Forced Resignation

Forced Resignation

Resigning in style: 13 hilarious ways people have quit

I'm-out-of-here-i-quit
Its my last day, its 5o’clock, I quit, I’m out of here.

Resigning in style: 13 hilarious ways people have quit

Resigning, for most people, is a simple and mundane process. Typically, it involves writing a polite letter of resignation, and calmly handing it to your employer. Some people, however, choose to resign in more creative ways. In this article, we’ll show you some of the funnier resignations we’ve seen. Resigning in style: 13 hilarious ways people have quit is worth a read. Perhaps lighten your day or give you ideas

Of course, there’s nothing funny about being out of work. There’s nothing funny if you have been forced to reign, going without income. Especially if you’ve had to resign because of a terrible boss or poor work conditions. But if you’ve been in that situation before, you may sympathize with some of these uniquely funny ways people have chosen to resign and stick it to their boss.

Flight attendant resigns over airline PA, then slides off plane 

When your resignation ends up having its own Wikipedia page, you know it was memorable.

In 2010, JetBlue flight attendant Steve Slater had just touched down at New York’s John F. Kennedy Airport. Despite being told to stay seated, a cranky passenger decided to grab his bag from the overhead storage. And in so doing, he accidently hit Mr Slater in the head.

This was the last straw for the long-serving JetBlue flight attendant. Mr Slater, a self-confessed ‘bag Nazi,’ grabbed the plane’s public address system. He then launched into a profanity-laden tirade that shocked passengers, concluding by tending his resignation.

“I’ve been in this business 20 years. And that’s it, I’m done,” said Mr Slater.

Resigned-went-out-in-style-and-arrested

Mr Slater then grabbed his bags and two cans of beer from the galley, before cranking the lever for the aircraft’s inflatable emergency escape chute. He hurled his bags onto the chute, then slid down to the tarmac. Once on terra firma, Mr Slater ripped off his tie, threw it on the tarmac, and walked away.

Later that day, he was arrested by police.

A heartfelt resignation card goes viral

Whether it’s to wish happy birthday or a merry Christmas, we all love to send cards to those we adore. One employee, however, decided to send a very special resignation card to their boss.

In 2019, a colleague of the employee shared their card on social media, and it quickly went viral. “One of our team members handed in their notice like this,” the colleague said on Twitter. “We all just stood and laughed when it was presented to our manager.”

Resigning-in style-13-hilarious-ways- people-have-quit-Resignation-letter

Homeware employee announces resignation on a price tag

When your boss isn’t a nice person, sometimes they have to pay a price. And that’s exactly what happened to a manager of US homeware chain Bed, Bath & Beyond, who received a disgruntled employee’s resignation on the price tag of a $119 NuWave Pro oven.

“This is for fat f***s, my boss is a p****, I’M QUITTING TODAY,” read the message on the tag.

[Image 3]

resignation-on-the-price-tag

The price tag was apparently spotted by a customer who was browsing the store, and later posted on Reddit.

When your resignation letter only includes the words “I quit”

To resign from a job, it’s a legal requirement to notify your employer in writing. This typically involves writing a resignation letter that includes a few sentences explaining the reasons for doing so, and perhaps expressing your best wishes to your boss.

One employee, however, decided to send a letter that included the absolute bare minimum. The employee posted the below letter to Reddit, explaining that their boss had withheld their last pay check, and would only hand it over if they issued their resignation in writing.

So, they did.

Resigning-in-style:-13-hilarious-ways- people-have-quit-resignation-is-brief

Fast food staff resign on masse due to “sweatshop conditions”

Sometimes, when your working conditions resemble a “borderline sweatshop,” as was the case for this crew of US fast food chain Chipotle, it calls for a mass walkout.

Fed up with their employer’s lust for profits above all else, the crew decided to quit all at once. They kindly notified customers of the mass resignation with a letter stuck to the store’s entrance. I’m sure Chipotle’s head office received a few calls on the back of this one.

fast-food-staff-resign

It’s technically a formal resignation if you scrawl it on a white board

We’ve already seen a variety of creative ways to write your formal letter of resignation. But when your boss doesn’t ever come into work, it means you have to be practical and write it on the only surface they’re guaranteed to see.

That’s what this American employee did due to never being able to catch his manager at work. The only way the employee could herald the news of his resignation was by picking up a whiteboard marker and scrawling down his notice on a whiteboard.

white-board-resignation

Penning a heartfelt breakup letter to McDonalds

Sometimes when people have been long-serving employees, they get a bit sentimental when writing their resignation letter. McDonalds crew member Michael Taylor, while only employed by the Golden Arches for 10 months, took workplace sentimentality to a new level when he resigned.

In 2014, Mr Taylor penned a heartfelt breakup letter to McDonalds, in which he assured his employer that “it’s not you, it’s me.” As much as he enjoyed serving burgers and fries, Mr Taylor said that he and McDonalds “just need our time apart,” but ensured the fast-food chain that “we can still be friends.”    

McDonalds-resignation

Sometimes it’s good to be clear and concise when you resign

This one doesn’t really need any explanation.

public-resignation

A resignation letter that will self-destruct in 5…4…3…2…1…

If you’re so fed up with your boss telling you what to do all the time, sometimes you have to do the exact opposite. This employee was told by his manager to take his job seriously. So, he decided to hand in his resignation in the most sober and professional way possible.

Rude-resignation

A designer leaves a very special desktop alert for their boss

Restarting your computer isn’t going to get this employee to feel differently. He decided to alert his boss that he was resigning in a way that would get anyone’s attention. He even kindly provided a few options of how to deal with it. We can only assume the ‘renegotiate’ link was broken.

Resigning-in-style-13-hilarious-ways- people-have-quit

Sometimes you just have to let it all out

When you’ve gone out of your way to do favors for your boss, the least you can expect is some gratitude. This employee seemingly didn’t receive any for the many favors she details in her resignation letter, which couldn’t be dripping with more sarcasm.

sad-resignation

This resignation letter takes the cake

Most people spend just a few minutes typing and then emailing their resignation letter to their boss. For former UK immigration officer Chris Holms however, handing in his notice involved spending hours in the kitchen baking a cake.

In 2013, Mr Holmes, who worked at London’s Stansted Airport for seven years, delivered his resignation letter to his boss in cake form. The 31-year-old said that he had been planning his resignation cake for six months, and when he was finally ready to call it quits, handed it to his manager.

“I handed in the cake in person to the duty manager, said Mr Holmes. I think he was pleasantly surprised.”

resignation-on-a-cake

“The lettering was a bit tricky because there were so many words and was quite fiddly,” continued Mr Holmes. “’I thought it was a good-natured resignation and hopefully left a nice taste in their mouths.”

And Mr Holmes indeed went on to establish his own successful cake business – Mr Cake – which still operates today.

Developer turns his resignation into a Super Mario game

This is another cordial resignation. In 2009, Australian game developer Jarrad Woods (AKA Farbs) decided to hand in his six weeks’ notice by designing a new level of the classic Super Mario Brothers video game.

Mr Woods departed 2K Australia in Canberra by creating his own version of the game, in which he delivered a resignation message: “Thank you 2K Australia! You gave me a paycheck, an incredible project and a world-class team to learn from. But my princess is in another castle.”

computer-game resignation

Mr Woods, who had spent 20 years as a game developer, proudly spoke of his gamified resignation.

“Six weeks hence indie gaming love will gush from this site,” he said on his blog. “I stayed up all night working on my resignation though, so I’ll have to take a nap beforehand.”

You can play the resignation message here.

Have you experienced a forced resignation or unfair dismissal?

I hope you enjoyed Resigning in style: 13 hilarious ways people have quit If you’ve been forced to resign by your employer. My personal view is to resign or quit in a professional manner. Have some class about yourself, your the better person, show it. Don’t let that employer take your self respect away from you. Don’t stoop to their level. Also in future you don’t know where you end up in life and you might need then as a reference. Or at the very least not to make disparaging comments about you. “Don’t burn you bridges” is the saying.

A Whole New Approach is here to help. For more than 20 years, our team of employment experts have helped thousands of employees fight for their rights. We are proud of our staff and the outcomes they get for our clients. Call 1800 333 666 seven days per week for a confidential, no-obligation chat. All Fair work Australia matters, workers rights, toxic workplace, harassment, issues call us. Do not resign until you get advice.

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Constructive dismissal case sees livid employer withhold wages

Constructive-dismissal-case-sees-livid-employer-withhold-wages
Constructive dismissals can get confusing and heated.

