29 October 2022

Have you been forced to resign - Constructive Dismissal?

A forced resignation occurs when an employer threatens to terminate your employment if you refuse to resign.
Australia Employment and HR
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Your resignation is forced when, as an employee, you are made to feel that you have no other choice but to resign. These types of forced resignations are referred to as 'constructive dismissal'.

To establish that a constructive dismissal has occurred, you must prove that your resignation was forced, or that you had no choice but to resign due to unacceptable or unlawful behaviour by your employer.

Both employees and employers should understand this aspect of employment law and what constitutes constructive dismissal to ensure they abide by their rights and obligations. We act for both employees and employers and this article is written from the employee perspective.

This area of employment law is niche and you should get advice from employment lawyers about your matter.

Forced Resignation

The onus is on you as the employee to prove you did not resign voluntarily, and that your employer forced your resignation.

A forced resignation occurs when an employer has threatened to terminate your employment if you refuse to resign.

It can also be argued that under these circumstances that even if you had chosen to resign, the resignation was not voluntary because your employers' intent was to bring your employment relationship to an end.

Thus, in this situation, had the employer not given the ultimatum you would not have resigned.

In some instances employers may offer you to resign to spare you embarrassment or safeguard your employment history with a black mark of termination. This is irrelevant and still considered a constructive dismissal.

On the other hand, as an employee, you must be mindful that a resignation would not be viewed as forced resignation if you opt to resign before your termination. This is colloquially known as to "jump before you are pushed".

Special Circumstances - Constructive Dismissal

A special circumstance to this in constructive dismissal cases are when you, the employee, have resigned in the heat of the moment or you have resigned under extreme pressure.

If you treat the resignation in the heat of the moment as a real and voluntary resignation, you may still be found to have been constructively dismissed if the employer did not give you a reasonable period of time to reflect on whether you actually had a real intention to resign.

You also may be found to have been constructively dismissed if, after you have taken back your resignation in the heat of the moment your employer refuses to take you back.

When You Have No Choice But To Resign

This is when you decide you have no other choice but to resign. This would arise where you had no choice in the matter as your decision was in response to your employer's unacceptable behaviour.

Examples of unacceptable behaviour by your employer could include:

  • Your employer makes changes to your employment terms and conditions resulting in a decrease in your pay
  • Demotion
  • Ignoring or failing to stop or prevent your unlawful treatment
  • Changes to your work hours
  • Relocating your employment location (for example, workplace bullying or harassment)

Employer Risks If Constructive Dismissal is Proven

Employers are exposed to the same risks they'd normally be exposed to if they'd directly terminated your employment. This includes you being able to make an unfair dismissal claim or general protections claim against them.

There are stark differences between an unfair dismissal claims and general protections claims. You will need a lawyer to advise you whether your employment termination is an unfair dismissal or general protections claim.

Generally speaking successful general protections claims can see the employee awarded with more compensation than an unfair dismissal claim and employers need to get advice from an experienced lawyer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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