Forced redundancy or constructive dismissal is where an employee has no real choice but to resign due to the actions of their employers. In a case of forced redundancy/constructive dismissal, the onus falls onto the employee to show that the employer forced them into a situation that warranted their involuntary resignation. Under section 385 of the Fair Work Act 2009 (‘FWA’), constructive dismissals or a forced redundancy can be categorised as an unfair dismissal.
The Test for Constructive Dismissal/Forced Resignation
In accordance with O’Meara v Stanley Works Pty Ltd, PR973462 the current test for constructive dismissals is that there must be some action on the employer’s behalf that is intended to bring the relationship to an end.
What About In the Heat of the Moment Resignations?
Sometimes tensions can rise in an employer and employee relationship.In the case an employee in the heat of the moment or in a moment of intense pressure resigns, the employer must allow for a reasonable amount of time to pass. The employer in this period might also need to verify with the employee if the resignation was intended.
What Can You Do if You Think You’ve Been Forced to Resign?
After you have resigned, you have up to 21 days to lodge a claim with the Fair Work Commissions, after this you will receive a copy of the employer’s application and you will be given a time frame of 7 days to file a written application. After this, you will take part in a conciliation process, between yourself and your employer, facilitated by the Fair Work Commissions. If this matter is not resolved with the reconciliation process, the matter will be referred to the Commissioner of the Fair Work Commission, who will make a definitive decision on whether the dismissal was unfair or not.
If you would like further information or advice on consecutive dismissals, please reach out to us through the contact form or by calling us on 1300 377 997.
Pavanitha works as a legal intern with OpenLegal while currently studying a Bachelors of Science and Law at the University of Technology Sydney. Her interests lie in intellectual property law and medical law.
Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