Constructive dismissal case sees livid employer withhold wages

A constructive dismissal, in short, is when an employee was forced to resign. While that may seem simple to understand, constructive dismissal cases are often quite complex. Especially when the forced resignation is the result of a misunderstanding between the employer and employee. “Constructive dismissal case sees livid employer withhold wages” scenario is quite common when the relationship breaks down. Both the employee and the employer are quite aggrieved, things can get emotional.

Many employees resign in the “spur of the moment”, then change their mind. Can you take a resignation back?, does the employer have to take it back? Employees say “I feel like resigning”, however don’t and the employer seizes on this to get the employee out of the business. Employees walk out, go home, and the employer takes this as a resignation. These are just a few, of the varied scenarios we get calls from all the time.

In the constructive dismissal case we’ll share today, you’ll see how a fiery breakdown of relations between an employer and employee led to a confusing situation. That is, where the employer believed the employee resigned. And the employee thought they were dismissed.

What constitutes a constructive dismissal?

Otherwise known as a forced resignation, a constructive dismissal is where an employee’s resignation wasn’t their choice. Rather, it was forced by their employer. Whose actions leading up to the resignation were intended to bring the employment relationship to an end. For instance, leading up to the resignation, the employer may have deliberately withheld shifts or pay from the employee. Or they intentionally made the employee’s job harder than it should be, to force them to quit.

In other words, the resignation isn’t voluntary. And to successfully have their resignation deemed a constructive dismissal by the Fair Work Commission. – and thereby receive unfair dismissal compensation. The employee must prove that their resignation wasn’t voluntary. In the following case, we’ll see how a bitter disagreement led an employer to believe it had dismissed its employee. While the latter believed she were forced to resign.

Constructive-dismissal-case-sees-livid- employer-withhold-wages
Ordered out of the office

Worker has her constructive dismissal case heard by Fair Work Australia (FWC)

Patricia Bender, a mail sorter and delivery driver, was working for Raplow Pty Ltd in Gympie, Queensland. Relations with her manager, Robert Jones, were cordial for the first two years of her employment. However, in August 2010, things started to deteriorate when issues of trust arose. According to Ms Bender, some of the things Mr Jones had said to her “were not necessarily true and had been embellished to make him look better.”

The relationship deteriorated to the point that Ms Bender rang Mr Jones to express her intention to resign. Giving her four weeks’ notice. Mr Jones, however, requested Ms Bender to stay, and she agreed to do so. But despite coming to this détente, their relationship continued to decline.

Soon, the duo engaged in a dispute over pay, in particular how many hours Ms Bender should have been compensated for. Ms Bender also complained about the safety of the mail delivery vehicle. Mr Jones disagreed that the vehicle was unsafe, and strongly rejected his employee’s allegation that he had been “ripping [her] off.”

The employer writes an ambiguous letter to the employee

With the intention of putting the matter of the disputed pay to rest, Mr Jones decided to write a rambling, resentful letter to Ms Bender. In it, he accused her of stealing. He also addressed what he believed was the appropriate payment owed and requested an apology. At the end of the letter, he made ambiguous statements regarding an “end” to Ms Bender’s employment. These statements, as you will see, were key to this constructive dismissal case.

The letter is reproduced verbatim (including spelling mistakes) below, with the ambiguous statement in bold.

“Pat

Please find enclosed cheque for wages earned for November of $1500-00. Obviously this is not the correct amount, however due to your typing error memory loss or what ever ten the days when you worked three or less hours, having said that you always said you where as quick as me.

Stealing is a sackable offence your invoice would suggest you arte trying to steal from me.

You ACCUSED me of ripping you off.

The two days you where sick , two junk mails 9 hours / the other 8/!/4 hours where is the rip off, if you have a problem huge day e,c.t. you knew I would have paid you.

YOUR HONESTY putting in for hours not worked how stupid do you think I am I know you have not worked the hours put infor,

WHEN YOU COME UP WITH THE CORRECT AMOUNT YOU WILL BE PAID ACCORDONLY.

However your appoligise for your accusations of me trying to rip you off over your wages need to be forthcoming…

wIf you can not admit you are wrong about out me then it is obvious you do not want to work for me any more, fine end of storey good bye .

Finish Friday all holiday pay will be paid due to you as at the 19th of December sorry it had to end this way, but it was your choice , please return current vehicle to 651 Wilson pocket road Gympie. (sic)”

office-violence-has-place
Office violence has no place, it only makes the situation worse. Everybody take a breather

Unflattering personal views

Ms Bender read the letter in Mr Jones’ presence, and the duo had an exchange about the method of calculating her wages. They also shared their unflattering personal views of one another. This included a heated exchange in which Mr Jones told Ms Bender, “I’m sick of your sh*t,” to which she replied, “Feelings mutual there.”

It wasn’t until a day later, on 3 December 2010, that the duo discussed Ms Bender’s employment status. She asked her manager which Friday she was meant to conclude her employment. Mr Jones was alleged to have said that she could finish working on “whatever Friday you want.”

Both parties provide different versions of events

Even more confusion is in store for this constructive dismissal case. Because following their conversation about Ms Bender’s final Friday at work, the duo provided differing accounts of what happened next.

Ms Bender told the Fair Work Commission that she wasn’t willing to drive the delivery vehicle to complete her duties. Citing that it wasn’t roadworthy. Ms Bender claimed that after telling Mr Jones this, he said that he didn’t require her if she couldn’t complete her duties. And it’s because of this statement that Ms Bender left work early that day. She told Mr Jones that she would return to collect her pay on 20 December 2010, in accordance with her manager’s letter.

Mr Jones, however, told the FWC that he posed the question to Ms Bender that if she so wished, she could resign. When Ms Bender asked when she could resign. Mr Jones said “right now.” When Ms Bender enquired when she would be paid, Mr Jones said “20 December 2010.” Ms Bender then said that she would see Mr Jones on that date.

The employee contacts the Fair Work Ombudsman

After leaving work, Ms Bender got in touch with the Fair Work Ombudsman. It informed her that as she didn’t receive an immediate dismissal, and hadn’t had all her wages paid out at that time, she was obligated to remain at work to see out her notice period. That period included up till and including 17 December 2010.

After turning up to work on the next working day, Monday, 6 December 2010, Mr Jones asked Ms Bender why she was there. He said that he believed she had resigned on the previous Friday. Ms Bender then asserted that she hadn’t been dismissed by Mr Jones, and the duo argued about this for some time.

Ms Bender presented to work for the next ten days, during which time Mr Jones didn’t assign her any duties. He simply affirmed his belief that she had resigned, and that he had paid what he perceived as her outstanding pay. Ms Bender refused to agree that she had resigned and disputed the amount she was paid.

lost-his-job-being-forced-to-resign
Lost his job, by being forced to resign

Fair Work Commission affirms the employee’s claim of constructive dismissal

After weighing up the matters of the case, the Commission ruled that Mr Jones was incorrect to presume that Ms Bender had resigned. It found that Mr Jones’ letter to Ms Bender “might reasonably suggest that the Respondent indicated that the Applicant could resign if she wished to.”

However, circumstances were complicated when Ms Bender, who left work early on Friday and didn’t return that day, turned up to work the following Monday. And she continued to turn up each day until her notice period ended.

The Commission therefore concluded that Ms Bender had not resigned. This meant that she didn’t have the intention to repudiate her contract of employment. The Commission ruled that Ms Bender had been dismissed in a manner that was harsh, unjust or unreasonable. In effect, it was a forced, or constructive dismissal.

Due to her hostile relations with Mr Jones, reinstating Ms Bender in her position was deemed inappropriate. She was therefore awarded monetary compensation.

When there’s confusion, an employer should provide clarity

This case of constructive dismissal highlights one of the critical imperatives of an employer when it has a heated, spur of the moment discussion with an employee regarding the termination of their employment. Often, when emotions are running hot, it’s very easy for either party to misinterpret the words of the other. Therefore, it’s incumbent on the employer to provide clarity. To carefully consider the context in which threats of resignation or termination were made.

An employer may even be obligated to wait for a reasonable period of time before they treat a ‘resignation’ as legitimate. Because if an employee later turns up to see out their notice period, as did Ms Bender, they haven’t legally resigned. Namely, because they didn’t demonstrate an intention to not be bound by their employment contract.

