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Resignation can be unfair dismissal

It may come as a surprise to an employer to receive an unfair dismissal application from an employee who has resigned. But, in certain circumstances, if an employee is forced to resign, the employee may be taken to have been constructively dismissed and bring an unfair dismissal application.

When will an employee be constructively dismissed?

An employee is considered to be constructively dismissed if the employee has been forced to resign because of the conduct engaged in by the employer.

There are two main situations where an employee who resigns is considered to be constructively dismissed, namely:

1. The employer expressly asks the employee to resign. (For example, asking the employee to choose between resigning and having their employment terminated); or

2. The employer’s conduct makes the employee’s work situation so untenable that the employee has no option but to resign. This could include anything from reducing the employee’s hours of work, to bullying and harassment by the employer or another employee that the employer has unreasonably failed to prevent.

The relevance to an unfair dismissal claim

Under the Fair Work Act, an employee who is constructively dismissed is considered to have been dismissed for the purposes of the unfair dismissal provisions. This means that if the employee meets the remaining criteria, such as length of employment and their earnings fall within the threshold, the employer could find itself defending an unfair dismissal claim even though the employee resigned.