Forced to resign: when quitting counts as a dismissal

Why it matters whether you were dismissed

An unfair dismissal claim to the Fair Work Commission starts with one question: were you dismissed? If you resigned, the usual answer is no, and the Commission cannot look at whether your treatment was fair.

The Fair Work Act 2009 (Cth) recognises two kinds of dismissal in s 386(1). The first is where your employment was ended on your employer's initiative. The second is where you resigned, but were forced to do so because of conduct, or a course of conduct, engaged in by your employer. The second kind is often called constructive dismissal, although the Act does not use that phrase.

The same definition of dismissal applies to a general protections dismissal claim, so a forced resignation can support that claim too.

The test for a forced resignation

The leading statement of the test is in Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, a Full Bench decision. The Commission asks whether the employer engaged in the conduct with the intention of bringing the employment to an end, or whether ending the employment was the probable result of its conduct, so that the employee had no effective or real choice but to resign.

The employer's conduct is the essential element. It is not enough that you were unhappy, or that resigning was a reasonable thing to do. The question is judged objectively, looking at what the employer actually did.

Conduct that has been argued to force a resignation includes failing to pay wages, a serious unilateral pay cut or demotion, a large change to hours or work location, and leaving an employee in an unsafe workplace. Each case turns on its own facts, and none of these is automatically enough.

Two unpaid-wages cases, two results

In Hobbs v Achilleus Taxation Pty Ltd [2012] FWA 2907, an undergraduate accountant at a small accounting practice found his pay became irregular. Between 20 July and 2 November 2011 he earned $11,647.75 but was paid only $3,570. He chased it by email, text and phone without a real answer, then gave notice and a letter of demand.

Commissioner Deegan found it was "clear that the applicant was forced to resign by the conduct engaged in by his employer". The dismissal was unfair, and $14,241 compensation was ordered. A Full Bench refused the employer permission to appeal ([2012] FWAFB 5679).

In Bruce v Fingal Glen Pty Ltd [2013] FWC 3941, a part-time hotel receptionist resigned because her wages were often paid late, commonly by one to two days, and no superannuation had been paid. The Commission found she was not dismissed. A Full Bench refused her permission to appeal (Appeal by Bruce [2013] FWCFB 5279). It accepted that late wages or unpaid superannuation can sometimes force a resignation. But here she had other ways to deal with the problem, and resignation was not objectively the probable result of the employer's conduct.

The difference is one of degree. Being left without most of your pay for months is different from pay arriving a day or two late.

Resignations given in distress

There is a second route. In Tavassoli the Full Bench explained that a resignation may not be legally effective if it was given in the "heat of the moment", or when the employee was in such emotional stress or mental confusion that they could not reasonably be understood to mean it.

If an employer simply acts on a resignation like that, rather than checking with the employee after a reasonable time that they really meant to resign, the employment may be treated as ended on the employer's initiative. This is the first kind of dismissal in s 386(1)(a), and here employer pressure is not a necessary element. An applicant should be clear about which kind of dismissal they say happened, because the tests differ.

What this means for you

If you are thinking of resigning because of how you are being treated, it is worth getting advice before you do. Raising the problem in writing, using a grievance process, or claiming unpaid wages may resolve it, and the Commission can take into account that those options were open to you.

If you have already resigned, keep a record of what your employer did and when. A forced resignation still has to meet the usual rules for an unfair dismissal claim, such as the minimum employment period and, if no award or enterprise agreement covers you, the high income threshold ($190,100 for dismissals from 1 July 2026). Time limits are short: 21 days from the dismissal for a Fair Work claim, or 28 days in the WA state system.