A common jurisdictional objection within unfair dismissal and general protections claims are assertions by employers that the employee bringing the claim has not been dismissed, but rather has resigned or abandoned their employment on their own accord.
The Fair Work Act 2009 (Cth) relevantly provides:
Meaning of dismissed
(1) A person has been dismissed if:
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
By definition, a resignation is where an employee voluntarily, and on their own initiative, terminates their employment. Per Australian Hearing v Peary  AIRCFB 680, in the case an employee seeks to assert that they have been forced to resign, it is for the employee to establish that they did not resign voluntarily.
The leading case as to whether a resignation will be considered forced is Mohazab v Dick Smith Electronics Pty Ltd (No 2)  IRCA 645. Mr Mohazab had worked for Dick Smith as a Quality Control Manager, following stock going missing (which was later located). Mr Mohazab was interviewed by security staff and the Personnel Manager of Dick Smith. Within this interview, Mr Mohazab was provided with an option to resign or face police investigation. Mr Mohazab resigned. In finding Mr Mohazab had been constructively dismissed, their Honours found:
When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee’s initiative.
More recently, this approach can be found in Hou v Micro Techno Pty Ltd  FWC 616, Ms Hou worked as a retail/repair worker within a shopping centre at a kiosk operated by Micro Techno. Relevantly, Ms Hou and other staff obtained rostered shifts by participating in a ‘WeChat’ group, where the owner of Micro Techno, Mr Huang, would advise staff of available shifts, and staff would advise if they could work such.
In her final weeks of work, Ms Hou asserted she was subject to bullying behaviour by Mr Huang following a customer complaint, and then further following her raising concerns around significant underpayments. Following her raising concerns, Ms Hou asserts she was removed from the WeChat group, and was therefore unable to obtain further shifts. Ms Hou then wrote to Mr Huang and resigned from her employment. Deputy President Anderson relevantly found:
I conclude that Mr Huang’s conduct in removing Ms Hou from the WeChat (Logan) group on or about 22 July 2020 was a dismissal at the employer’s initiative within the meaning of section 386(1)(a) of the FW Act.
It is important for employers to assess and be weary of the effect decisions or ultimatums may have on employees. Even where employers have made a decision to terminate an employee but wish to give the employee the option of resigning, employers need note that such may still be viewed as a termination. If by conduct, or omission, an employee is left to perceive that they will have no option but to resign, an employee may be open to pursuing an unfair dismissal, general protections, discrimination, or other claim.
Prior to making decisions which will impact employees, it is always recommended that you seek appropriate legal advice. Saines Legal is a full-service employment law firm and are here should you require advice. Do not hesitate to contact us via email@example.com or (07) 3324 1055, to organise a consultation.
The contents of this article are general in nature and is for information purposes only. The content of this article does not constitute legal advice and should not be used as such. Should you require assistance with a specific legal matter, it is recommended that you seek appropriate advice.
Authors Bradley Ellacott (Lawyer) and Nigel Saines (Principal)