Forced Resignation? Constructive Dismissal?
If you have been forced out of your job, you are entitled to lodge an unfair dismissal claim.
Being forced to resign is not properly understood. The way we put it is this. Every week thousands of Employees resign, they are not paid enough, didn’t get the promotion they wanted, the boss has given them extra duties, told them off for being late to work when it wasn’t their fault, the boss is a bully.
The list is endless. Most of these Employees think they are forced into leaving and changing their job. But the reality is they have a choice, they can stay and put up with the conditions or they can leave, there is a choice, it is up to the employee to decide, do they stay or do they go.
This not the test of a Constructive dismissal. The test is, there is no choice. The Employer has embarked on a course of action to make you leave, or the conditions in the workplace are that impossible that no reasonable person could stay. The industrial relations and Fair Work Australia decisions imply an almost physical ejection from the workplace.
NEED HELPING WITH LODGING AN UNFAIR DISMISSAL APPLICATION?
We provide affordable, support to help you with your unfair dismissal claim against your employer.
Examples are:
Resign now or we will fire you, Resign now or you won’t like what’s going to happen next, sexual harassment, big cuts in pay and conditions, unreasonable relocation, physical violence or threats, changed from day to night shift knowing you cannot do it, having your pay structure altered to commission-based, having the company car taken off you, constant discriminatory comments or actions, the list is endless.
I will repeat the test, on the day you resign, or when you walked out that door, did you have a choice??.
Call us today to discuss your circumstances, try not to resign until you get competent advice.
Not all industrial relations or workplace situations are straight forward.
Workplace bullying is quite difficult. a lot of bullying and harassment are subtle or covert. False, malicious or unsupported accusations, unreasonable or excessive discipline, victimization, indirect discrimination. When does bullying cross the line to meet the test of forcing someone out of their employment?
You know your boss or a work colleague wants you out but proving it can be difficult. It is important to keep good records of events at home, and having lodged complaints in writing with your employer. You may think sometimes it is a waste of time, but it is important you have a history of trying to stop the bullying. This is important when the matter proceeds to the Industrial Relations Commission, Equal Opportunity Commission, or to Fair Work Australia, FWA.
Please be aware of the following timelines:
- 21 days to lodge an unfair dismissal claim
- 21 days to lodge an unlawful dismissal claim
- One year to lodge a discrimination complaint.
These unfair dismissal and unlawful dismissal timelines are strictly enforced if you have a legitimate reason for being outside these timelines you may still be able to lodge a claim.
The year to lodge the discrimination is loosely enforced, depending on the circumstances and the strength of the claim
ABSOLUTELY NOTHING ON THIS SITE CONSTITUTES LEGAL ADVICE. A WHOLE NEW APPROACH PTY LTD IS NOT A LAW FIRM AND WE ARE NOT SOLICITORS.
Frequently Asked Questions
Reasons for forced resignation
An employee may be forced to resign due to pressure or conduct from the employer that signals the breakdown of employment relationship. For example, in Hobbs v Achilleus Taxation Pty Ltd ATF the Achilleus Taxation Trust; Achilleus Accounting Pty Ltd ATF The Achilleus Accounting Trust [2012] FWA 2907, forced resignation was found when the employer failed to pay wages for 4 months. Other reasons when one is forced to resign may include unacceptable conduct engaged by the employer such as demotion or unfair treatment such as discrimination, bullying or sexual harassment.
Explaining a forced resignation
Forced resignation or constructive dismissal occurs when an employee has not real choice but to resign due to the conduct or course of conduct engaged by the employer. As the employee has no real choice, the resignation would be deemed involuntary and classified instead as dismissal at the employer’s initiative.
Doctrine for forced resignation
To prove constructive dismissal, the employee needs to prove that the employer forced the resignation with the intention to bring their employment relationship to an end or intend the termination of employment as a probable result. The distinction between forced resignation and employee resigning at their own imitative is drawn narrowly and rigorously observed.