What is constructive dismissal in Australia?

Constructive dismissal (also called forced dismissal) occurs when an employer's conduct is so unreasonable that you have no real choice but to resign. Under s386(1)(b) of the Fair Work Act 2009 (Cth), a resignation is legally treated as a dismissal if it was forced by the employer's conduct. Common triggers include involuntary demotion, pay cuts, slashed hours, bullying, an unsafe workplace, or an ultimatum to resign or be sacked.

How long do I have to make a constructive dismissal claim in Australia?

You have 21 calendar days from the date your resignation took effect to lodge an application with the Fair Work Commission. The clock starts from the day you left. This deadline is strict — the Commission only grants extensions in exceptional circumstances. If your deadline is close, act immediately at fwc.gov.au or call 1300 799 675.

What is the difference between a constructive dismissal claim and an unfair dismissal claim?

Unfair dismissal (Part 3-2 of the Fair Work Act) covers both direct dismissals and forced resignations under s386(1)(b). General protections (Part 3-1) is a separate pathway if the employer's conduct also involved adverse action against a workplace right — for example, retaliating because you made a complaint or exercised an entitlement. Both have the same 21-day deadline. Some circumstances may support both types of claim.

Do I need to raise the issue with my employer before resigning?

The Fair Work Commission generally expects employees to give their employer a reasonable opportunity to fix the problem before resigning. If you resign without raising the issue, you may need to explain why — for example, if the situation was intolerable, if you were given an ultimatum, or if raising it would have been futile. Raising the issue in writing before you resign creates an important record.

Can I claim constructive dismissal if I was given an ultimatum to resign?

Yes. Being told to resign or be sacked is the clearest form of forced resignation. The Fair Work Commission treats a resignation under ultimatum as strong evidence that the employee had no real choice. You should lodge your application with the Commission within 21 days of the date you resigned.

Constructive Dismissal Checker — Were You Forced to Resign? (Australia)

About this tool. Under s386(1)(b) of the Fair Work Act 2009, a resignation can be legally treated as a dismissal if your employer's conduct gave you no real choice but to leave. This is called a forced or constructive dismissal. You have 21 calendar days from the date of resignation to lodge a claim with the Fair Work Commission. This tool gives general information only — it is not legal advice.

1. Did you resign from your job?

This tool is specifically for forced resignations under s386(1)(b). If you were directly dismissed (explicitly told your job was ending), use the Unfair Dismissal Checker instead.

2. What triggered the resignation?

Select all that apply. Tick every factor that made staying in the job untenable.

I was demoted (without my agreement) to a lesser role or titleMy pay was cut without my consentMy hours were significantly reduced without my agreementI was subject to bullying, harassment, or a genuinely unsafe work environmentI was given an ultimatum — resign or be sackedThe employer's conduct was a fundamental breach of my employment contract (e.g. stripped my duties, repudiated the contract)

3. Did you raise the issue with your employer?

The Fair Work Commission generally expects employees to give the employer a chance to fix things before resigning. Not doing so can weaken a claim — though there are exceptions (e.g. an ultimatum or intolerable conditions).

4. How many calendar days ago did you resign?

The strict 21-day deadline to lodge with the Fair Work Commission runs from the date your resignation took effect. Count from that date to today.

Days since resignation

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Send your details to Liquid Employment Lawyers

Liquid Employment Lawyers is a paid legal service and our referral partner, not free Fair Work advice. FairWork Mate may receive a referral fee from Liquid Legal. Tell them what has happened and a member of their team will call you back. For free general guidance, use our tools or call the Fair Work Ombudsman on 13 13 94.

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