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This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Introduction
Sometimes an employment situation is so problematic that a worker feels that they have no choice but to leave their job. In rare cases, this kind of situation may be treated as a dismissal (‘constructive dismissal’), which then allows the worker to seek legal remedies under unfair dismissal laws.
Note: Constructive dismissals are very context-specific and determined on a case-by-case basis. It is important to get legal advice before going ahead with a dismissal claim in the Fair Work Commission.
What is a constructive dismissal?
‘Constructive dismissal’ is sometimes referred to as a forced resignation. The Fair Work Act 2009 states that a person may be seen as dismissed if the person was forced to resign because of their employer’s conduct.[1] However, it is the worker’s responsibility to show that the employer’s conduct forced them to resign. [2]
In limited circumstances, constructive dismissals may include ‘heat of the moment’ resignations where words are said ‘in temper or in the heat of the moment or under extreme pressure’.[3]
If you resign in the heat of the moment, and you regret that decision, you should urgently attempt to withdraw the resignation as soon as possible.
Example #1: Employer pressures worker to resign
Yuna has been working as a full-time administration officer at a university for the last three years. Two months ago, Yuna learned that she is pregnant and notified her employer. Since then, Yuna has observed that she is being treated differently by her boss and coworkers – she is being overloaded with work and unreasonable deadlines.
One afternoon in a staff meeting, Yuna’s boss singled her out for not finishing a report that she was only told about that morning. Yuna felt humiliated and was in tears after the meeting, and she took personal leave for the rest of the week.
When Yuna returned to work the following week, her boss called her into a meeting and scolded her for her ‘unacceptable behaviour’ at last week’s staff meeting. Her boss then handed her a ‘Separation Agreement’ for her to sign, and said, ‘I think you know what needs to be done’. Yuna quickly skimmed the document and asked to go home. Her boss did not allow her to leave until she signed the document, so she did.
The next morning, Yuna received an email from her boss stating that they accepted her resignation. Yuna was confused and immediately replied, ‘I never resigned. I think there’s been a misunderstanding and we need to talk’.
In the above example, it is arguable that Yuna’s employer constructively dismissed her based on the following:
Example #2: Dismissal by non-redundancy, not a resignation
Goli has been employed by Cleaning Company as a part-time cleaner for seven years. Goli’s employment contract specifies her hours as Saturdays and Sundays between 7-10am and her location of work as Gawler. For the last five years, Goli has been cleaning the local library’s offices.
Cleaning Company’s contract with the library finished, so they offered Goli a new site in Port Adelaide on Saturdays and Sundays from 5-7am. Goli told her boss that she could not accept these shifts as her commute from home would be 90 minutes longer.
Cleaning Company replied stating they understand Goli’s concerns about the commute and respect her decision to reject the role. They also requested a formal resignation letter.
Goli is confused because she was not planning on resigning.
In the above example, it is arguable that Goli was constructively dismissed because her employer has significantly changed her job, in a way that is not allowed by her employment contract. Goli could argue that she was unfairly dismissed and that the dismissal was not a genuine redundancy. It may not be a genuine redundancy because, although Goli’s previous position is no longer available, her employer did not consult with her around the change.
Example #3: Resignation not in the heat of the moment
Nikola is a full-time bar manager at a wine bar in Port Lincoln. Over the last 3 months during the busy summer season, Nikola’s relationship with her employer, Martin, has broken down as the business has been short staffed and the bar has been busy most nights. Nikola feels is feeling overworked and undervalued.
After a particularly rough shift involving a rowdy hen’s party, Martin tells Nikola he overheard a customer say that she took too long to serve them. Nikola was irritated and replied, ‘Serving people and making drinks aren’t even in my job description, and I still did it. I’m sick of doing everything and still being taken for granted. I’m done here, consider this my notice.’
Nikola went home and was hoping Martin would call to apologise for being inconsiderate. When Nikola didn’t hear from Martin the next day, she began to regret her decision. The next morning, she contacted Martin to withdraw her resignation.
In the above example, it is unlikely that Nikola was constructively dismissed because she did not withdraw her resignation until two days after the incident. If Nikola had withdrawn her resignation sooner (for example, the same day as resigning in the heat of the moment) or said something more uncertain like, ‘I’m done here, consider this my notice unless I feel differently tomorrow’, then she is in a better position not argue that her resignation should not have been accepted.
Contact the Working Women’s Centre SA on 08 8410 6499 to organise a legal advice appointment with one of our lawyers.
[1] Fair Work Act 2009 (Cth) s 386(1)(b).
[2] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].
[3] Ngo v Link Printing Pty Ltd (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12] citing Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183, 191 (Wood J).
