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Alba Iulia
Sunday, August 16, 2020

Dismissal and resignation

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Charlie Bulos, Solicitor
Charlie Bulos, Solicitor
Charlie Bulos is a Solicitor registered in Victoria. For comments or feedback, email cbulos@imemlawyers.com.

There are workers or employees who find these two words complicated. Resignation could mean dismissal as defined under Section 386 of the Fair Work Act (2009) if this is not voluntary or done at the initiative of employer or if it can be inferred from the action of the employer such as demotion with significant reduction of remuneration and duties or when the worker in effect is no longer connected to the employer. There is an exception to this rule under section 386 (2) of the Act when the employee is under contract for a period of time, etc.

The resignation can either be voluntary or forced or what we call constructive dismissal. In simple terms, the resignation is forced or at the initiative of the employer if, by reason of its conduct or cumulative conduct, the employer causes the resignation of the worker or employee which I will further explain later.

The unfair dismissal claim cannot be heard immediately by Fair Work Commission (FWC) without resolving the jurisdictional issue whether the applicant resigned voluntarily or not.

If the applicant resigned on his/her own free will then the FWC will not have jurisdiction to hear the application.

Commissioner Spencer in Ashley Bell v Pacific National PR 981410 (2008) AIRC 305 found for the Applicant, as follows:

“57 The actions of the Employer, considered overall, were the principal contributing factors which led to the termination of the Applicant’s relationship. Whilst the Applicant resigned prior to the completion of the disciplinary process. The resignation was not at the Applicant’s own initiative. The Applicant was of a clear belief that his employment would be terminated caused by the actions of the Employer. The assumptions of the Applicant were supported by the pressure brought by the Respondent and confirmed by the letter provided by the Respondent.

Furthermore, it is said ‘the direct and indirect conduct of the Employer was such that, on the balance of probabilities, the probable result was that the Applicant was left with no alternative but to resign. His resignation was not voluntary, but was forced due to the Respondent’s conduct as outlined’. But this did not prevail on appeal.

On appeal to Full Bench and following the arguments below the employment Court reversed the above decision.

The respondent asserted that there was no pressure exerted on the applicant to resign. The respondent relied on the applicant’s letter of resignation as evidence of the applicant’s unilateral decision to terminate his own employment and to refute the applicant’s argument to the contrary.

In conclusion, the law treats the resignation as voluntary if the person did it on his own accord without undue interference from the employer. It becomes forced resignation if the worker resigns prompted by the course of conduct of the employer or if the significant contributing factor of resignation is caused by the employer.

Related book: How To Carry Out a Workplace Disciplinary Procedure (Check price on Amazon)


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