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 constructive termination or 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 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 their employer, 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. 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.
If an employee feels forced to leave in the heat of the moment or under extreme pressure, special circumstances may arise.
What can I do if I feel I have been forced to leave?
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, and 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.
General Protections and Being Forced to Leave
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.
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 where there is a causal connection between the contravention and the loss. Compensation in this form is referred to as general damages.