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.
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 Commion is seriouly 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. 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.
If 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.
Arguing your resignation is forced
If you are trying to argue your resignation is forced, it does not work in your favour 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.
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”.
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.
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 and 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 and 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 Fair Work Commission 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.
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, 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 but 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.
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