BACKGROUND

The Fair Work Commission (‘FWC’) states that a forced resignation happens when you have no ‘real choice’ but to resign.  That is, your resignation was likely not a ‘clear and unmistakable resignation’, therefore raising questions regarding whether your resignation was, in fact, voluntary.  In any subsequent claim or proceedings, you must prove that you did, in fact, not resign voluntarily and / or prove that your employer forced you to resign. Whether your employer gave you no choice but to resign is a tight threshold, however it is a threshold that must be closely drawn and rigorously observed.  Ultimately, success in your potential claim may come down to one small point, submission, email, or conversation.  That said, our employment lawyer team here at Ramsden Lawyers encourage all employees to keep a personal diary, particularly if you are suspicious of unfair activity relating to your employment or potentially being forced to resign.

 

IDENTIFYING A FORCED RESIGNATION

Under common law, the FWC, and the Fair Work Act (‘Act’), a forced resignation is generally referred to as a constructive dismissal.  Importantly, under common law, employers are entitled to treat a ‘clear and unambiguous resignation’ as a resignation.  That said, the below are some examples of what a forced resignation may look like:

1. Heat of the moment resignation – at common law, if you have resigned in ‘the heat of the moment’, whether that be under ‘extreme pressure’ or in ‘special circumstances’, then an employer may be required to allow you a reasonable time period to pass before finalising your resignation. In some circumstances, your employer may also have a duty to confirm your intention to resign;
2. Coercion – if your employer is threatening or coercing you to resign, they are likely acting in contravention of the principles set out under the FWC and / or the Act;
3. Future resignation – if you respectively tell your employer that you plan to resign in the future as to allow them suitable time to re-structure, but your employer instead takes that as an opportunity to make your resign immediately or sooner that you had anticipated;
4. Failure to pay wages – if your employer is not paying your minimum wage entitlement, then resigning may be considered a forced resignation.

 

IDENTIFYING A REASONABLE RESIGNATION

Under common law, the FWC, and the Act, your personal circumstances will not be considered a forced resignation in the following circumstances:

1. You resigned to avoid disciplinary action – if you have resigned to avoid disciplinary action or performance management for poor workplace conduct and / or performance, it is unreasonable for you to claim forced resignation; and / or
2. You have misinterpreted your employer’s conduct – you may have misinterpreted your employers conduct leading up to your resignation. That said, what may look like a forced resignation may, in fact, not be.  In light of this, it is important that you do resign until you are fully comfortable with your resignation.  That said, you may want to seek legal advice prior to resigning to ensure that your resignation is or is not being forced.

 

NEXT STEPS, DO I NEED AN EMPLOYMENT LAWYER?

If you are looking to seek legal advice regarding ‘forced resignation’ as an employer or employee, Ramsden Lawyers are able to assist you and one of our expert employment lawyers would be happy to help.  We can arrange an initial consultation to assist you in navigating the procedures set out under the relevant legislation for your circumstances.  Our litigation and expert employment lawyer team can assist in any potential claim or defence that you may have.

 

KEY TAKEAWAY’S FOR EMPLOYEES

If you think that your employer is forcing you to resign, you should first speak with your employer in a respectful manner to understand why your employer is engaging in such conduct.  Ensure to remain calm and respectful in all discussion, and document everything you can which may assist in any future claim.  If you have already resigned and believe it was forced, there are very strict timeframes under the Act, sometimes as little as 21 days, and you may want to seek legal advice from our expert employment lawyers as soon as possible to protect your rights and discuss your matter further.  If you take any action against your former employer and are successful, you may be entitled to be reinstated in your role, paid back-pay to the date you were made redundant, or even damages for a maximum of 6 months’ worth of your pay.

 

KEY TAKEAWAY’S FOR EMPLOYERS

Business owners should be aware that they have strict legal obligations to meet under the Act.  That said, even the largest businesses get it wrong at times, and small to medium business owners should be wary when making business decisions that may ultimately be a breach of relevant employment laws in place to protect Australian employees. Businesses should carefully consider their decisions to ensure that they are not in breach of any agreement or statutory protection.  You can read more on our website by clicking the following link or, alternatively, you may wish to reach out to our employment lawyer team or business / commercial lawyers to further discuss your business’ current and proposed operational plans.