The elements of a constructive unfair dismissal

An employee has lost an unfair dismissal case after he resigned because his employer had required him to work from home but had failed to provide him with a work desk, thus highlighting that a resignation does not constitute a constructive dismissal unless amongst other things the employee has not reasonable choice than to resign.


I reject these contentions. Mr McKean’s argument that he was forced to resign is entirely without merit. The simple fact is that instead of resigning, Mr McKean could have bought a desk. Mr McKean acknowledged that a desk can be purchased very cheaply, and that he could have afforded to buy one. He has since bought a table. Mr McKean believed however that he should not be required to spend his own money to buy a desk on which to work from home. It was a position of principle. However, whether the company should have paid for a desk is beside the point. On any reasonable view, the prospect of having to pay a small sum to buy a desk was not a matter that forced Mr McKean to resign. This fundamental point is sufficient to uphold the jurisdictional objection. I will nevertheless briefly address some of Mr McKean’s contentions.

First, the facts come nowhere near establishing that the company’s requirement for Mr McKean to work from home constituted an occupational health and safety risk, let alone a contravention of s 21 or any other provision of the OHS Act. Secondly, the government Guidelines state that employers should provide ‘technology and furniture’, as examples of ‘adequate resources’ for employees to work from home. In my view, the materials that Ms Booker said the company would provide to Mr McKean to enable him to work from home were indeed ‘adequate resources’, having regard to the nature of his work. The Guidelines do not require the provision of ‘furniture’ as a matter of course. What is required will depend on the circumstances. I also note that the company did provide ‘furniture’ in the form of an adjustable chair. Thirdly, there is no basis to contend that it was ‘not reasonably practicable’ for Mr McKean to work from home for the purpose of s 8 of the Stay at Home Directions. It was reasonably practicable for Mr McKean to buy a desk. Fourthly, because he could have bought a desk, there was no need for him to work from the office, urgent or otherwise. Fifthly, the company did not act unreasonably in refusing Mr McKean’s request to take six weeks of annual leave. This was an excessive period to expect the company to grant as leave, particularly on such little notice. Mr McKean did not propose a shorter period of leave.

It is patently not the case that Mr McKean was left with no reasonable choice but to resign. He freely chose to do so. His letter of resignation made no reference to compulsion, because none existed. Mr McKean had various alternatives. Most obviously, he could have bought a desk. He could have sought to borrow a desk from a friend (he could not borrow one from the company because it had no portable desks). He could have asked for a shorter period of leave. He could also have contacted WorkSafe about his safety concerns. In this regard, Mr McKean said that he decided instead to bring his application in the Fair Work Commission. That was his choice.

I note for completeness that this is not a case where the employee resigned ‘in the heat of the moment’. While such cases can simply involve genuine resignation followed by a change of mind, there is sometimes a question as to whether, objectively, the employee could have been understood as intending to resign. But there is no such question in the present case. A reasonable person would have understood, as Ms Booker and Mr Burnside did, that Mr McKean meant what he said, and intended to resign.

Mr McKean was not forced to resign from his employment because of conduct, or a course of conduct, engaged in by the company. He was not placed in a position where he had no reasonable choice but to resign. Nor was he otherwise dismissed on the employer’s initiative for the purpose of s 386(1). The company’s jurisdictional objection is therefore upheld, and Mr McKean’s application is dismissed.

Finally, I note that Mr McKean repeatedly refused to comply with what was plainly a lawful and reasonable direction from the company that he work from home. In particular, on 17 July 2020, he responded to the direction of Ms Booker and Mr Burnside that he work from home by stating, defiantly, that he understood that this was ‘the company’s position’. In my opinion, the company would have been entitled to dismiss Mr McKean for failing to follow a lawful and reasonable direction. It did not do so. However, had I concluded that the company had dismissed Mr McKean, I would have found that it had a valid reason for the dismissal, and that the dismissal was not harsh, unjust or unreasonable, and therefore not unfair, having regard to all the circumstances and the matters in s 387.”

McKean v Red Energy Pty Ltd (2020) FWC 5688 delivered 26 October 2020 per Colman DP