Conclusion to Constructive dismissal case sees livid employer withhold wages

I hope the brief article “Constructive dismissal case sees livid employer withhold wages” was of some benefit or interest to you. It can be difficult times when you have a falling out with your employer. We are A Whole New Approach P/L, leading workplace representatives. Anything to do with the Fair work Australia regime, workers rights, employment rights. Advice is confidential, prompt and free. Dismissals, workplace investigations, casual employees, serious misconduct. are an example of the work we can undertake for you.

Call us immediately 1800 333 666

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Constructively Dismissed But Not Unfair Dismissal

constructively-dismissed
Resigning on the spot

Constructively Dismissed But Not Unfair Dismissal

In one of the first constructive dismissal cases for 2022, an employee was found to be constructively dismissed or forced to resign. However the Fair Work Commission still deemed the dismissal fair. It’s constantly assumed by employees if you can prove your forced to resign. (constructively dismissed).Then its automatically assumed that its unfair. This article “Constructively Dismissed But Not Unfair Dismissal” will run through the details and the legal test you must meet. My view is you never ever resign until you get advice. Going without income is not easy.

Details of the unfair dismissal claim

In Costigan v KOR Equipment Solutions Pty Ltd. Mr Michael Costigan made an application alleged he was unfairly dismissed after he was forced to resign from his employment with KOR. KOR is an import and distribution business. The industrial equipment they import are truck mounted vacuum and hydro-excavation units which they distribute throughout Australia and New Zealand. Mr Costigan commenced employment by KOR on 3 August 2020. When his employment with KOR ceased on 31 August 2021, he was working as a Business Analyst.

On 22 July 2021, Mr Roberts and Mr Costigan had a meeting (the July meeting). Mr Roberts gave Mr Costigan a formal warning detailing what he says were errors in Mr Costigan’s work. Costigan says that this constituted his first formal warning. Mr Robert says that this was the second formal warning.

Constructively-Dismissed-But-Not-Unfair Dismissal
Did you have choice or not?

Disciplinary meeting

On 31 August 2021, Mr Robert met with Mr Costigan in a disciplinary meeting to discuss Mr Costigan’s alleged performance issues. (the resignation meeting). Mr Steven Cusworth, the Managing Engineer of KOR, also attended this meeting. At the meeting, Mr Roberts said that Mr Costigan had continued to make errors in his work in August. He then proceeded to detail those errors. Mr Costigan did not agree with the manner in which the issues raised by Mr Roberts are characterized.

Choose to resign, rather than be dismissed

At the resignation meeting, Mr Roberts told Mr Costigan that the day of the meeting would be his last day working for KOR. Told him that he could choose to resign rather than be dismissed. Following the meeting, Mr Costigan sent an email to Mr Roberts stating that. “At this point in time I would like to exercise my right to resign effective today.” Is this choice or forced, is the important question.

Forced to resign because of the conduct or course of conduct

Under the Fair Work Act 2009 (Cth) (the FW ACT), the term dismissed is defined where a person’s employment has been terminated at the employer’s initiative or a person was forced to resign because of the conduct or course of conduct engaged in by the employer. A forced resignation, also referred to as a constructive dismissal, is when an employee has no real choice but to resign. Thus, the onus is on the employee to prove that their resignation was not voluntary. This issue may form the basis of a jurisdictional issue when dealing with claims such as Unfair Dismissal applications in the Fair Work Commission.

Given that Mr Costigan resigned, Commissioner Mirabella of the Fair Work Commission conducted a hearing in which she had to determine whether Mr Costigan resigned voluntarily. Or whether he was forced to do so and thus constructively dismissed.

Under the Fair Work Act 2009 (Cth) (the FW ACT). The term dismissed is defined where a person’s employment has been terminated at the employer’s initiative. Or a person was forced to resign because of the conduct or course of conduct engaged in by the employer left the employee with no real choice but to resign.

Despite an employee feeling they have no other choice but to resign, constructive dismissal claims are extremely difficult to win. Whilst it is your application, the onus is on you to prove the resignation was forced, in order to satisfy the test of constructive dismissal, as it was you who ended the employment relationship. 

Constructively-Dismissed-But-Not- Unfair Dismissal
Some situations get out of control. If your subjected to this behaviour, your forced to resign.

Employers intent to bring the relationship to an end

In order to satisfy the legal test for a forced resignation or constructive dismissal claim, the employee must demonstrate that the employer has taken action with the intent to bring the relationship to an end. Or that has that probable result. In the words of the Full Bench, of the Fair Work Commission, in O’Meara v Stanley Works Pty Ltd. Adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli, the test is whether the employer engaged in conduct with the intention of bringing the employment to an end. Whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. 

Similarly, the Australian case of Mohazb v Dick Smith Electronics Pty Ltd (No 2). States that “an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.

That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”. For example: An employee resigned after having been paid under half of what he was owed in wages over a period of 4 months. This was held to be a forced resignation due to the conduct of the employer and thus constituted a dismissal by the employer.

Each unfair dismissal matter turns on its own facts.

In Costigan v KOR Equipment Solutions Pty Ltd. Commissioner Mirabella acknowledged that not every resignation following notification of an impending termination will constitute a dismissal. Each matter turns on its own facts. In this case, Commissioner Mirabella found that there was time pressure imposed on Mr Costigan. The actions of Mr Roberts were instrumental in Mr Costigan’s resignation and the resignation was Mr Roberts’ idea.

Commissioner Mirabella found that Mr Robert’s presented the notion of resigning as an alternative to termination. Together with a positive reference and an additional bonus. KOR’s intention was that Mr Costigan. Whether through termination or resignation, would cease to be employed by them within less than two hours. Commissioner Mirabella found that there was no genuine attempt to give Mr Costigan time to contemplate the choice of resignation. That it is difficult to conclude that Mr Costigan was exercising his individual judgement when he accepted the offer to resign.

He had no effective choice regarding the tenure of his employment at KOR. In respect of the constructive dismissal, Commissioner Mirabella held that the only choice Mr Costigan had was the manner in which he would depart.

Being-scolded
Senior manager scolding his employee. Can this lead to a successful constructive dismissal?

Is the constructive dismissal harsh, unjust or unreasonable?

Aforementioned, if an employee is forced to resign and can successfully prove this is a direct result of the employer’s conduct, this will constitute a dismissal. If satisfied that the employee has been dismissed, the employee can make an unfair dismissal claim in the FWC. In order to qualify for an unfair dismissal, the employee must have completed at least the minimum employment period with the employer.

The minimum employment period is 6 months’ continuous service at a particular time, for non-small business employers. If the employer is a small business. Which employs less than 15 employees at the relevant time, the employee must have completed at least 12 months of continuous service at the particular time.

Despite the employees’ eligibility to make an unfair dismissal claim after establishing their forced resignation constitutes dismissal under the FW Act. The employee would need to establish that the dismissal was harsh, unjust or unreasonable. In Grundy v Brister and Co. The Fair Work Commission found that the employer had forced the employee to resign and that the employee was therefore constructively dismissed after a resignation letter was prepared by the employer and the employee was required to sign it.

However, when assessing whether this constructive dismissal was unfair, the Fair Work Commission held that the dismissal was not harsh, unjust or unreasonable. As the employees engaged in abusive behaviour and had a threatening attitude towards fellow employees. Although the Fair Work Commission noted procedural failings. Such as preparing the resignation letter for the employee, the Commission held this did not outweigh the seriousness of the employee’s misconduct.

Valid reason for the dismissal

When assessing whether a constructive dismissal is harsh, unjust or unreasonable, the Fair Work Commission will look at whether there was a valid reason for the dismissal. Which relates to the employees’ capacity or conduct. Whether the employee was notified of this reason. Was the employee was given any opportunity to respond to that reason. Whether there was any unreasonable refusal by the employer to allow the presence of a support person for any discussion relating to the dismissal.

Was the employee was warned about unsatisfactory performance prior to the dismissal if this was the reason for the dismissal. The degree to which the size of the employer’s enterprise would likely impact on the procedures followed in making the dismissal. The degree to which the absence of dedicated human resource manager specialists. Or expertise in the employer’s enterprise would be likely to impact on the procedures followed in the dismissal. Finally any other matters the Commission considers relevant.

Constructively Dismissed But Not Unfair Dismissal
Stress of business woman packing brown cardboard box her belonging after resign and signing cancellation contract letter, Change of job unemployment or resignation?

