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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.


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,


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 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, 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.

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