When does a resignation count as a dismissal?

The difficulties of mounting an argument in an unfair dismissal case that a resignation by an employee was in fact a dismissal are significant.

“Consideration

Mr Bailey was not forced to resign from his employment. The fact that Mr Bailey may have felt that he had no other option but to resign, and felt overwhelmed, are subjective matters. Whether there was a forced resignation is to be assessed objectively. Mr Breed did not tell Mr Bailey that he had to resign; rather, Mr Breed said that he had the right to dismiss Mr Bailey summarily. It was then that Mr Bailey told Mr Breed to ‘get fucked’ and said that he would ‘quit’. Mr Bailey chose to resign. It was a rational choice. It resulted in the company’s waiver of Mr Bailey’s $500 debt, the avoidance of disciplinary action, and a waiver of any right the company had to bring proceedings against him. Mr Bailey agreed to end his employment on this basis. I accept that Mr Bailey wanted time more to think about the proposal, and to obtain advice, and that the company was not prepared to afford him further time. But Mr Bailey also wanted the benefits associated with the company’s proposal. This was not a forced resignation, nor was it a termination on the employer’s initiative. Mr Bailey was therefore not dismissed within the meaning of s 386. The company’s jurisdictional objection is upheld.”

Bailey v Dynamic Glass Pty Ltd (2021) FWC 2027 delivered 14 April 2021 per Colman DP