Whether your situation qualifies is worth a short call. Call 1800 UNFAIR (1800 863 247). The first call is free, with no obligation.
What constructive dismissal is
Normally, if you resign, you have not been dismissed. But there is an important exception. You are treated as having been dismissed if you resigned because you were forced to do so by your employer's conduct, or a course of conduct.
In plain terms: if your employer behaved in a way that left a reasonable person with no real choice but to quit, the resignation can count as a dismissal, and the ordinary unfair dismissal rules can apply.
What can amount to being forced out
Situations people have argued successfully include:
- a serious cut to your pay or hours that you never agreed to
- a demotion you did not agree to and that the employer had no right to impose
- being told to "resign or be sacked"
- sustained bullying the employer knew about and did nothing to stop
- a fundamental change to your role that effectively tears up your agreement
The test looks at whether the employer's conduct was really the cause of your resignation.
What usually does not work
Being straight with you matters here, because this is a demanding test:
- resigning because you were unhappy, stressed, or did not get on with your manager
- quitting in the heat of an argument and regretting it
- resigning during a fair performance process, unless that process was a sham
The bar is high, and employers know it. That is exactly why, if you are still employed and thinking about resigning because things have become unbearable, it is worth talking to someone before you quit, not after. Once you resign, your position is weaker.
The 21 day deadline
If a constructive dismissal is made out, the dismissal took effect when your resignation took effect, and you generally have 21 days from that date to lodge. The Commission rarely extends it.
There may be a second option
Sometimes the same conduct that forces a resignation is also adverse action, for example if you were pushed out after making a complaint or asserting an entitlement. That can be a general protections claim instead, and it may be stronger. See adverse action and general protections, and give us a call so we can work out which fits.
Get a straight answer before you act
Whether you were genuinely forced out, or whether resigning has weakened your position, is hard to judge from the inside while you are under pressure. A short call will tell you where you stand.
Call 1800 UNFAIR (1800 863 247). The first call is free and there is no obligation. Monday to Friday 9am to 9pm, weekends 9am to 5pm.
We are paid agents, not lawyers. We represent employees at the Fair Work Commission and we will give you an honest read on your options.