Constructive Dismissal Australia — When You're Forced to Resign

Constructive dismissal occurs when an employee resigns from their position, but the resignation wasn't truly voluntary — it was forced by the conduct of the employer. In legal terms, the employee was left with no real choice but to resign. Under the Fair Work Act 2009, a person is taken to have been 'dismissed' if they resigned but were forced to do so because of conduct or a course of conduct engaged in by the employer.

Effectively, that even though the employee technically resigned, the law treats it as a termination initiated by the employer. This is significant because it opens the door to unfair dismissal claims, general protections claims, and potentially other remedies.

Constructive dismissal is not a standalone legal claim in Australia — rather, it's a factual finding that a resignation was in substance a dismissal, which then allows the employee to access dismissal-related protections. The Fair Work Commission (FWC) examines whether the employer's conduct was such that a reasonable person in the employee's position would have felt they had no option but to resign (and yes, this applies to casuals too).

There are many scenarios that can amount to constructive dismissal. A significant and unilateral reduction in pay or hours — such as cutting an employee's salary by 20% without consent — can constitute constructive dismissal. Demotion or removal of key responsibilities, particularly without a valid reason, is another common trigger.

Workplace bullying, harassment, or creating a hostile work environment that the employer fails to address after being made aware can force an employee out. Unreasonable changes to work location — for example, transferring an employee from Sydney to a remote rural office with no legitimate business reason.

Breaching a fundamental term of the employment contract, such as changing the employee's role entirely or withdrawing contractual benefits. Failing to provide a safe working environment under work health and safety obligations.

Deliberately excluding an employee from meetings, communications, or decision-making to marginalise them.

Issuing unwarranted warnings or implementing performance improvement plans designed to pressure the employee to resign rather than genuinely improve performance.

Proving constructive dismissal requires demonstrating that the employer's conduct was sufficiently serious to justify the resignation, and that the resignation was a direct result of that conduct. The burden of proof is on the employee. Key evidence includes: contemporaneous documentation such as emails, text messages, and written correspondence showing the employer's conduct.

Diary entries or notes recording incidents with dates, times, and details. Any formal complaints or grievances you lodged with management or HR.

Medical evidence if the employer's conduct affected your health — GP records, psychologist reports, or stress leave certificates. Witness statements from colleagues who observed the conduct. Records of any changes to your role, pay, hours, or conditions. It's important to show that you raised concerns with your employer before resigning and gave them an opportunity to rectify the situation.

The FWC will examine whether a reasonable person in the employee's circumstances would have felt compelled to resign. A hasty resignation without attempting to resolve the issue may weaken your claim.

If the FWC accepts that your resignation was in fact a constructive dismissal, you can pursue either an unfair dismissal claim or a general protections claim, depending on the circumstances. An unfair dismissal claim argues that the dismissal was harsh, unjust, or unreasonable. You must have completed the minimum employment period (6 months, or 12 months for small business employers) and earn below the high-income threshold ($183,100 in 2025-26) or be covered by a modern award or enterprise agreement.

A general protections claim argues that the constructive dismissal was because you exercised, or proposed to exercise, a workplace right — such as making a complaint, taking leave, or raising a safety concern. There is no minimum employment period or income cap for general protections claims, making them accessible to a wider range of employees.

However, general protections claims require you to prove that a prohibited reason (such as exercising a workplace right or discrimination) was a substantial and operative reason for the conduct that forced your resignation.

Strict time limits apply to constructive dismissal claims, and missing these deadlines can mean losing your right to a remedy entirely. For unfair dismissal claims, you must file your application with the FWC within 21 calendar days of the dismissal taking effect — in constructive dismissal cases, this is usually the date your resignation took effect. For general protections dismissal claims, the deadline is also 21 calendar days.

The FWC can grant an extension of time in exceptional circumstances, but this is discretionary and not guaranteed. You will need to show that there were exceptional circumstances beyond your control, that you became aware of the deadline as soon as reasonably possible, and that you took action to file as soon as practicable after becoming aware.

It's strongly recommended that you seek legal advice as soon as you resign or begin contemplating resignation due to your employer's conduct. Community legal centres, unions, and employment lawyers can advise on the strength of your case and ensure you file within time.

If you believe your employer's conduct may be forcing you towards resignation, start documenting everything well before you actually resign. Keep a detailed diary of incidents including dates, times, locations, what was said or done, and any witnesses present. Save copies of relevant emails, messages, and documents — forward them to a personal email address if necessary (but be mindful of confidentiality obligations).

Write formal letters or emails to your manager or HR department outlining your concerns and requesting that the conduct stop — this creates a paper trail showing you raised the issue and gave the employer an opportunity to fix it. If you're experiencing health impacts, see your GP and obtain medical certificates or referrals.

If you've a union, contact your delegate or organiser for advice and support. Consider obtaining legal advice before resigning — an employment lawyer can help you assess whether you've a viable constructive dismissal claim and guide you on the best steps to protect your position.

The strongest constructive dismissal cases involve clear documentation and evidence that the employee tried to resolve the issues before resigning.