21 August 2025
By Joseph Kelly, Kelly Workplace Lawyers
I Think My Boss Is Pushing Me Out – What Can I Do?
This sounds like ‘constructive dismissal’.
A constructive dismissal occurs when an employee resigns, but is found to have done so because of conduct, or a course of conduct, engaged in by their employer, effectively leaving them with no real choice but to resign. Under the Fair Work Act 2009 (Cth), a person is considered dismissed if they resign due to being forced by the employer’s conduct.
Cases such as Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli and Enkuzis v Luna Mines Services clarify that constructive dismissal encompasses resignations that are effectively forced due to the employer’s conduct. The test is whether the employer’s actions left the employee with no effective or real choice but to resign, or whether termination was the probable result of the employer’s conduct.
So what sort of conduct would lead to a constructive dismissal?
The analysis must be objective and consider all circumstances, including the conduct of both parties.
The concept has been further explained in decisions such as City of Sydney RSL & Community Club Ltd v Balgowan, which held that an employer repudiating the contract, such as by proposing significant changes to employment conditions, can amount to constructive dismissal if the employee resigns in response. Mrs Renee Passmore v Mrs Sandra Clive & The Trustee for The CBC Lawyers Unit Trust highlights the high bar for proving constructive dismissal, requiring that the employer’s conduct left the employee with no choice but to resign.
Other cases such as Bellam v AFG Corp Transport Pty Ltd and Mr Scott Spearpoint v East Coast Freight Specialists affirms that the onus is on the employee to prove that their resignation was not voluntary and that the line between a forced resignation and one at the employee’s own initiative is a narrow one, requiring careful and rigorous analysis.
So what does all this mean?
Constructive dismissal under Australian law is when an employee’s resignation is effectively forced by their employer’s conduct, and is treated as an unfair dismissal under the Fair Work Act 2009 (Cth). Proving a constructive dismissal in not easy – there is a high threshold to meet and it requires an objective assessment of whether the resignation was truly voluntary or compelled by the employer’s actions.
If in doubt, contact KWL and we can let you know what your legal rights are.
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