Could not perform the job to the required standard

In Costigan v KOR Equipment Solutions Pty Ltd. Commissioner Mirabella found that there was a valid reason for Mr Costigan’s dismissal. When taking into account several matters in which it was alleged he had failed to perform at the required standard. Thus, even though Mr Costigan was constructively dismissed, there was still a valid reason for his dismissal.

Ultimately, Commissioner Mirabella found that KOR dismissed Mr Costigan because he could not perform his job to the required standard. Further could not be relied upon to deliver accurate work. Mr Costigan was provided with feedback over several months, opportunities for improvement and two warnings. Mr Costigan was dismissed because he could not perform the job that was required of him and his dismissal was not unfair.

Conclusion: Constructively Dismissed But Not Unfair Dismissal

I hope this article was helpful to you. This area can get even more complex when you discussed resigning, but didn’t resign. You mentioned you might leave in the future. Took a week off, and the employer has assumed to have left. Choose your words carefully, particularly if the relationship with the employer is deteriorating. Your always welcome to get advice from us at, AWNA, its free and to the point. All abandonment of employment issues, Fair work Australia, worker’s rights, employment rights.

Al states, including, Victoria, NSW, QLD

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Are Constructive Dismissal claims too hard to win?

Are Constructive Dismissal claims too hard to win?
Employee out the door with his processions. Resignations sometimes are not clear. spur of the moment decision. All you said was I felt like resigning, but i didn’t. There was no choice. The list is extensive and complicated.

Are constructive dismissal claims too hard to win?

Lets answer the question. My view is you never resign until you get professional advice. That’s easy to state. On the spur of the moment. Forced into a room and the employer demands you resign. Your told if you don’t resign you will be dismissed and never work again. You will not get your entitlements unless you resign. The list is endless. Basically its about choice. Lets try and answer the question to Are Constructive Dismissal claims too hard to win? below. Please read on.

What’s the Fair work Act say?

Under the Fair Work Act 2009 (Cth) (the FW ACT). The term dismissed is defined where a person’s employment has been terminated at the employer’s initiative. Alternatively a person was forced to resign because of the conduct or course of conduct engaged in by the employer. A forced resignation, also referred to as a constructive dismissal. Is when an employee has no real choice but to resign and thus, the onus is on the employee to prove that their resignation was not voluntary.

This issue may form the basis of a jurisdictional issue when dealing with claims such as Unfair Dismissal applications in the Fair Work Commission. Are Constructive Dismissal claims too hard to win? We will explore the topic today

Test for Constructive Dismissal

In establishing whether an employee has been forced to resign. The employer must have taken action with the intent to bring the relationship to an end. Or that has that probable result. In the words of the full bench in OMeara v Stanley Works Pty Ltd. Adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli. The test is whether the employer engaged in conduct with the intention of bringing the employment to an end. Or whether termination of the employment was the probable result of the employer’s conduct. Such that the employee had no effective or real choice but to resign.

Similarly, the Australian case of Mohazb v Dick Smith Electronics Pty Ltd (No 2). States that “an important feature is that the act of the employer results directly or consequentially in the termination of the employment. That the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”.

For example, an employee resigned after having been paid under half of what he was owed in wages over a period of 4 months. This was held to be a forced resignation. This is due to the conduct of the employer and thus constituted a dismissal by the employer.

Resignation is given in the heat of the moment or under extreme pressure

If a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise. In these circumstances, employers may be required to allow a reasonable amount of time to pass before they treat the employees’ ‘resignation’ as an actual resignation. For instance, an employee and their employer have a heated and angry discussion in which the employer believes the employee resigned. However the employee believes they were dismissed.

The employee continues to present for work as they were under the belief that they had to work out the notice period for their dismissal. In these circumstances, the employee is found not to have resigned as they did not demonstrate an intention to not be bound by their contract of employment.

Are Constructive Dismissal claims too hard to win?

The simple is no they are not, it is legal technical hurdle / mess, its voluntary versus forced. That what this boils down to, please read on

Are Constructive Dismissal claims too hard to win?
Waiting to tell Human resources that your resigning

Is the constructive dismissal harsh, unjust or unreasonable?

Aforementioned, if an employee is forced to resign and can successfully prove this is a direct result of the employer’s conduct. This will constitute a dismissal. If satisfied that the employee has been dismissed, the employee can make an unfair dismissal claim in the FWC. In order to qualify for an unfair dismissal, the employee must have completed at least the minimum employment period with the employer.

The minimum employment period is 6 months’ continuous service at a particular time, for non-small business employers. If the employer is a small business, which employs less than 15 employees at the relevant time, the employee must have completed at least 12 months of continuous service at the particular time.

Fair Work Commission found that the employer had forced the employee to resign

Despite the employees’ eligibility to make an unfair dismissal claim after establishing their forced resignation constitutes dismissal under the FW Act. The employee would need to establish that the dismissal was harsh, unjust or unreasonable. In Grundy v Brister and Co. The FWC found that the employer had forced the employee to resign and that the employee was therefore constructively dismissed after a resignation letter was prepared by the employer and the employee was required to sign it.

However, when assessing whether this constructive dismissal was unfair, the Fair Work Commission held that the dismissal was not harsh, unjust or unreasonable. As the employees engaged in abusive behaviour and had a threatening attitude towards fellow employees. Although the Fair Work Commission noted procedural failings. Such as preparing the resignation letter for the employee, the Commission held this did not outweigh the seriousness of the employee’s misconduct.

general protections, unfair dismissal
Many employees when forced out of their job, get quite aggrieved, leave with your self respect, your head held high. You don’t want the employer complaining about your behaviour when your claim gets to the Fair work Commission, think of the bigger picture. you want justice and compensation

Assessing whether a constructive dismissal is harsh, unjust or unreasonable

When assessing whether a constructive dismissal is harsh, unjust or unreasonable. The Fair Work Commission will look at whether there was a valid reason for the dismissal which relates to the employees’ capacity or conduct. Whether the employee was notified of this reason. The employee was given any opportunity to respond to that reason. Whether there was any unreasonable refusal by the employer to allow the presence of a support person for any discussion relating to the dismissal.

Whether the employee was warned about unsatisfactory performance prior to the dismissal. If this was the reason for the dismissal. The degree to which the size of the employer’s enterprise would likely impact on the procedures followed in making the dismissal. The absence of dedicated human resource manager specialists or expertise in the employer’s enterprise would be likely to impact on the procedures followed in the dismissal. Any other matters the Commission considers relevant.

Are Constructive Dismissal claims too hard to win?
Employee considering resigning, what should i do?

Are Constructive dismissal claims too hard to win?

The Victorian employee lodged a claim of unfair dismissal. Claiming his employer forced him to work from home despite him being ill-equipped to work from home. The employee argued that he had been directed to work from home without being provided with ‘the appropriate equipment necessary to carry out his work from home, namely a desk’.

Furthermore, the employee contended that the company’s conduct, namely its refusal to provide or pay for a desk. Or to grant him leave or allow him to work from the office. Its failure to consider his personal circumstances, left him no reasonable choice but to resign, and that the company ought to have realized this.

Deputy President Colman, of the Fair Work Commission (FWC), rejected the employees’ contention, labelling the resignation as a “position of principle” because the employee felt that he should not be required to spend his own money to buy a desk on which to work from home. Deputy President Colman, held that the employee could have purchased a desk cheaply and since lodging his unfair dismissal claim. He had purchased a table and so on any reasonable view, the prospect of having to pay a small sum to buy a desk was not a matter that forced the employee to resign.

been sacked or dismissed
All workplace departures are terrible whether your dismissed or forced to resignation

Employee was not left with no reasonable choice but to resign but instead he freely chose to do so

Deputy President Colman, of the Fair Work Commission (FWC), found that the employee was not left with no reasonable choice but to resign but instead he freely chose to do so. The employee’s letter of resignation made no reference to compulsion, because none existed and he had a number of various alternatives available to him, which the Fair Work Commission examined.

Most obviously, he could have bought a desk but he could have also sought to borrow a desk from a friend. He could have asked for a shorter period of leave or contacted WorkSafe about his safety concerns. In this regard, Deputy President Colman, found that the employee had decided instead to bring his application in the Fair Work Commission.

