Section 386(1) of Fair Work Act defines “dismissed” to mean when:
a. A person’s employment with his or her employer has been terminated on the employer’s initiative; or
b. The person has resigned from his or her employment, but was forced to do so because of the conduct, or a course of conduct, engaged in by his or her employer.
It is (b) that is a constructive dismissal.
But it presents a much higher bar for an ex-employee to jump over than most realise.
A forced resignation is when an employee has no real or effective choice but to resign.
It would not ordinarily be enough, for example, for an employee to resign merely because the employer has called upon them to show cause why they should not be dismissed for proven misconduct.
And the onus is upon the Applicant to prove that they did not resign voluntarily and that the employer’s conduct forced their resignation.
An objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.
One of my ex-employees resigned, but is now claiming they were constructively dismissed in an unfair dismissal application to the Fair Work Commission. What is that?
