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As employment lawyers, we are always concerned when we see situations where employees are being placed in a position where they really have no choice but to resign from their employment. Such conduct by an employer can lead to the employee having reasonable prospects of a successful unfair dismissal claim.

I’m Hamish Procter from Aitken Legal, and in this video, I am going to talk about an unfair dismissal decision of the Fair Work Commission, which dealt with a case of forced resignation.

In the decision of Trail v O’Brien Group Australia, the Fair Work Commission determined that an employee who had tendered a written resignation to her employer, was in fact unfairly dismissed. The employee in this case was awarded 14 weeks’ pay as compensation for her unfair dismissal.

The employee resigned after receiving two written warnings over a period of 7 days. The employee claimed that she had never had disciplinary action taken against her before those two warnings, and that the employer failed to follow its policies and procedure in delivering the warnings.

In explaining the law on forced resignations, the Commissioner explained that in circumstances where an employee has resigned, the employee must demonstrate to the Commission that the circumstances surrounding their resignation are consistent with the “meaning of dismissed” under section 386 of the Fair Work Act. Those provisions state that a person has been dismissed if the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by the employer.

In this instance, the Commission was satisfied that the employer “engaged in the conduct that it did with an intention to bring the employment relationship to an end, or that it would have that probable result.” The Commissioner also accepted that the employee had “no effective or real choice but to resign her employment” and was “forced to do so because of a course of conduct engaged in by the employer”.

In support of that view the Commissioner noted (amongst other things) that the evidence demonstrated:

- That the employer clearly had an “eye on the future” which did not involve the employee; and
- The employee’s manager had “deliberately” ostracised the employee from important emails.

In this case, the Commission “accepted [the employee’s] concerns were real, and termination of her employment would likely be realised given the manner in which she had been treated in the prior months, weeks and days”.

This decision serves as a great reminder to employers that if you place an employee in a position where they have no choice but to resign, then that employee may still be able to make an unfair dismissal claim with prospects of success.

Employer’s experiencing difficulties with an employee, and who want to know their rights and obligations relevant to managing that employee, should contact one of the experienced employment lawyers at Aitken Legal.

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