That was his choice

That was his choice. The employee was held not to have been forced into resigning and the application was dismissed. This case demonstrates the difficulty in succeeding in a claim of constructive dismissal. The Fair Work Commission has highlighted the importance of examining all alternative options available to an employee. This is before a firm decision is made to resign. Whilst it is your application, the onus is on you to prove the resignation was forced. In order to satisfy the test of constructive dismissal, as it was you who ended the employment relationship

I thought was safe, i would never be sacked or forced to resign
If you want to pursue a unfair dismissal claim (forced to resign) don’t write a letter / email / text thanking them, its not consistent with what you say of being forced out of your job. Some employees write these type of letter or email, because they just want to get out of there, get their entitlements, or fears for their safety. However if your pursuing a unfair dismissal claim, its not helpful. The employer says, I didn’t force them out of a job, look at the nice letter they wrote me.

Conclusion: Are Constructive Dismissal claims too hard to win?

Thank you for reading the article on “Are Constructive Dismissal claims too hard to win?” This can be difficult time for you, what do I do, do I stay or do I go, get advice. Explore your options.

We are A Whole New Approach P/L. We are not lawyers but the nations leading workplace advisors, communicators and research’s in workplace issues. Any Fair work Australia (FWC), serious misconduct, casual employees, workers rights, employment rights, give us a call. Advice is free, to the point and confidential, call 1800 333 666. We are proud of our staff and the outcomes we get for our clients.

An article on forced resignation that may be of interest to you, click here

Resignation letter do’s and don’ts click here

Constructive dismissal, but not unfairly dismissed, click here

Resign: do you have no choice?

Resign: do you want to leave? or do you have no choice?
Being pressured to resign. Try and avoid pushed into something you don’t want to do. Or you are going to regret.

Resign: do you want to leave? or do you have no choice?,

These sort of questions we are asked on a daily basis. Through this article I will attempt to bring some clarity to the situation Resigning from your place of employment in Australia is procedurally quite simple, but it can also be emotionally difficult and psychologically complex depending on the circumstances. This is because you may not be happy about the reasons you are resigning and might feel bitter or distressed by the events leading to the decision. If the circumstances and events leading to your decision made you feel like you had to leave the company. You could then be actioning what is called a ‘forced resignation’. Resign: do you want to leave or do you have no choice? Lets discuss in detail today, its an important decision, possibly life changing

When are you being forced to resign?

A forced resignation occurs when you find yourself in a position that leaves you no other choice but to resign. Essentially, you may have been forced to resign in a circumstance where you felt your employer coerced you into doing it.

You may have been forced to resign when:

  • Your employer refused to roster you on for shifts at your hospitality job. Forcing you formally resign and to find another place of employment.
  • Perhaps your employer has made the workplace environment so unsafe for you that attending work would put you personally in very real physical, psychological, or emotional danger.
  • For some reason your boss assumed that you had resigned and acted as if you no longer worked there. Even though you continued to come to work.
  • Your employer stopped paying your wages and refused to do so in future.

It is your responsibility to prove that you didn’t resign of your own free will. Rather that it was as a result of the action or inaction of your employer. Generally, if you clearly state that you are resigning, you have indeed resigned of your own free will. However, if you made the decision when you were under a lot of emotional and psychological pressure. You may not actually have resigned, even if you made your intention clear.

Heat of the moment resignation

For example, a heat of the moment resignation could happen when you are extremely upset with the actions of your employer. In turn tell them that you are resigning in retaliation. Then, after thinking about the situation, you might go back to your employer the next day and say that you do not actually intend on resigning. In this circumstance, your employer would most likely need to accept that you have not actually resigned. Because you only intended to resign in the heat of the moment. This is not a straight forward argument. There is no automatic obligation on the employer to allow you to withdraw the resignation.

When are you NOT being forced to resign?

Essentially, if you were not coerced into resigning. You clearly didn’t actually intend to resign in the heat of the moment, it is accepted that you resigned voluntarily. This distinction is vital. Because if you did indeed actually resign, there are very few claims you can make against your employer if you’re looking for compensation. For example, you can’t make any General Protections claims or Unfair Dismissal claims against an employer when you were the one to resign of your own free will. No matter how terribly you were being treated.

You may not have been forced to resign when:

  • You resigned in response to disciplinary action, that is, you did something wrong. Your employer wanted to talk to you about possible consequences. Or perhaps you resigned at some point during the disciplinary procedure.
  • You resigned because you had been suspended from work for disciplinary reasons. You might have thought that you were as good as fired because all of your employee access had been taken away. Hadn’t heard from your employer in a while, but this usually does not mean you’ve been forced to resign.
  • Perhaps your employer wanted to change the terms of your employment. You felt you either had to accept the changes or resigned. If a decision hadn’t yet been made about any changes to your role, then you are not being forced to resign. 
  • You resigned because your employer wasn’t happy with your performance and wanted to take action to help you improve.
  • You resigned because your employer was not paying you your wages when they were supposed to.
  • Had enough of a toxic work place.
don't resign, calm down, think it over
Don’t resign in the “spur of the moment”, take a deep breath, consider your options

What can you do if you were forced to resign? What does Fair work Australia say?

If, all things considered, you believe you really did not have any choice but to resign, you may be able to apply for a claim at the Fair work Commission. In turn receive financial compensation for the actions of your employer. In an Unfair Dismissal claim, you can ask for a maximum of 26 weeks’ worth of wages as compensation. If you exercised any workplace rights that led to your forced resignation, you may be able to make a General Protections claim. This kind of claim has added benefit in that you can not only claim wages Also ‘general damages’ for the pain and suffering you experienced as a result of the forced resignation.

In deciding whether or not the amount of compensation you wish to claim should be granted, lots of factors will be taken into account, such as:

  • How long you were employed by the company,
  • How many permanent employees the company has,
  • The reason you decided to resign in the heat of the moment,
  • Any workplace bullying or harassment you may have endured,
  • Your age, or specifically how close you are to retirement age,
  • Whether or not the Company has the money to pay you out.

What if the circumstances that led you to resign still seem unfair, even if you resigned of your own free will?

Making the decision to resign, especially from a job that you enjoy and find very fulfilling, can be very psychologically distressing despite whether or not you feel you are being forced to do so. Will you be able to find a new job? What happens if no one will hire you in your preferred profession? Will your former employer give you a good reference? Or do you stay and continue to put up with a toxic work place.

In the past two years, with the pandemic raging on, these questions seem to be even more difficult to answer than ever before. It also raises questions about the circumstances in which we might call a resignation ‘forced’.

For example, say you’re a mother with two young, primary-age children and a partner who absolutely cannot work from home during the Omicron COVID-19 outbreak because they are a nurse or doctor. You work in an office that has valid requirements for staff to continue working in the office rather than from home. But all of your tasks can be completed from home. In turn you ask your employer if you can work from home, and they say no because they need you in the office to support those who cannot.

You explain that you are a mother of two young children. You cannot leave them unsupervised at home because you don’t want to risk exposing them to day-care centers while the Omicron variant runs rampant. Your boss doesn’t budge, saying that you could very reasonably find people to watch the children who would not be a big COVID-19 exposure risk for your children. Maintaining it is vital to the company that you assist in the office. Many of your co-workers have already contracted the virus and you’re experiencing a staff shortage.

Forced to make impossible decisions

You are now in a position where you could reasonably follow your employer’s directions and find someone to mind the children. This would come with added COVID-19 exposure risks for both the sitter and your family. This makes you very nervous because your partner works in a hospital and is already a big exposure risk to your family. You couldn’t bring the children into work with you either. Partly because of the COVID-19 exposure risk, but also because you know they will be loud and restless and distract your co-workers. You feel that you’re being forced to make an impossible decision; risk exposing your unvaccinated children to the virus or resigning.

Under the forced resignation parameters as they stand, if you did resign, it is unlikely that it would be found to be forced. You intended to do it, you weren’t caught in a one-off, heat of the moment stressor. Your employer wasn’t making it impossible for you to carry out your role. Yet, all things considered, it feels like you really are being forced to resign. People severely ill with the Omicron variant are crowding the hospital system and everyone seems to be acting like it’s just a matter of time before they too contract the virus. Just three months ago, no one would have sided with your employer, but that was then, and this is now.

Resigning on good terms
Nothing wrong on leaving on good terms. Don’t burn your bridges as they say

Confronting decision what to ultimately do, resign: do you want to leave?

