Have you experienced a serious change in circumstances at your work that has forced you to resign? If this resignation was the result of undue pressure or influence from your employer to force you to leave, you may be able to take action against them for constructive dismissal.

Generally where there is a claim for unfair dismissal or a disputed termination claim, there is a clear termination of employment by the employer. However, in some cases an employer may tacitly force an employee to resign through their actions or lack of action depending on the circumstances.

If you have a workplace termination dispute or are an employer wanting your contracts review, LawPath’s experienced employment lawyers can help you with your concerns.

What is Constructive Dismissal?

Constructive dismissal may occur where an employee resigns or is forced to leave work as a result of the employer’s actions. There is a number of scenarios where this may occur including where:

  • An employer expressly suggests to the employee that they should resign;
  • An employer creates extremely difficult and impossible tasks for the employee that they cannot be reasonably expected to complete;
  • An employer fails to provide a safe working environment for the employee;
  • An employer ignores or fails to stop workplace discrimination or harassment towards an employee; or
  • An employee unreasonably changes the terms of the employment; or
  • An employee makes unauthorised and illegitimate cuts to the employee’s wages.

Although the employment contract is terminated by an employee, the act of termination may be due to the employer’s actions or undue pressure. Consequently the act of termination stems from the ‘initiative of the employer’ whose actions towards the employee forced them to resign.

Constructive dismissal arises where the behaviour or conduct of the employer is so “harmful, adverse or unfriendly” to the contract of employment that the employee cannot be expected to tolerate the behaviour. Consequently the employee is entitled to treat the employment contract as if it were terminated, resulting in constructive dismissal.

Legislative Protection

Where an employee wishes to bring a claim for constructive dismissal against an employer, it can be used as part of an unfair or unlawful dismissal claim. This is because constructive dismissal is not a separate claim.

Under “What is an unfair dismissal” of the Fair Work Act 2009, the section states that “a person has been dismissed if the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer”.

An employee must prove that the employer’s conduct was the principal contributing factor resulting in their resignation and that the employee would have remained employed if not for the alleged conduct.

The Fair Work Commission is the responsible adjudicating authority on cases of unfair dismissal and employees must to apply to the Commission within 21 days of the dismissal taking effect.

Conclusion

Understanding constructive dismissal is an important step to establishing a claim for unfair or unlawful dismissal. The legislative protections ensure that employers are held responsible for their conduct that results in the forced resignation of their employees.

If you have been forced to terminate your employment or would like to learn more about constructive dismissal, LawPath’s experienced employment lawyers can help you with your concerns.

Want to learn more? Contact a LawPath consultant on 1800LAWPATH to learn more about customising legal documents, obtaining a fixed-fee quote from our network of 600+ expert lawyers or any other legal needs.

Jennifer Wang

Jennifer is a Paralegal, working in our content team, which aims to provide free legal guides to facilitate public access to legal resources. With a keen interest in media and IP law, her research focuses on the evolving role of the law to navigate new and emerging information platforms.