If you are experiencing issues at work, it is important to seek legal advice before you resign, particularly if you wish to make a Fair Work claim against your employer.
This is because, to make a claim for unfair dismissal or general protections (involving dismissal) in the Fair Work Commission, a key feature of such a claim is that you have been dismissed, which requires some action on the part of the employer. If you resign from your employment, this will complicate your claim, as you will be required to clear a difficult jurisdictional hurdle.
We have seen many recent Fair Work decisions considering the issue of forced resignations, with most employees failing to satisfy the Commission that they were forced to resign. As such, if you are contemplating resigning and then claiming you have been unfairly dismissed you might want to think again.
Whilst employees may feel that their employer has placed them in a situation in which they have no choice but to resign, in practice whether this is in fact the case is looked at objectively, and it can be a high bar to clear before the Commission, so it is important to consider this properly and if unsure, obtain advice before taking this step.
Recent cases dealing with forced resignations
Common threads in recent cases dealing with forced resignations include:
- Employers failing to deal with interpersonal workplace issues in a timely or effective manner;
- Employees feel like their complaints are not being taken seriously;
- Miscommunications in periods of heightened stress for employees and management.
What is meant by a “forced resignation”?
In order for the Fair Work Commission to hear a dismissal matter, the employee must have been ‘dismissed’. A person has been ‘dismissed’ if:
- the person’s employment with his or her employer has been terminated on the employer’s initiative; or
- 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.
Examples of where the Commission has found that resignation was forced
When considering whether a resignation was forced the Commission will consider the test set down by the Full Bench in Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli, which involves looking at whether:
- the employer engaged in conduct with the intention of bringing the employment to an end; or
- 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.
For conduct to be said to have forced the employee’s resignation, it must have, objectively, resulted in the employee having “no effective or real choice but to resign”. Continuing in employment must not be a real or effective option for the employee. This is a high bar to clear before the Commission.
Some examples of where the Commission considered employees to have been forced to resign (or where a resignation was held to not have occurred) include:
- An employee giving notice of his resignation after having been paid under half of what he was owed in wages over a period of 4 months. The Commission considered that the employee could not be expected to continue to provide services to his employer in a situation where the employer did not pay his wages;
- An employee who had worked for a retailer for over 12 years in a variety of roles, was asked to manage a poorly performing store and agreed on the basis of the maintenance of her current salary package. Within a year the company sought to have the employee agree to a change in the terms of her contract, equivalent to a reduction of over $30,000 per year. When the employee did not accept the change, the company treated her refusal to accept the new terms and conditions of employment as a resignation. The Commission concluded that the actions of the company brought the employment relationship to an end and found that the applicant was dismissed at the initiative of the employer.
- A heated discussion between an employee and her manager resulted in an employee believing she had been dismissed and the employer believed the employee had resigned. The employee continued to attend work afterward believing she had to work out the notice period for her dismissal. The Commission determined that the employee did not resign because she did not demonstrate an intention not to be bound by her contract of employment.
Examples of where the Commission has found a resignation was not forced
The Commission has considered the following circumstances not to constitute a forced resignation:
- An employee admitted to police that he had taken company property without authorisation resigning rather than attending a scheduled meeting with his employer.
- An employee resigns after having been placed on supervisory requirements.
- An employee resigns after the employer repeatedly paid her wages late and failed to pay superannuation. The lateness was commonly one to two days, and the Commission found that whilst the employer’s conduct was improper the circumstances did not leave the employee with no choice other than to resign.
It’s a High Bar to Clear
If you feel like they have no other choice but to resign you may feel you have a basis for a claim. However, forced resignation is a high bar to clear, so it is far preferrable not to have to argue it where possible.
The Full Bench of the Australian Industrial Relations Commission in ABB Engineering Construction Pty Limited v Doumit outlined why the bar was so high, saying:
Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer… it is important that that line be closely drawn and rigorously observed… The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively…Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.
Cases will also turn on the exact factual circumstances you are experiencing, so it is important to get advice if you are considering resigning, but still want to bring a Fair Work Claim.
What about where you are subjected to bullying and harassment?
In a recent decision by the Commission, an employee was found not to have been forced to resign in circumstances where she had experienced bullying and harassment at work and did not feel her employer was treating the matter seriously enough. The Commission considered that the employee could have:
- waited for the outcome of the employer’s HR processes; or
- taken medical leave,
rather than resign.
It is a common experience for employees who think they are being bullied or harassed to feel like they have no choice but to resign. It may be, that subjectively (that is, in the mind of the employee) there is no choice, however, the Commission will look at it objectively (that is based on facts and not your personal viewpoint), and consider the choices available which may not have been acceptable to the employee, but which are otherwise choices available to them other than resignation. For example, the Commission has considered the following to be options (instead of resignation) in the context of bullying and harassment:
- Seeking a meeting to voice concerns;
- Raising a complaint, formally or informally, to the employer;
- Seeking a stop-bullying order in the Commission.
There does not have to be any guarantee that the alternative options would have been successful – just that there were other real or effective choices available to an employee that would have allowed the employee to continue.
Get help from an employment lawyer before you resign
If you are experiencing issues at work and you’re not sure what to do, consult with an employee’s lawyer who can give you advice on your rights as soon as possible and before you resign.
If your health is suffering due to a workplace issue you should also consider consulting a health professional such as your doctor or a counsellor.
Our team of Employment Lawyers can help you. Book a complimentary 15-minute consultation or call us at 1300 80 67 80 to discuss your issues.