This scenario is just one example of many that real Australians are facing today when confronted with the decision to resign. Or follow their employer’s reasonable directions. These difficult circumstances are really only now popping up because of the State and Federal Government’s “let it rip” approach to the virus. In 2021 your employer would have been more than willing to let you work from home under the lockdown laws. However 2022 is completely different. Everybody in theory is back to work soon. A lot of employees won’t want to do for a myriad of reasons, the unfair dismissals will be increasing

There is no government support for businesses anymore. Tens of thousands of people contracting the virus every day, the workforce is suffering, leaving those who are not infected to carry double their usual workload. Many businesses have had to shut altogether because their entire staff team has contracted the virus.

Conclusion to Resign: do you want to leave? or do you have no choice?

It is difficult to say who would win if an employee were to bring a forced resignation claim in the circumstances described above. Employment law doesn’t have much to say on what counts as a ‘reasonable’ direction during this current Omicron outbreak. It probably never will. All anyone can ask us to do is balance what’s best for us as individuals with what’s best for our community. Whether that means resigning or not.

I hope you enjoyed the article and found it informative. I have deliberately kept it non legalistic, (a more legalistic article, “resign, do’s and don’ts”, click here when faced with choices. Also, “5 reasons not to resign” click here. All this it can be difficult, its challenging times to say the least.

You do not have to be bullied, harassed, subjected to frivolous workplace investigations, unfair dismissal issues etc. Give us a call, its free, we are experienced workplace advisors and representatives. Explore your options. all matters to do with Fair work Australia, call us today. Facing a toxic workplace, that’s pressures you to resign? We have a informative page on coping click here, and a great article on the topic, click here.

We are here to help Call 1800 333 666

Another article that may be of interest for you on reasons not to resign, click here

Forced out of your job click here

Resign, forced to leave my job click here

Constructive dismissed, not a unfair dismissal, click here

Constructive dismissal, withholding wages, click here

Resignation Letter Do’s and Don’ts

upset-resigning-in-anger
You might feel this way, consider your options first. Are you feeling frustrated out of your job or were you forced to resign.

Resignation Letter Do’s and Don’ts

Once you resign literally there is no going back. Get advice, read on.

Are you contemplating resigning or quitting your job?

Have you drafted your resignation letter and debating whether to send it off or not? Before you press send, please ensure you are covering all necessary bases to preserve your legal rights.

Many people resign under normal circumstances, they often draft a heartfelt resignation letter to their employer. They thank the employer for all the opportunities and wish them well for the future. Nothing wrong with that, if that’s how you feel and want to leave on good terms as they say. You may want to rely on this Employer for a reference.

However, many employees resign when they might not necessarily want to but instead they feel as though they have no other choice. Even when your employment relationship is no longer viable, you should still never resign under any circumstances. In workplace or industrial relations terms this a constructive dismissal by way of being forced to resign.

Constructive dismissal, this is a very high bar to meet

When an employee resigns. They resign a lot of their rights away and it makes it difficult for lodging a claim against their employer. Although an employee may argue forced resignation or constructive dismissal, this is a very high bar to meet. There is no other way to put it, the Fair work Commission is seriously tough when examining forced resignations. If you no longer want to work for your employer, you can try and approach your employer about a mutual separation with an exit or severance package.

Alternatively, you may lodge a dispute (if you qualify under the general protections provisions of the Fair work Act). (read our general protections page or blogs) with the Fair work Commission and seek an exit or severance package. Which includes resignation, potential compensation and a deed of release with obligations of confidentiality.

And importantly non disparagement clause so you cannot be criticized in the work community or in the industry you seek future work. You should explore all your options prior to resigning. Unsure about what you can do prior to resigning, please give us a call on 1800 333 666 for a free and confidential consultation.

What you write in your resignation letter

You still decide you want to resign, please bear in mind what you write in your resignation letter. Your resignation letter is an official document that gives your employer notice of your departure from the company. Effective immediately or on a date in the future. If you are departing your employment on good terms, you may write a heartfelt and kind letter to your employer. However, if you are resigning because of a toxic or unhappy work environment, it is important to word your letter strategically. This is critical if you are going to lodge unfair dismissal or general protections claim.

considering-resigning-better than-being-dismissed
Sitting there and consider resigning. If you just want to resign and get out of there, then that’s what you do. However if you want to argue it was forced and you intend to lodge a unfair dismissal claim. Then your resignation letter has to reflect your true feelings. That is you have no choice and this is why.

Arguing your resignation is forced

If you are trying to argue your resignation is forced. It does not work in your favor to thank your employer for the opportunity and express that it has been a “pleasure” working for them. If you include this in your resignation letter, it is increasingly difficult to argue you were forced to resign. In order to demonstrate forced resignation or constructive dismissal in an unfair dismissal claim or general protections claim, the onus is on the employee to prove that they did not resign voluntarily. The employee must prove that the employer forced their resignation. It is the Employee who ended the employment relationship, the legal onus lays with the employee.

In the words of the full bench of the Fair work Commission in O’Meara v Stanley Works Pty Ltd, adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli, the test is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.

Employer not taken the action it did, the employee would have remained.

Similarly, the Australian case of Mohazb v Dick Smith Electronics Pty Ltd (No 2). States that

“an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”.

Mohazb v Dick Smith Electronics Pty Ltd
Resignation-Letter-Do’s-and-Don’ts
Don’t resign until you get advice. Once your out the door there is no going back.

Resignation letter

Resignation letters which make statements such as “I’ve really enjoyed working with the company”. and “thank you for everything you have done for me”. Is arguably not in the spirit of someone who considers that they have been forced out and are wishing to bring a claim. When lodging an unfair dismissal claim or general protections claim, arguing forced resignation or constructive dismissal, your employer will inevitably rely on your resignation letter to demonstrate your resignation was voluntary. Whilst it is your application, the onus is on you to prove the resignation was forced as it was you who ended the employment relationship.

Mention why you are resigning and reiterate that you feel forced to do so

Instead, when writing your resignation letter, you should mention why you are resigning and reiterate that you feel forced to do so. Complain about the issues you have been experiencing and express your disappointment with the company’s actions or inactions. Use this letter as a final attempt to raise your concerns with the company. Make it clear that your resignation is a direct result of their behaviour. Reiterate the words “forced” and “I have no other choice but to resign” as these will strengthen your claim of forced resignation or constructive dismissal.

You must take all necessary steps to demonstrate that your resignation was not voluntary. Make it very clear that the employer is in the wrong. If you don’t intend on pursuing a claim of forced resignation or constructive dismissal in the FWC and just want to leave, the wording is not as pertinent.

In some cases, employees want to resign and move on with their lives and so writing a neutral or positive resignation letter may encourage your employer to give you a good reference and put your differences aside. 

Resignation-Letter-Do’s-and-Don’ts
Waiting to tell his manager he is leaving. Get advice, reserve your rights, explore your options

Conclusion: Resignation Letter Do’s and Don’ts

If you are not comfortable with raising your issues in your resignation letter and indicating you are forced to resign because of what has occurred Then keep your resignation letter simple and neutral. This is particularly important if you do intend on making a complaint against them. You are not obligated to provide a reason for your departure. However keep in mind whether you are obligated to give your employer a specific notice period.

Nevertheless, do not thank them or indicate you are grateful for the opportunities they have provided you. Because this contradicts any argument of a forced resignation. All you need to say is date and sign a letter that states “I hereby resign from my position at [the Company] effective [insert date]”. This is all you are obligated to do.

To discuss your eligibility of lodging a claim of forced resignation or constructive dismissal, please give us a call on 1800 333 666 . For a free and confidential consultation. We are A Whole New Approach, we are not lawyers, but Australia’s leading workplace advisors. We are here for you, honest, prompt, free advice.

A Whole New Approach P/L work in all states, Including Victoria, NSW, QLD

Additional reading on Conclusion: Resignation Letter Do’s and Don’ts

Another article on resignation (hard to win) that may be of interest for you, Click here

Article on choice and resignations, click here

5 reasons not to resign, click here

Feel you are being forced out of your job, click here

www.awdr.com.au, 120 pages of instresting workplace related material

www.sexualharassmentaustralia.com.au. material on being forced to resign due to sexual harassment

5 Reasons Not to Resign

However, many people resign when they might not necessarily want to. When people resign, they often feel as though it is forced, or they had no other choice. Although your employment relationship may seem strained or failed, you should never resign because of this. Even if you feel you have no other choice but to resign, here are 5 reasons not to resign. .

5 Reasons Not to Resign, important to get advice

Constructive Dismissal or Forced Resignation Claim Are Difficult

5 Reasons Not to Resign is important to understand. Firstly, if you resign and want to lodge an unfair dismissal or general protection’s application, you first hurdle is demonstrating that your resignation really was forced. Whilst it is your application, the onus is on you to prove the resignation was forced as it was you who ended the employment relationship.

