Is Forcing an Employee to Resign Grounds for Unfair Dismissal?
Do you believe your employer forced your resignation? You might be wondering whether you have a claim for unfair dismissal? Read our guide to find out more.
Most employees resign on their own accord. However, in some cases, employees claim they were forced to resign. This may be as a result of the employer’s improper conduct or pressure. The key determining factor is whether the resignation was voluntary or involuntary. This can be a fine line and one that should be assessed with caution. So is forcing an employee to resign grounds for unfair dismissal? Read our guide to find out more.
What is Forced Resignation?
You may have heard of the term ‘forced resignation’. But what does it actually mean? Forced resignation, also known as constructive dismissal, is where an employee has no real choice but to resign. It can occur as a result of the employer’s actions. For more information, you can read our guide ‘What is Constructive Dismissal?‘.
For instance, the employer may have threatened to terminate the employment if they refuse to resign. Although the employee has handed in their resignation, they could argue the decision to resign was not voluntary. Forced resignation or constructive dismissal fall under the ‘unfair dismissal’ claims.
What is Unfair Dismissal?
In short, unfair dismissal is where an employee is dismissed in a harsh, unreasonable or unjust manner. In Australia, the laws surrounding unfair dismissal can be found in the Fair Work Act 2009 (Cth). The Fair Work Commission (FWC) is responsible for deciding whether the dismissal is deemed unfair. They will assess a number of factors. This includes whether there was a valid reason for the dismissal or whether the employee was advised of the reasoning.
So Who Can Apply for a Claim of Unfair Dismissal?
Employees can apply to the Fair Work Commission if they have been forced to resign because of the employer’s actions. They must have worked the minimum employment period which is a minimum of 12 months in small businesses and 6 months in larger businesses. It is important to note that employees must make an application within 21 days of the dismissal.
Is it Illegal?
So is forcing an employee to resign grounds for a claim in unfair dismissal? The short answer is yes. It could be grounds for unfair dismissal if it is proved the employee was forced to resign. Ultimately, it is the employees responsibility to prove they did not resign voluntarily. Therefore, they must prove their employer forced them to resign due to the employer’s unacceptable behaviour. If you would like to resign voluntarily, you can customise our Letter of Resignation for free.
Examples of Forced Resignation
For instance, examples of this unacceptable employer behaviour may include:
- Significantly reducing an employees pay/salary
- Failure to pay the employee
- Significantly demoting the employee
- Ignoring or failing to prevent unlawful treatment of an employee i.e. harassment or bullying
- Employer fails to provide a safe workplace for the employee
- Employer encouraged the employee to resign
On the other hand, the following circumstances were found NOT to constitute forced resignation or constructive dismissal:
- Employee resigning prior to a disciplinary interview
- An employee on a performance management plan
- An employee who resigned over an employer’s failure to pay salaries on time
To conclude, forcing an employee to resign can be grounds for unfair dismissal. Hence, employers need to be careful when negotiating resignation. Employers should ensure there are valid and legitimate reasons for dismissing an employee. They should also avoid using ultimatums. We recommend consulting an employment lawyer who can offer assistance.
Laura is a Legal Intern at Lawpath. She is studying a Bachelor of Laws and a Bachelor of Business Administration at Macquarie University. Laura is interested in Intellectual Property Law and how technology can assist in improving access to justice.