By The KW Lawyers Team
In Australia, a forced resignation is sometimes referred to as a ‘constructive dismissal’. This distinction is given when you resign, but the law treats it as your employer sacking you because a serious breach of your contract left you no reasonable choice but to go (Fair Work Commission).
Proving that the resignation was involuntary, however, is often far from black and white. In this article, we will explain this in more detail, as well as cover what it means to prove a forced resignation in 2026.
What is constructive dismissal, and why does the law treat your resignation as a sacking?
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.
The legal question typically comes down to whether the resignation was truly voluntary, or whether the employment ended at the employer’s initiative. In an unfair dismissal matter, the Fair Work Commission considers whether the employment ended “at the initiative of the employer” rather than through a voluntary resignation (Fair Work Commission).
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.
However, that does not mean every pressured resignation will amount to constructive dismissal. An employee generally needs to show that the employer’s conduct was serious enough that leaving was not a genuine or realistic choice.
When can bad treatment cross the line into constructive dismissal?
Not every difficult workplace situation will amount to constructive dismissal. A person may be unhappy with their job, frustrated with management, or disagree with decisions made by their employer without those circumstances necessarily meaning they were forced to leave.
Of course, the circumstances and severity of the conduct are of great importance. Examples that may be relevant can include:
● A significant reduction in pay, hours, status, or responsibilities without agreement.
● A demotion or major change to duties that substantially alters the role the employee agreed to perform.
● Ongoing bullying, harassment, or hostile behaviour where the conduct is serious and the employer fails to properly address complaints or take reasonable steps to resolve the issue.
● Serious workplace safety concerns that are raised but ignored.
● A pattern of unreasonable conduct that, when viewed as a whole, makes continuing in the role unrealistic.
On the other hand, not every disagreement or negative workplace experience will meet this threshold. For example, a reasonable performance review, a legitimate management decision, or a personality clash may not be enough on its own. However, the surrounding circumstances also hold significant weight, as the same type of event may be viewed differently if it forms part of a broader pattern of unreasonable, harmful, or unlawful conduct.
Is there a time requirement to file an unfair dismissal claim?
A constructive dismissal is not separate to, but rather a part of an unfair dismissal claim. As such, it must be filed within Fair Work’s specified timeline for lodgment.
As it currently stands, all claims must be filed within 21 days (Source: Fair Work Commission). While “The Commission may allow a further period for lodgment in exceptional circumstances.”, Fair Work has themselves noted that the circumstances would need to meet the right criteria to be given the distinction of ‘exceptional’. You can head here to the Fair Work extension of time for lodging an application, or contact our legal offices to discuss an unfair dismissal claim with an accredited specialist.
Here is another important caveat; the 21 days for lodgment doesn’t include the date in which the dismissal took effect. In practical terms, this means that day one of the 21 day period begins on the day directly following the dismissal. If the final day of this period happens to fall on a public holiday (such as Easter Monday or Australia Day), the application can be made electronically.
Are there any practical examples related to a constructive dismissal in Australia?
If we assess what sort of conduct might lead to a constructive dismissal, there are a range of examples to draw from.
The concept has been 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 also 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 requires both careful and rigorous analysis.
Why does the employee usually need to prove the resignation was forced?
Typically, a resignation occurs when an employee voluntarily decides to part ways with their employer. However, if an employee argues that their resignation was forced and wishes to pursue an unfair dismissal claim, they generally need to show why the resignation was not a genuinely voluntary decision.
At this time, there are two key questions that need to be answered:
- Was the employer’s conduct serious enough to undermine the employment relationship?
- Was that conduct the reason the employee resigned?
It is not enough to show that something went wrong at work or that the employee was unhappy. The employee generally needs to demonstrate that the employer’s actions were the reason they felt they had no reasonable alternative but to leave.
For example, a resignation may be difficult to challenge if the employee leaves shortly after a workplace dispute but there is little evidence connecting the dispute to the decision to resign. On the other hand, written objections, complaints, and records showing that the employee raised concerns before leaving may help to demonstrate why the resignation occurred.
The distinction between a resignation that was genuinely voluntary and one that was effectively forced can be difficult to establish. The Fair Work Commission has recognised that the line must be drawn carefully, because not every workplace problem or difficult situation will amount to a dismissal.
How do you prove you were forced to resign?
Proving a constructive dismissal is 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.
The best course of action, therefore, is to contact KWL and we can let you know what your legal rights are. From the first consultation, we will provide you with sound legal advice, guidance, and assistance with any documentation should you choose to move forward with a claim.
Get Legal Advice for an Unfair Dismissal Claim in Melbourne or Brisbane
Have you been unfairly dismissed or forced to resign due to the behaviour of your employer? If you think the dismissal was harsh, unjust, unreasonable, or due to a forced resignation, Kelly Workplace Lawyers is here to help.
If you believe your termination breached Fair Work regulations, we’re ready to fight for your rights. With over a decade of experience protecting workers, we’ve helped countless people successfully make their way through unfair dismissal claims.
Contact us today to book a consultation.
Frequently Asked Questions
What is constructive dismissal?
A constructive dismissal occurs when an employee resigns because their employer’s conduct leaves them with no real choice but to do so. Although the employee resigns, the law may treat the resignation as a dismissal if the requirements under the Fair Work Act are met.
Does every forced resignation amount to constructive dismissal?
No. A resignation will not automatically be treated as a constructive dismissal simply because an employee felt pressured to leave. The employee generally needs to show that the employer’s conduct was serious enough that they had no real or realistic choice but to resign.
Can a single workplace issue be enough to prove constructive dismissal?
It depends on the circumstances. While a single serious incident may be relevant, the Fair Work Commission also considers the overall course of conduct. A pattern of unreasonable, harmful, or unlawful behaviour may carry more weight than an isolated disagreement or workplace conflict.
What happens if I miss the 21-day deadline to lodge my unfair dismissal claim?
Constructive dismissal claims generally need to be lodged within 21 days of the dismissal taking effect. Although the Fair Work Commission may allow a further period for lodgment in exceptional circumstances, extensions are only granted where the relevant criteria are met.
Will my claim succeed if I was treated unfairly at work?
Not necessarily. Being unhappy at work or disagreeing with your employer’s decisions will not, on its own, amount to constructive dismissal. The key question is whether the employer’s conduct was serious enough that you had no reasonable alternative but to resign.
Prepared by KW Lawyers (Melbourne & Brisbane). This article is general information about Australian employment law, not legal advice, and does not create a lawyer–client relationship. For advice on your situation, speak with a qualified employment lawyer.