If you are terminated / dismissed, the onus is on your employer to demonstrate that either the dismissal was fair (in an unfair dismissal) or the dismissal was not adverse action because of a workplace right or exercise of workplace right (in a general protections claim). When either claim is lodged and the employee has resigned, it gives rise to a jurisdictional objection (being “the employee was not dismissed”) that the employer can rely on to defend your claim. 

The term dismissed is defined where an employee has been terminated at the employer’s initiative. In a constructive dismissal or forced resignation claim, an employee must argue they were forced to resign because of the conduct or course of conduct engaged in by the employer. A forced resignation, also referred to as a constructive dismissal, is when an employee has no real choice but to resign and thus, the onus is on the employee to prove that their resignation was not voluntary.

In order to satisfy the legal test for a forced resignation or constructive dismissal claim, the employee must demonstrate that the employer has taken action with the intent to bring the relationship to an end or that has that probable result. In the words of the

Fair work Commission full bench in O’Meara v Stanley Works Pty Ltd, adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli, the test is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.

Similarly, the Australian case of Mohazb v Dick Smith Electronics Pty Ltd, states that “an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”.

Mohazb v Dick Smith Electronics Pty Ltd (No 2),

Thus, the Commission will look at why an employee resigned on that particular day and they may pose the question, why did you not resign the day before or the day after? Thus, the employee must first satisfy the Commission that the dismissal was forced, constituting a dismissal, prior to even discussing whether it was fair or whether it constitutes adverse action. An employee is always better off being terminated than resigning because there is one less hurdle to overcome, should the employee chose to take action in respect of their resignation.

Resignation Is a Last Resort

Secondly, be sure resignation is what you really want. It is more often than not that an employer will not let you withdraw your resignation once you have given your notice. Thus, prior to resigning, brainstorm what the problem is and potential steps you can take to fix it. For instance, if you are experiencing bullying or harassment, put in a complaint with your boss or HR department. In most cases, employers will accommodate and deal with employee complaints adequately as they owe a duty to provide a safe and amicable work environment.

However, if you put in a complaint and the employer begins acting adversely towards you by either cutting your hours, demoting you, transferring you etc. this is still not a reason to resign. There are a number of applications you can lodge to deal with your workplace issues and disputes, whilst you are still employed. If you are being bullied, you may be eligible to lodge an application for an order to stop Workplace Bullying (Form F72) or a General Protections Application not involving dismissal (Form F8C), if you are experiencing any adverse action.

In 5 Reasons Not to Resign you have to consider other options, the possibility of a workers compensation claim, report your employer to the work safe authority in your state, a claim or a complaint to the various equal opportunity bodies, lobby your state or federal member of parliament, you have to work out what is in your best interest.

Regardless of your situation, resignation is the last resort. If you are unsure about what you can do prior to resigning, please give us a call on 1800 333 666 for a free and confidential consultation.

Maybe You Just Need a Break

Thirdly, if you are contemplating resigning, prior to making the firm decision to do so, request leave or time off to gather your thoughts. You can consult your doctor and explain the stress you are feeling and the fact that you are contemplating resigning. Your doctor may be able to provide you with a medical certificate for stress leave and this will give you some time to re-evaluate your situation. Once you have stepped away and taken a break from your employment, it may provide you with some clarity as to what you should do.

If the stress from work has caused you depression or anxiety, you may be eligible to lodge a workers’ compensation claim for a psychological injury. This means you is your claim is approved, you will be on paid leave until you are fit to return to work.

Aforementioned, you should never resign, and it is a last resort. You should explore all other options prior to resigning or take a break to re-think about your decision. If you are unsure about what you can do prior to resigning, please give us a call on 1800 333 666 for a free and confidential consultation.

COVID-19 And Job-Hunting

Fourthly, if you are contemplating resigning, be sure you have a plan or you have secured alternative employment. Due to the COVID-19 pandemic, there may be difficulty finding alternative employment which is at the same level and with similar remuneration. Job-hunting can be difficult and stressful during the best of times but particularly amidst COVID-19. Many employers are struggling to stay afloat and they are more concerned with cutting costs by making their current employees redundant, rather than hiring new employees. Thus, prior to resigning, be sure you know how you are going to earn an income once you are no longer employed. Nevertheless, even if you do secure alternative employment, you still have to make it through your probationary period. Thus, your alternative employment is not secure until your probationary period is over and this needs to be considered.

Don’t Let the Employer Win

Last of all, if you do chose to resign, you are letting your employer win. If you are feeling forced to resign or “pushed out” and you eventually do resign, you are doing exactly what the employer wanted you to do. Further, you are potentially letting your employer get away with pushing you out.

If it is clear that the employer no longer wants you there and you don’t want to be there, you can try and approach your employer about a mutual separation with an exit or severance package. Bear in mind though, employers do not owe you a “severance” package. If your employer has dismissed you, they are obligated to pay out any statutory entitlements and potential notice, if the dismissal was not for serious misconduct. If an employee resigns, their final pay will be their entitlements and notice, if the employer doesn’t require the employee to work out the notice period.

Aside from the statutory minimum requirements or the terms in your employment contract, an employer is not obligated to pay you anymore. You may seek an exit or severance package through a General Protections Application not involving dismissal (Form F8C). To check whether you are eligible to make this claim, please give us a call on 1800 333 666 for a free and confidential consultation.

I hope the article 5 Reasons Not to Resign was informative for you. We are A Whole New Approach P/L, we are not lawyers, we are the nations leading workplace advisors, get advice from us, its free, confidential. We undertake no win, no fee work, unfair dismissals, constructive dismissals, termination of employment, diversity in the workplace issues. Looking for a lawyer, try us first. All states, Victoria, NSW, QLD, SA, WA, Tas, NT

Forced to leave my job click here

Don’t resign, do it, before you get advice

Being forced out of your job, click here

Constructive dismissals are hard to win, click here

Resigned in style, click here

Resign? Being forced out of your job?

forced-to-resign
Resign, don’t do it. Don’t be bullied into resigning, get advice first

Resign? Being forced out of your job?

Are you really?, is the question. Its a high test at the Fair work Commission. You have to argue that’s its impossible to stay. Many employees who resign, enquire after they resign. Its too late. Explore your options, develop a strategy where you want to be in say 2 months time. You want to get out of the current employer. and you want a new job. So how do I get there?, How do I do this?, What’s the process?

Many employees who are suffering view the workplace, their lives one day at a time. Its survival thinking for many. Some go off on doctors certificates. Nothing wrong with that if that’s what your medical practitioner states. But only when the sick leave runs out, do many employees say, hey what do I do now. Some time out could be a good thing, but start developing that strategy. sometimes though you have to take a step back and look at the bigger picture.

Before You Resign, Consider Your Options

Regardless of whether you want to stay or leave your employment, it is important to remember to never resign! Once you resign, the onus is on the employee to prove they were forced to do. This may be a difficult task. You ended the relationship, you have prove it, that it was the employer’s fault.

If your having issues at work and no longer want to work for your employer? Are you experiencing difficulties in your employment and don’t know what you can do to fix it? Rather than resigning or suffering in your employment, we can assist employees in lodging disputes against their employer. Test the employer out, don’t walk away empty handed. What will the employer pay to keep you? or see the back of you?. At least then its sorted out.

Get packaged out, instead of just resigning

Aforementioned, it is important that you never resign. Once you resign, the onus is on the employee to prove they were forced to do so. Prior to making the decision to resign. It is important to consider a dispute option, discrimination claim and other processes you may be eligible to lodge. This is in order to exit your employment with the best possible advantage. You have to think though how long you will be out of work, reputational damage, etc.

Fair work Commission claim

A Fair work Commission Form F8CGeneral Protections Application not involving Dismissal. Is an application in which employees can seek a preventative remedy but also possible compensation through an exit package. For more information on what a General Protections claim is, please visit our General Protections page or call us on 1800 333 666

Ask yourself, are you being bullied at work after making a complaint? Have you made a complaint about something in the workplace (called excising a workplace right) and now the employer is treating you less favorably? Is the employer demoting you after you made a complaint?

If an employee can demonstrate that the employer is acting adversely towards them as a result of them exercising their workplace rights. We can lodge an F8C Application to resolve the issues you are experiencing at work and potentially restore your employment relationship.

