15 Feb Jumped or pushed? When is a resignation actually a dismissal?
Many employers are of the view that securing a resignation from an employee is much better than terminating their employment.
Whether you are an owner or an employee, you may have been in this predicament before. Things in the workplace are not going so well, no one is really saying or doing too much about it, so you (the employee) resign or you (the employer) ask for a resignation.
Many employers are of the view that securing a resignation from an employee is much better than terminating their employment. And this because it means that the employee will not be able to make an unfair dismissal claim against them. Right? Not always.
In fact, did you know that an employee who feels they were forced to resign due to the conduct of their employer may be able to make a claim that they were constructively dismissed including under the unfair dismissal provisions of the Fair Work Act 2009 (Cth)?
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What is constructive dismissal?
A constructive dismissal (or forced resignation) occurs when the conduct of an employer is such that an employee resigns because he or she feels that there is no alternative. This type of termination of employment is unlawful.
As the word “dismissal” suggests – the trigger for the termination of employment is actually the employers behaviour (not the employee’s resignation). That is, the employer has behaved in a way that gives the employee the right at law to treat the contract of employment as at an end. In this sense, the resignation is not voluntary but forced.
Constructive dismissals or forced resignations are frequently in response to a workplace issue. The Fair Work Commission has previously found that employees have felt forced to resign in a variety of circumstances. Including where there was unresolved workplace bullying and personality clashes.
Jumped or pushed? When is a resignation actually a dismissal? Carla from Progressive Legal is your workplace law expert!
What does the Fair Work Act say?
According to the Fair Work Act, a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer.
It is important to look at the conduct of the employer. The Fair Work Act confirms that conduct may be a positive act or an omission.
The Fair Work Act also confirms the following examples as a forced resignation:
- where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
- where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.
Key take away:
If you are an employee feeling forced to resign – of course, it is your right to do so. If you feel as though you had no other choice, you may be eligible to make an unfair dismissal claim. But the Fair Work Commission will be looking at all the facts and circumstances. The purpose is to see if the employers conduct was such that there was no other choice for you to make.
If you are a business owner or manager, keep in mind that encouraging an employee to resign is risky. The employee may later make a constrictive dismissal claim. Instead, have an open and honest conversation about the workplace issues (whether it is performance, or behaviour etc). See if you can map out a pathway forward. Ensure that any resignation offered to you by an employee is truly voluntary. If you are concerned it isn’t, ask the employee to reconsider or if there’s anything you can do to change their mind.
Contact us today if you require any assistance with preparing or reviewing your Workplace Law requirements.
(c) Progressive Legal Pty Ltd – All legal rights reserved (2020)
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Ian Aldridge is the Founder and Principal Lawyer Director at Progressive Legal. He has over 15 years experience in advising businesses in Australia and the UK. After practising in commercial litigation for 12 years in major Australian and International Law Firms, he decided to set up a NewLaw law firm in Australia and assist growing Australian businesses. Since then, he has advised over 2,500 small businesses over the past 6 years alone in relation to Intellectual Property Law, Commercial, Dispute Resolution, Workplace and Privacy Law. He has strived to build a law firm that takes a different approach to providing legal services. A truly client-focused law firm, Ian has built Progressive Legal that strives to deliver on predictable costs, excellent communication and care for his clients. As a legal pioneer, Ian has truly changed the way legal services are being provided in Australia, by building Legal Shield™, a legal subscription to obtain tailored legal documents and advice in a front-loaded retainer package, a world-first. He has a double degree in Law (Hons) and Economics (with a marketing major). He was admitted to the Supreme Court of NSW in 2005.
