Forced resignation

A forced resignation is when an employee has no real choice but to resign.[1]

The onus is on the employee to prove that they did not resign voluntarily.[2] The employee must prove that the employer forced their resignation.[3]

The employer must take action with the intent to bring the relationship to an end or that has that probable result.[4]

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.[5] The line, however, must be 'closely drawn and rigorously observed'.[6]

An employer is generally able to treat a clear and unambiguous resignation as a resignation.[7]

Where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise.[8] In special circumstances an employer may be required to allow a reasonable period of time to pass.[9] The employer may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.[10]

Forced resignation

Employee notified employer of future intention to resign

Marks v Melbourne Health [2011] FWA 4024 (Ives DP, 24 June 2011).

A letter from the employee to the employer indicating an intention to resign in the future, and sent at a time that the employee was distressed and unwell, was held not to be an effective notice of resignation. Accordingly, the employer's purported acceptance of the resignation was held to constitute a termination of employment at the employer's initiative.

Employer alleged employee resigned – employee continued to present for work

Bender v Raplow Pty Ltd [2011] FWA 3407 (Richards SDP, 8 June 2011).

After an angry discussion between an employee and her manager, the employee believed she had been dismissed and the employer believed the employee had resigned. The employee continued to attend for work afterwards in the belief she had to work out the notice period for her dismissal. The employee was found not to have resigned because she did not demonstrate an intention not to be bound by her contract of employment.

Failure to pay wages

Hobbs v Achilleus Taxation Pty Ltd ATF the Achilleus Taxation Trust; Achilleus Accounting Pty Ltd ATF The Achilleus Accounting Trust [2012] FWA 2907 (Deegan C, 4 April 2012).

Permission to appeal refused [2012] FWAFB 5679 (Drake SDP, Richards SDP, Gregory C, 20 July 2012).

An employee gave notice of his resignation after having been paid under half of what he was owed in wages over a period of 4 months. This was held to be a forced resignation due to the conduct of the employer, and constituted a dismissal by the employer.

NOT a forced resignation

Employee resigned before a disciplinary interview

Love v Alcoa of Australia Limited [2012] FWAFB 6754 (Boulton J, Kaufman SDP, Lee C, 10 August 2012), [(2012) 224 IR 50].

An employee who admitted to police that he had taken company property without authorisation resigned rather than attend a scheduled meeting with his employer about the matter. This was held on the facts to be a voluntary and not a forced resignation.

Resignation of employee while under suspension and investigation

Davidson v Commonwealth [2011] FWA 3610 (Deegan C, 7 June 2011).

Permission to appeal refused [2011] FWAFB 6265 (2011) 213 IR 120.

The resignation of an employee who was barred from access to the workplace, and then suspended from work and subjected to a disciplinary investigation was held not to have been forced by the employer.

Employee negotiating conditions following change in position

Blair v Kim Bainbridge Legal Service Pty Ltd T/as Garden & Green [2011] FWA 2720 (Gooley C, 10 May 2011).

The employee resigned in the belief that her employer required her to accept a lower rate of pay or resign. It was found that the employee had misunderstood the position and acted prematurely because the employer had made no final decision about the matter. The resignation was not therefore forced by the employer's conduct.

Employee on performance management plan

Ashton v Consumer Action Law Centre [2010] FWA 9356 (Bissett C, 20 December 2010).

An employee who resigned after having been placed on supervisory requirements was found not to have been forced by the employer.

Employee resigned prior to a decision being made following a disciplinary process

Pacific National (NSW) Limited v Bell (2008) 175 IR 208.

The employee was subject to a disciplinary procedure relating to falsification of timesheets. The employee acted on the advice of the union and resigned before the employer had come to a decision in relation to the disciplinary matter. This was held on appeal to be a voluntary, not a forced, resignation.

Employee resigned over failure to pay wages on time

Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWC 3941 (O'Callaghan SDP, 19 June 2013).

Permission to appeal refused Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279 (Boulton J, Gooley DP, Hampton C, 2 August 2013).

The employee resigned after the employer repeatedly paid her wages late and failed to pay superannuation. The lateness was commonly one to two days but had been more on occasion. The Commission found that whilst improper the circumstances did not leave the employee with no choice other than to resign. The resignation was not found to be forced by the employer's conduct.