Unfair dismissal and constructive dismissal

There is a very fine line sometimes between as constructive dismissal (ie a dismissal not at the initiative of the employer) and a resignation. This passage is a good explanation.

“In Doumit v ABB Engineering Construction Pty Ltd, 9 a Full Bench of the Australian Industrial Relations Commission said that the line to distinguish whether conduct leaves an employee with no choice but to resign or results in an employee resigning at their own initiative is a narrow one, but the line must nonetheless be ‘closely drawn and rigorously observed’:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination … Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[125] The onus is on the Applicant to establish that he did not resign voluntarily, proving that the Respondent forced his resignation. 10 I must find that the Respondent took action with the intent or probable result to bring the employment relationship between the Applicant and the Respondent to an end.11”

ZA v The Facelift Group Pty Ltd [2020] FWC 5098 delivered 22 September 2020 per Hunt C