Unfair dismissal; what is a constructive dismissal?

This extract from an unfair dismissal decision of the Fair Work Commission is a useful summary of the way in which the Commission goes about determining whether a resignation was a constructive dismissal.

“Despite the interpersonal issues and mediocre effort from management which lead to the Applicant’s decision to resign, I do not agree that the conduct of the Respondent left the Applicant in a position where resignation was the only option nor that the conduct of the Respondent would have that probable result. On the material before me, it is clear the Applicant was unhappy with the operational decisions implemented by the Respondent and was further frustrated when the Respondent’s management was unable to adequately address her frustrations.

The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one. 8 The Applicant was clearly unhappy in the workplace due to the Respondent’s deficient response to her queries and issues with the operational requirements of the business more broadly. However, I am not satisfied that the conduct of the Respondent could be interpreted as conduct which would leave her with no real choice but to resign. It is not uncommon for a resignation to arise in circumstances where an employee is experiencing interpersonal issues with management and overall dissatisfaction with the decisions of management. It is understandable that the Applicant elected to resign, but I do not agree that her decision to resign was forced by the conduct of the Respondent.

After weighing the evidence provided, I cannot find the Respondent acted in a manner which left the Applicant with no alternative but to resign from her employment with the Respondent nor would its conduct.”

Ryan v The Australian Tourist Restaurants U/T (2023) FWC 84 delivered 13 January 2023 per Schneider C