You never resign until you get advice
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 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 (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. Forced to resign over piercings
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.
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?
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.
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
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.
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