2 November, 2023
Can a worker bring an unfair dismissal claim if they resign?
An employer is generally able to treat a clear and unambiguous resignation as a resignation. However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise.
An employee may still be able to make an unfair dismissal claim if they can prove that the employer’s actions forced them to resign.
This type of claim is known as a “constructive dismissal” or a “forced resignation”. The onus is on the employee to prove that they did not resign voluntarily.
The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one. In special circumstances an employer may be required to allow a reasonable period of time to pass. The employer may also have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.
Further information about forced resignations can be found in the Fair Work Commission’s Unfair Dismissal Benchbook at fwc.gov.au
