Forced Resignation - The Fine Line Between Resignation and Dismissal, what the Fair Work Commission Says

Forced Resignation, when an employee decides to resign from employment especially during complaints and grievances being made or a performance improvement process, can the Employer still be held liable?

Forced resignation claims otherwise known as constructive dismissal have a very high bar in terms of an employee having to demonstrate that they had no real, effective or meaningful option but to resign.?

Case - Hendrik Johannes Liebenberg v IP Australia [2024] FWC 2933

In the case of Hendrik Johannes Liebenberg v IP Australia [2024] FWC 2933 the conduct and actions of the Employer were examined, that is, was there ambiguity in the actions of the Employer when the employee resigned – was it voluntary or forced?

The employee, had many concerns mainly around two main issues:

• Administrative law and practice concerns
• Intimidation and bullying

Where this case becomes of true interest to HR teams are the actions by the Employer.?

The employee had resigned on 6 February 2024 and instead of accepting the resignation straight away discussed with the employee his concerns (as above) and tried to discuss several alternative options to resignation. Unfortunately, the employee did not take up the offer of any alternatives and took a period of leave, returned his company property and refused to engage in any correspondence with this Employer.?

The Employer attempted on several occasions to seek clarity from the employee about his intentions in regards to his ongoing employment before ultimately filing an unfair dismissal claim. ?The Fair Work Commission decided there was want of jurisdiction for the following reasons:

• The applicant's concerns had been responded to by the respondent on multiple occasions;
• The applicant had other options available to pursue grievances and was aware of those options;
• The respondent did not immediately accept the applicant's resignation and gave opportunities to reconsider;
• The respondent provided multiple opportunities for the applicant to continue employment;
• There was no evidence the respondent engaged in conduct intended to end the employment or that would probably result in resignation; and
• The applicant did not demonstrate he had no real, effective or meaningful option but to resign.

The Employer’s Actions

The Employer’s continued actions to seek clarity on the intention of the employee was a key aspect which the Fair Work Commission considered in a favourable light.

It was also very obvious that the Employer had sought and received legal advice to mitigate their risk and liability.

At the time of the resignation, some might say, the Employer may have been in a better position to simply accept the resignation and move on.? However it is apparent that the Employer was also attempting to mitigate risk and liability with the employee’s other grievances. ?

They had documented the numerous engagements with the employee and gave the employee time to consider his position which the Fair Work Commission favourably held.? As such the unfair dismissal case was rejected.

Forced Resignation

Although constructive dismissal is a high bar to traverse Human Resources should still be aware that any actions that could lead an employee to have no real, effective or meaningful option to resign may have the ability to still file an unfair dismissal or general protections claim.?

Seeking legal advice prior to a resignation in circumstances where there are complaints, grievances and a process involved will prevent unnecessary headaches and mitigate liability and risk.

Our Employment Lawyers at?South Geldard Lawyers?have essential expertise in preventing these issues occurring in the first place and helping with the legal issues when they do occur. Feel free to reach out on 1800 329 448 or via email to?Jonathan Mamaril, Director at?[email protected].? All Employers receive an obligation free consultation.

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Written By

Jonathan Mamaril

Director

Head of Employment Law

South Geldard Lawyers

MCom GDLP LLB BA

[email protected]

07 4936 9100