20 Dec 21 Forced Resignation – An Employers Perspective
It is possible for a resignation to be classified as a “dismissal” for the purposes of the Fair Work Act 2009 (Cth).
A forced resignation (or previously known as constructive dismissal) is when an employee resigned but successfully argues that he/she was forced to because of the conduct of the employer.
The employee will need to satisfy the Court/Commission that the employer took action with the intent to cause the resignation. The threshold for a forced resignation is very high as it is generally taken that an employee resigns from their position on their own accord.
It is common for employees to feel pressured or unhappy prior to a resignation the following examples are employees who were not forced to resign:
- an employee resigning instead of attending a disciplinary meeting;
- an employee resigning due to being suspended and under investigation; or
- an employee resigning during employment change negotiations.
It is also common for an employee to resign in the heat of the moment. As a general rule, employers are able to take a resignation as clear and unambiguous. However, if an employee has portrayed significant distress or emotion at the time of the resignation, then an employer may need to give the employee time before confirming the end of their employment.
While it is rare for forced resignation to be successful, it is prudent (although not a requirement) for employers to confirm a resignation upon the employee making it clear that they no longer wish to be employed.
If you are having difficulties with an employee who has resigned, then our team at MJT Law are happy to advise of your options.