These concluding remarks in an unfair dismissal case in the Fair Work Commission are a good summary of the legal issues the Commission pays heed to when determining whether the resignation of an employee can be regarded as a dismissal.
“Conclusion
[67] I am satisfied, based on all the evidence before the Commission, whether viewed individually or collectively, that:
(a) there was no action on the part of Toll that was the principal contributing factor which resulted, directly or consequentially, in the termination of Mr Harrison’s employment;
(b) Mr Harrison’s employment was not terminated on Toll’s initiative;
(c) Mr Harrison’s resignation was not the probable result of Toll’s conduct or any course
of conduct that left him with no effective or real choice but to resign;
(d) Toll did not engage in any conduct, or course of conduct, with the intention of bringing
Mr Harrison’s employment to an end; and
(e) Mr Harrison was not forced to resign from his employment with Toll because of any conduct, or any course of conduct, engaged in by Toll.
[68] It follows that Mr Harrison was not dismissed. Accordingly, the respondents’ jurisdictional objection is upheld and Mr Harrison’s general protections application is dismissed.”
Harrison v Toll Holdings Pty Ltd & Greg Schmerl [2025] FWC 2667 delivered 18 November 2025 per Saunders DP