What is constructive dismissal?
Constructive dismissal is when an employee resigns but is forced to do so because of the employer's conduct, and the law treats it as a dismissal.
Constructive dismissal is when an employee resigns, but the resignation is forced by the conduct of the employer. Examples include making working conditions intolerable, demoting someone without cause, drastically cutting pay or hours, or making clear the employee has no real choice but to leave.
Under section 386(1)(b) of the Fair Work Act 2009, a person is dismissed if they resign because they were forced to do so by their employer's conduct. This means a forced resignation can be challenged as an unfair dismissal or under the general protections, just like a sacking.
Key facts
- •It is a resignation that the employer's conduct effectively forced
- •It is treated as a dismissal under section 386(1)(b) of the Fair Work Act 2009
- •Examples include intolerable conditions, unjustified demotions, and cutting pay
- •An unfair dismissal application must usually be lodged within 21 days
- •The employee generally must show the employer left them no real choice but to resign
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Unfair Dismissal CheckerFrequently asked questions
I resigned because of how I was treated — can I still claim?
Possibly. If your employer's conduct forced you to resign, the law may treat it as a dismissal under section 386(1)(b). You generally have 21 days from the date your employment ended to lodge an unfair dismissal application.
Does a single bad day count as constructive dismissal?
Usually not. The Fair Work Commission looks at whether the employer's conduct genuinely left you no reasonable choice but to resign. A one-off disagreement is unlikely to meet that threshold.
FairWork Mate is an independent commercial service. We are not affiliated with, endorsed by, or associated with the Fair Work Ombudsman, the Fair Work Commission, or any Australian Government agency. Content is general information and estimates only — not legal, financial, or tax advice. Always verify with the Fair Work Ombudsman (13 13 94) or a qualified professional.