Did You Intend to Resign, or Were You Forced to Resign?
Voluntary resignation versus ‘forced resignation’
As we all know there are a multitude of reasons why employees resign from their jobs. While some employees choose to quit their jobs voluntarily, it is becoming more common that employees resign because they feel that they have been forced to do so as a result of the employer’s improper conduct. These scenarios are commonly termed “forced resignations” or “constructive dismissals.”
Determining whether or not a resignation was forced is not always an easy task.
It is common that employees file an application for an unfair dismissal remedy because of unfair treatment or inter-relational conflicts at work that ultimately led them to resign from their employment. The relevant question therefore becomes, did the employer make them do it?
Case on Point
The recent Fair Work Commission case of Mr John Boswell v 208 South Terrace Management T/A Sage Hotel/Grand Chifley  FWC 135 (‘Boswell’), examined this question. In that case, Mr Boswell asserted that he resigned under duress as a result of an untenable working relationship between a Philippine new manager and himself. The new manager imposed a new obligation on maintenance workers, including Mr Boswell, by requiring them to record their work and the time taken on each task. Meanwhile, the new manager introduced a new method of organising priorities that totally differed from the previous system. Separate to this, Mr Boswell had complained to his employer on many occasions that he was belittled and discriminated against by this manager. He alleged that his boss failed to appropriately investigate these complaints. As a consequence, Mr Boswell tendered his resignation letter.
The primary issue which arose inthe Boswell’s case was whether Mr Boswell was forced to resign because of the conduct of his employer, in accordance with s 386(1)(b) of the FW Act or not. Ultimately, Deputy President Anderson dismissed Mr Boswell’s unfair dismissal application on the basis that the operational measures introduced by the new manager were within the legitimate operational discretion of the employer and were not excessive or onerous obligations for its workers. Deputy President Anderson held that while certain actions of the new manager were certainly uncalled for, the employer did not engage in any conduct with the intention of bringing Mr Boswell’s employment to an end. Mr. Boswell’s resignation was not a heat of the moment decision, nor was it ill-considered or unconsidered. To the contrary, Mr Boswell had exercised his effective choice to resign.
So when will it be a ‘forced resignation’?
- For the purposes ofs 386(1)(b) of the FW Act, a resignation will be forced if the employee has no real choice but to resign;
- the employee can prove that they did not resign voluntarily;
- the employee can prove that the employer forced their resignation;
- the employer took steps with the intention of bringing the employee’s employment to an end.
As was commented by Deputy President in the Boswell case, the word “forced” is not defined in the FW Act. Despite this, force typically suggests some form of coercion or compulsion. To force is to cause or produce by effort some end result.
Some common scenarios where forced resignation arguments are raised include:
- the employer failed to provide a safe workplace;
- the employer encouraged the employee to resign;
- the employer hindered the employee’s ability to effectively do their job; and
- the employer failed to prevent the bullying, harassment or discrimination of the employee.
Whether or not these scenarios will amount to a forced resignation will depend on the specific circumstances of the case.
How can we help?
It is not always easy to know whether the particular circumstances of an employment dispute will give rise to grounds for a forced resignation argument. The best course of action is to seek advice from an Employment Lawyer. If you are an employee who feels that you have been left with no choice but to quit your job, you should seek advice before you take that final step.
If you are an employer defending an application for unfair dismissal remedy on the basis of a forced resignation claim, you should seek advice from an Employment Lawyer who can accurately advise you as to whether or not the claim has any merit.