Through these applications and disputes. We can help clear your name of any allegations that an employer may have brought against you. We can request a transfer to another position within the Company. Possibly restore a previous position if you have been demoted and many other similar remedies. If you want to fight for your job, we can help!

Once-you-resign-there-is-no-going- back
Once you resign, usually there is no going back. This thinking of they can’t survive without me. They will never be able to replace me, is just nonsense.

Employment relationship has deteriorated beyond repair

However, do you feel like the employment relationship has deteriorated beyond repair? Do you want to continue working or would you prefer to leave? If an employee can demonstrate that the employer is acting adversely towards them as a result of them exercising their workplace rights. As a result, does not wish to continue their employment, the employee can see an exit package, by way of resignation, to terminate the employment relationship. If the employee can demonstrate pain and suffering as a result of the workplace bullying. Or harassment the employee may seek compensation in the form of general damages.

Bullying or harassment

Are you experiencing bullying in the workplace and want it to stop so you can keep your job? Are you wondering what conduct actually constitutes bullying in the workplace?

Under the Fair Work Act 2009 (Cth) (the FW ACT). Workplace bullying occurs when an individual or a group of individuals repeatedly behaves unreasonably towards a worker. Or a group of workers of which the worker is a member, at work and that behaviour creates a risk to health and safety. Depending on the circumstances, employees’ may be eligible to lodge an application for an order to stop Workplace Bullying (Form F72). Possibly a General Protections Application not involving dismissal (Form F8C).

bullied-out-of-job
Bullying, stand up for yourself, call us, we’ll stand beside you

Order to stop Workplace Bullying

A Form F72 – Application for an order to stop Workplace Bullying. Is an application which seeks a preventative remedy, not remedial, punitive or compensatory. For the FWC to be able to make orders to stop bullying. It must be satisfied not only that a worker has been bullied at work by an individual or a group of individuals. But also that there is a risk that the worker will continue to be bullied at work by that individual or group of individuals.

Once an employee lodges a Form F72. The Fair Work Commission will consider the evidence and whether, assessed objectively, that evidence constitutes bullying behaviour and, in that context, whether it comprised reasonable management action carried out in a reasonable manner. Prior to a determination being made, the Fair Work Commission is likely to hold a preliminary conference to consider how the matter will proceed. How the parties will conduct themselves during the course of proceedings. A matter may then be listed for a determinative conference or a hearing to determine whether or not to make an order to stop bullying.

Fight for your job

Don’t give up. Fight for your job. Don’t let some petty employee, or manager or employer derive you of your income and enjoyment in life. You do have rights, its how you excise them is the key. Give us a call to discuss, explore your options. Sometimes you feel it is easier to resign. Maybe it is, however you have to think it through, get advice, work out what’s best for you and your family

Conclusion: Resign? Being forced out of your job?

We are A Whole New Approach P/L. We are not lawyers, however if you looking for a lawyer, we are the alternative. AWNA are the nations leading workplace advisors, any issues around unfair dismissals, general protections or any other workplace matter we are happy to help. 1800 333 666 . 7 days a week. all calls confidential, prompt and to the point. You can see from over 100 blogs we know what we are talking about. We are at the forefront of workplace commentary, always questioning the system, calling it out as we see it.

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Forced To Leave My Job (2022 update)

Forced-To-Leave-My-Job-(2022-update)
Forced To Leave My Job, do something about it. No employer has the right to take away your income. for no good reason

Forced To Leave My Job (resign)

What is constructive dismissal?

Forced to leave my job, is defined under the Fair Work Act 2009 (Cth) (the FW ACT), as a constructive dismissal. The term dismissed is defined where a person’s employment has been terminated at the employer’s initiative. Or a person was forced to resign because of the conduct or course of conduct engaged in by the employer.

A forced resignation, also referred to as constructive termination or dismissal, is when an employee has no real choice but to resign. This means the onus is on the employee to prove that their resignation was not voluntary and that they were forced to leave. This issue may form the basis of a jurisdictional issue when dealing with claims such as Unfair Dismissal applications in the Fair Work Commission.

Have you been forced to leave?

In establishing whether an employee has been “forced to leave my job”. The employee must demonstrate that the employer has taken action with the intent to bring the relationship to an end. Or that has that probable result. In the words of the full bench in O’Meara v Stanley Works Pty Ltd, adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli., The test is whether the employer engaged in conduct with the intention of bringing the employment to an end. Or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to leave.

Similarly, the Australian case of Mohazb v Dick Smith Electronics Pty Ltd (No 2). States that “An important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee”. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”. For example, an employee leaving after having been paid under half of what he was owed in wages over a period of 4 months.

Termination by the employer as their conduct forced the employee to leave.

This was held to be a termination by the employer as their conduct forced the employee to leave. Similarly, if an employee is complaining about something within their right. Such as sexual harassment they are suffering, and the Company continually fails to take action, the employee may feel forced to leave as they can no longer bear to work.

Forced-To-Leave-My-Job
You know its wrongful, the issue is it under the Fair work Act. Redundancies are either genuine or non genuine. S389 of the act decides the formula. The so called redundancy dismissal is used all the time to get rid of employees. Employers forced employees down this path by abolishing their position. Forcing you out by giving you a package. Or simply no more work available to you. This can be argued is a forced resignation.

If an employee feels forced to leave in the heat of the moment or under extreme pressure. Then special circumstances may arise.

What can I do if I feel I have been forced out of employment?

In order to qualify for unfair dismissal, the employee must have completed at least the minimum employment period with the employer. The minimum employment period is 6 months continuous service at a particular time, for non-small business employers. If the employer is a small business, which employs less than 15 employees at the relevant time, the employee must have completed at least 12 months of continuous service at the particular time.

A general protections claim can be made if the employee feels forced to leave after they have exercised a workplace right and made a complaint in regards to their employment and because of this complaint, the employer has acted adversely towards the employee by engaging in conduct that has forced the employee to leave. An Unfair Dismissal application or a General Protections Application must be lodged with the Commission within 21 days of the termination taking effect.

Unfair Dismissal and Being Forced to Leave

If an employee is forced to leave, the employer may object to this unfair dismissal application on the basis that the employee effectively resigned. Thus there is a jurisdictional issue. If the employer objects on the basis of a jurisdictional issue, a jurisdictional hearing can occur before or after conciliation. A jurisdictional hearing is a formal process by which a member of the Commission will make a decision as to whether the Commission can deal with the unfair dismissal case.

This process involves the parties to the matter making submissions, giving sworn evidence, and provides an opportunity to challenge or cross-examine the other party’s evidence. The jurisdictional hearing will assess whether the employee has been forced to leave or resign and thus they have been constructively terminated, in order to qualify for an unfair dismissal application.

Redundancies-are-either-genuine-or- non genuine
Losing your job through no fault of your own (redundancy). Yet the employer wants you out of the place ASAP. All points to the question is it genuine?

Forced resignation applies

Sexual harassment

Obvious demotion

Unreasonably relocated

Significant reduction in pay and bonus structure.

Bullied and harassment, causing health risk

OH&s breaches, physical well being is at risk

The list is brief, its to give you an idea of what is considered constructive dismissal. Give us a call to discus your circumstances. Never resign until you have got advice

Compensation and remedies

For an unfair dismissal claim, compensation may be awarded to an employee if the Fair Work Commission is satisfied that reinstatement is inappropriate. Compensation in this form is designed to compensate unfairly terminated employees in lieu of reinstatement for losses reasonably attributable to the unfair termination. As a result, compensation cannot be awarded for shock, distress, or humiliation.

dismissed-getting-compensation
Find out your options, what your unfair dismissal or general protections claim is worth.

When determining the amount of compensation that may be awarded

For a general protection claim, the Fair Work Commission may order the employee to be reinstated. Make orders relating to continuity or lost remuneration and compensation. In regards to compensation, this can include non-economic loss such as hurt, humiliation, and distress. This is where there is a causal connection between the contravention and the loss. Compensation in this form is referred to as general damages.

Forced To Leave My Job (resign)

We are not employment lawyers, but leading workplace representatives, commentator’s and advisors, want advice?. Get it from us, its free, prompt and honest, we are here for you. Any Fair work Australia and Fair work Commission matters, including unfair dismissals, workplace investigations, redundancies. Workers rights, probation issues, whatever give us a call 1800 333 666.

We are proud of our staff and the outcomes we achieve for our clients.

We work in all states. Victoria, NSW, QLD, SA, WA, Tas, NT

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