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 you should not.
Constructive Dismissal or Forced Resignation Claim Are Difficult
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.
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.