Constructive dismissal can occur when an employee resigns because their employer’s conduct has made continuing employment untenable. This may happen when an employer seriously breaches the employment contract or engages in conduct that effectively forces an employee to leave. Understanding the ways to prove constructive dismissal, such as documenting workplace incidents, retaining relevant communications and reviewing employment terms, can help employees assess their circumstances and determine their next steps. Unlike a conventional dismissal, the employer does not directly terminate the employee’s employment. Instead, the employee resigns because of the employer’s actions.
Understanding how to prove constructive dismissal is important because simply being unhappy at work or experiencing difficult management does not automatically establish a claim. An employee generally needs convincing evidence demonstrating that the employer’s conduct caused the resignation and that the circumstances may constitute a dismissal under applicable Australian employment law.
What Is Constructive Dismissal?
Constructive dismissal generally refers to situations where an employee resigns because of their employer’s conduct. Under Australian workplace law, a resignation may be treated as a dismissal if the employee was forced to resign because of the employer’s conduct. Whether this applies depends on the circumstances and the relevant legal requirements.
Examples may include an employer significantly reducing an employee’s wages without agreement, making unreasonable changes to working conditions, substantially altering their role, allowing serious bullying or harassment to continue, or creating unsafe working conditions. Unreasonable changes to working hours, responsibilities or workplace location may also be relevant.
However, an unpleasant workplace or disagreement with a manager is not necessarily enough to establish a claim. The circumstances must be assessed against the applicable legal requirements, including whether the employer’s conduct effectively forced the employee to resign.
Identify the Employer’s Conduct and Its Effect on the Resignation
One of the most important ways to prove constructive dismissal is identifying the employer’s conduct and establishing why it may amount to a serious breach of the employment contract or another relevant workplace obligation.
Evidence may include the employment contract, written terms and conditions, workplace policies, emails, letters, payslips, meeting records and text messages. These documents can help establish what the employee was entitled to receive and how the employer’s actions differed from those obligations.
A breach may involve an express contractual term, such as salary, working hours or job responsibilities. It may also involve obligations implied in the employment relationship. For example, serious conduct that undermines trust and confidence may be relevant, depending on the circumstances and the applicable law.
Employees should retain relevant documents and organise them chronologically to make the sequence of events easier to understand.
Keep Clear Records of Workplace Problems
Maintaining a detailed record can be extremely valuable when attempting to establish a constructive dismissal claim. Employees should document what happened, when it occurred, who was involved and how they responded.
Emails and written communications can provide particularly useful evidence because they create a record of workplace events. When conversations take place verbally, making a factual note as soon as possible afterwards can help preserve important details.
The records should focus on objective facts rather than assumptions or personal interpretations. Documenting specific changes to duties, working arrangements, remuneration, treatment or workplace conditions can help demonstrate a pattern of conduct.
Employees should also keep copies of relevant performance reviews, formal warnings, complaints and responses from management. Records should be stored securely and handled in accordance with applicable privacy and workplace requirements.
Show That the Resignation Was Caused by the Employer’s Conduct
Another essential consideration is establishing a clear connection between the employer’s conduct and the employee’s resignation. The employee needs to explain why the circumstances led them to leave and how the employer’s actions contributed to that decision.
A resignation letter can be particularly important evidence. Rather than simply stating that the employee is leaving, it may explain the significant issues that led to the decision and identify relevant incidents or unresolved concerns.
Where appropriate, the letter can outline the employer’s conduct, previous attempts to resolve the problems and why the employee considers continued employment untenable. Keeping the wording factual and precise can help clarify the reasons for resigning.
Employees should also retain any correspondence exchanged before and after submitting their resignation, as it may help establish the circumstances surrounding their departure.
Demonstrate That the Resignation Was Not Simply a Voluntary Decision
The circumstances surrounding the resignation are important when assessing whether an employee was effectively forced to leave. An employer may argue that the employee resigned voluntarily, particularly if there is limited evidence explaining the reasons for the decision.
Employees should therefore retain records showing how the employer’s conduct affected their ability or willingness to continue working. This may include written complaints, requests for changes to working arrangements, reports of inappropriate behaviour and correspondence documenting unresolved problems.
Continuing to work after an incident does not automatically prevent an employee from making a claim. However, the timing of the resignation and the employee’s conduct after the incident may be relevant when assessing the circumstances.
Before resigning, employees should seek advice from an employment lawyer or a qualified workplace relations adviser. Leaving employment without understanding the potential legal consequences may affect the available options.
Use Grievances and Formal Complaints as Evidence
Where it is safe and appropriate to do so, raising concerns through the employer’s internal grievance procedure can create an important record of the dispute. It may demonstrate that the employee identified the problem, communicated their concerns and allowed the employer to address the situation.
A formal complaint can also help establish that the resignation followed specific workplace issues rather than ordinary dissatisfaction. Employees should retain copies of complaints, acknowledgement emails, investigation outcomes and any proposed resolutions.
If the employer fails to respond appropriately, the lack of action may be relevant to the overall circumstances. However, employees should not assume that lodging a grievance automatically establishes a constructive dismissal claim.
The appropriate approach will depend on the nature of the complaint, the employer’s response and the protections available under Australian workplace law.
Gather Evidence of Bullying, Harassment or Discrimination
Bullying, harassment and discrimination may contribute to circumstances in which an employee feels compelled to resign. Relevant evidence could include inappropriate messages, emails, meeting notes, witness statements, formal complaints and records showing that concerns were reported but not adequately addressed.
Employees should document specific incidents, including dates, locations, people involved and any action taken afterwards. Witnesses who directly observed the conduct may also be able to provide useful information.
Australian workplace laws provide protections against certain forms of discrimination, workplace bullying and adverse action. Depending on the circumstances, an employee may have options under the Fair Work Act 2009, federal or state anti-discrimination legislation, or applicable work health and safety laws.
The appropriate legal pathway depends on the facts of the case. A clear chronological record can help explain how individual incidents contributed to the employee’s decision to resign.
Understand the Importance of Timing
Timing is an important consideration when pursuing a constructive dismissal-related claim. Employees should avoid assuming they can wait indefinitely before taking action after a serious workplace incident or contractual breach.
For eligible unfair dismissal applications, an application must generally be lodged with the Fair Work Commission within 21 days after the dismissal takes effect. The Commission may grant an extension in exceptional circumstances, but employees should not rely on receiving one.
General protections applications involving dismissal are also generally subject to a 21-day deadline. The applicable eligibility requirements and legal pathway depend on the circumstances.
Employees should obtain professional advice promptly to identify the appropriate claim, confirm the relevant deadline and understand any eligibility requirements before making a decision about resignation.
Conclusion
Proving constructive dismissal in Australia requires more than demonstrating that an employer behaved unfairly or that the workplace became difficult. An employee generally needs to establish the circumstances surrounding their resignation and determine whether the employer’s conduct may amount to a dismissal under the applicable workplace laws.
Strong documentary evidence, detailed records, grievance correspondence and a carefully prepared resignation letter can help explain what happened and why the employee decided to leave. Evidence of bullying, discrimination, unreasonable changes to working conditions or serious contractual breaches may also be relevant.
Because constructive dismissal-related claims can be challenging and strict application deadlines may apply, obtaining advice from an employment lawyer or a qualified workplace relations adviser before resigning can be an important step.