A look at what constitutes a constructive dismissal, and whether or not you can force an employee to resign.
Nobody likes telling someone else that it’s time for them to leave. Sometimes it can seem like an easier option to just use an awkward silence, a forced cough, and repeated looks towards the door to send a message that it might be best if they take their cue to exit, stage right.
Nudged out of the ‘helicopter’
However, pressuring a colleague to leave in this way can end up being just as messy as having them fired, as Tony Abbott discovered after finally giving Bronwyn Bishop the hint that her position of Speaker of the House might not be sustainable following her 2015 “Choppergate” expenses scandal. Bishop duly resigned from her position, but appeared to hold a very public grudge against Abbott from that point onwards, often speaking out critically against him.
Dealing with verbal insults isn’t the only problem that a business might face after telling an employee that they need to resign. An employee who is given no choice but to resign may be eligible to bring, for example, an unfair dismissal claim, even though they were the one who technically quit their job. The hard part in these legal stoushes is usually trying to figure out whether the employee resigned voluntarily, or whether they were given no real choice but to resign — “You can’t fire me, I quit!”
(To find out when you can fire someone without notice, read our article.)
Did they jump or were they pushed overboard?
So how can you untangle who said what and what they meant in the events leading up to a disputed resignation? There is a case where an employee and their manager had an angry discussion at work just prior to Christmas, which left the manager thinking that the employee had quit, while the employee thought she had been fired.
The employee turned up to work the next day, but was given no work to do as the manager told her that he thought she had resigned. It was later found by the Fair Work Commission that the employee could not have intended to quit as she had returned to work, and accordingly that she could bring an unfair dismissal claim.
But what if someone quits in the course of a disciplinary investigation?
In another case, one employee found themselves suspended from work and losing their security clearance after being accused of leaking information to the media while working for the Federal government. They felt that they had no choice but to quit, and did so, but then brought an unfair dismissal application. The Fair Work Commission looked at their circumstances closely, and found that they were not forced to resign but instead chose to do so voluntarily.
Unsuccessful constructive dismissal claims have also been brought by employees who quit their jobs after the imposition of a performance management plan, or after their employer failed to pay their wages on time — thankfully, it seems that merely being unhappy with your job is not equivalent to being forced to leave.
Lessons for employers
What are the main takeaways for employers from these examples?
- If there is any doubt as to whether or not someone has resigned, clarify it with them by asking them to confirm it — preferably in writing. Verbal resignations sometimes cause confusion over when, how, and if a resignation has actually taken place.
- Beware the temptation to take shortcuts when terminating someone’s employment. Although there is nothing inherently wrong with having an informal chat with someone to see if an amicable and mutually agreeable exit can be arranged, procedural fairness must be observed. If this isn’t possible, it is not a solution to simply give the employee no choice but to resign.
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Aaron Goonrey is a Partner and Luke Scandrett is a Lawyer in Lander & Rogers’ Workplace Relations & Safety practice. Aaron can be contacted at agoonrey@landers.com.au
Constructive dismissal/forced resignation – both are or can be a minefield of hearsay, opinion and, inevitably, high emotion and stress which can make the situation unresolvable – except through litigation. In short, either must be provable and therein lies the problem for the employee, in terms of time, money and future employability. Speaking as an individual, “constructive” dismissal is a contradiction in terms and a “forced” resignation is symptomatic of a negative work culture – neither will shed a good light on an employer and its HR policies, procedures and practice.