Being forced to resign can qualify as a claim for unfair dismissal if the employee had no real choice but to resign due to employer conduct, a concept often referred to as constructive dismissal. Employees must typically demonstrate that the employer’s actions, such as harassment, unsafe work conditions, or undue pressure, effectively left them no reasonable alternative but to resign. In constructive dismissal scenarios, the burden is on the employee to show their resignation was not voluntary but caused by the employer’s behaviour that made continued employment untenable. If an employee successfully proves forced resignation as constructive dismissal, they may be eligible to pursue legal remedies under unfair dismissal laws, subject to applicable filing deadlines and eligibility criteria.
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Most employees resign from their positions voluntarily, making a conscious decision to move on to new opportunities or life circumstances. However, some resignations occur under duress, where employees claim they were forced to leave due to their employer’s improper conduct or unrelenting pressure. The critical question in these situations is whether the resignation was truly voluntary or effectively involuntary. This distinction can be difficult to determine and requires careful assessment of the circumstances. So, is forcing an employee to resign grounds for unfair dismissal in 2026? This comprehensive guide explores this complex area of Australian employment law.
Understanding Forced Resignation
Forced resignation, commonly known as constructive dismissal, occurs when an employee has no genuine choice but to resign as a result of their employer’s actions or conduct. Despite technically submitting a resignation, the employee can argue that their decision was not made freely or voluntarily.
A typical example involves an employer threatening to terminate an employee’s contract unless they resign immediately. While the employee may formally tender their resignation, the circumstances surrounding that decision reveal it was coerced rather than voluntary. In Australian employment law, forced resignation and constructive dismissal fall under the broader category of unfair dismissal claims, providing employees with potential legal recourse.
What Constitutes Unfair Dismissal?
Unfair dismissal occurs when an employee is terminated from their employment in a manner that is harsh, unjust, or unreasonable. In Australia, unfair dismissal protections are established under the Fair Work Act 2009 (Cth), which continues to govern employment relationships in 2026.
The Fair Work Commission (FWC) serves as the independent body responsible for determining whether a dismissal qualifies as unfair. When evaluating claims, the FWC considers multiple factors, including whether the employer had a valid reason for the dismissal, whether the employee was properly informed of the reasons for their termination, and whether the employer followed fair procedures throughout the process.
Eligibility Requirements for Unfair Dismissal Claims
Employees who believe they were forced to resign due to employer conduct can apply to the Fair Work Commission for relief. However, specific eligibility criteria must be met:
Minimum employment period: Employees must have completed a minimum employment period before they can lodge an unfair dismissal claim. For small businesses (those with fewer than 15 employees), this period is 12 months. For larger businesses, the minimum employment period is 6 months.
Filing deadline: Critically, employees must submit their application within 21 days of the dismissal taking effect. Missing this deadline can result in your claim being rejected, regardless of its merits.
Employment status: The protections generally apply to employees rather than independent contractors, though the distinction between these categories can sometimes be contested.
Is Forcing Resignation Illegal?
The straightforward answer is yes—forcing an employee to resign can absolutely constitute grounds for an unfair dismissal claim in 2026. However, success depends entirely on the employee’s ability to prove that their resignation was not voluntary.
The burden of proof rests with the employee. They must demonstrate that their employer’s unacceptable conduct or behavior effectively compelled them to resign, leaving no reasonable alternative. This evidential requirement makes documentation and witness testimony crucial in constructive dismissal cases.
Recognized Examples of Forced Resignation
Australian employment tribunals have recognized various scenarios as potential constructive dismissal. Common examples of employer conduct that may force resignation include:
Significant pay reductions: Substantially cutting an employee’s salary or wages without legitimate justification or proper agreement.
Failure to pay wages: Consistently failing to pay the employee their entitled remuneration on time or in full.
Unjustified demotion: Significantly demoting an employee to a lesser role without valid performance or business reasons.
Ignoring workplace harassment: Failing to address or prevent unlawful treatment such as bullying, harassment, or discrimination in the workplace.
Unsafe work environment: Neglecting to provide a safe workplace, exposing employees to hazardous conditions or unreasonable risks.
Encouraging resignation: Actively pressuring or coercing an employee to resign through intimidation, threats, or manipulation.
Fundamental changes to employment terms: Unilaterally making substantial changes to essential employment conditions that fundamentally alter the employment relationship.
Circumstances That Do NOT Constitute Forced Resignation
Not every resignation occurring in difficult circumstances qualifies as constructive dismissal. The Fair Work Commission has determined that certain situations do not meet the threshold for forced resignation:
Resigning before a disciplinary meeting: An employee who chooses to resign prior to attending a scheduled disciplinary interview, even if anxious about the outcome.
Performance management processes: An employee who resigns while on a legitimate performance improvement plan, provided the plan itself was reasonable and properly implemented.
Minor employment disputes: An employee who resigned over relatively minor issues, such as occasional delays in salary payments that were subsequently rectified.
Voluntary resignation during difficulties: Choosing to resign during workplace challenges that do not rise to the level of making employment untenable.
The key distinction is whether a reasonable person in the employee’s position would have felt they had no choice but to resign.
The Legal Process for Constructive Dismissal Claims
If you believe you’ve been forced to resign, taking prompt action is essential. The process typically involves:
Documenting everything: Keep detailed records of all incidents, communications, and evidence supporting your claim that the employer’s conduct made your position untenable.
Seeking legal advice: Consult with an employment lawyer who can assess the strength of your case and guide you through the application process.
Filing with the FWC: Submit your unfair dismissal application to the Fair Work Commission within the strict 21-day deadline.
Participating in conciliation: The FWC typically arranges a conciliation conference where both parties attempt to resolve the dispute.
Proceeding to hearing: If conciliation fails, the matter may proceed to a formal hearing where evidence is presented and examined.
Employer Responsibilities and Best Practices
Employers must exercise extreme caution when dealing with resignation situations. To avoid constructive dismissal claims, employers should:
- Ensure any decision to end employment has valid, documented reasons
- Avoid issuing ultimatums that pressure employees to resign
- Follow proper disciplinary and performance management procedures
- Address workplace complaints promptly and fairly
- Maintain open communication with employees about workplace issues
- Consult with employment lawyers before taking significant employment actions
Conclusion
In 2026, forcing an employee to resign absolutely can constitute grounds for unfair dismissal under Australian law. The key factor is whether the employee can successfully demonstrate that their resignation was not voluntary but rather the inevitable result of the employer’s unacceptable conduct.
Given the complexity of constructive dismissal claims and the strict procedural requirements involved, both employees and employers should seek professional legal advice when facing these situations. For employees who believe they’ve been forced out, acting quickly and gathering comprehensive evidence is crucial to protecting your employment rights.
