not paid on time, short paid
• Encourages you to resign
• Micro manages you, to the point is its possible to do your job
• Yells and screams at you, invades your personal space.
• Discriminates against you over illness, injury.
• Demotions, reduction in pay
• Altering the position unreasonably, to their absolute determent

It is a difficult test the word “forced”, almost had physical connotations of being ejected from the workplace, you argument, must be focused, and to the point, the legal onus lies with the employee. My view is you never resign, take it to the Fair work Commission as a dispute, if the employer wants to see the back of you, wants you gone, they have to pay for it.

Conclusion

Unfair dismissal is never tolerated in our society, Australians still abide by the sense of “a fair go“. This is reflected in the Fair Work Legislation. If you think that your employer is setting you up for failure, is clearly out to get you, is sort of going kind of weird, that this is all going against your rights as a worker, do not hesitate to ask us at “A Whole New Approach” for help or assistance, our advice is free.

Knowing that forced resignation is a form of unfair dismissal, that it is unfair, and possibly unlawful and manifested in various ways may help you better understand your possible situation. Know your rights and stand up for yourself against anything that may put your career and hard work at risk and income.

If you are looking for a representative that handles unfair dismissal claims in Melbourne, look no further than our expertise and advice here at A Whole New Approach. We are a company that represents employees against unfair, unlawful dismissal, discrimination, bullying, & work harassment. Contact us today and let us discuss all your available options.

We are A Whole New Approach P/L, we are not employment lawyers, but the nation’s leaders in advocacy, representation, commentary, and research relating to all matters in the workplace. Have a question, or want to discuss a topic, give us a call on 1300 766 700.