Beware of the Repercussions of Forcing an Employee to Resign

As employment lawyers, we are always concerned when we see situations where employees are being placed in a position where they really have no choice but to resign from their employment. Such conduct by an employer can lead to the employee having reasonable prospects of a successful unfair dismissal claim.

I’m Hamish Procter from Aitken Legal, and in this video, I am going to talk about an unfair dismissal decision of the Fair Work Commission, which dealt with a case of forced resignation.

In the decision of Trail v O’Brien Group Australia, the Fair Work Commission determined that an employee who had tendered a written resignation to her employer, was in fact unfairly dismissed. The employee in this case was awarded 14 weeks’ pay as compensation for her unfair dismissal.

The employee resigned after receiving two written warnings over a period of 7 days. The employee claimed that she had never had disciplinary action taken against her before those two warnings, and that the employer failed to follow its policies and procedure in delivering the warnings.

In explaining the law on forced resignations, the Commissioner explained that in circumstances where an employee has resigned, the employee must demonstrate to the Commission that the circumstances surrounding their resignation are consistent with the “meaning of dismissed” under section 386 of the Fair Work Act. Those provisions state that a person has been dismissed if the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by the employer.

In this instance, the Commission was satisfied that the employer “engaged in the conduct that it did with an intention to bring the employment relationship to an end, or that it would have that probable result.” The Commissioner also accepted that the employee had “no effective or real choice but to resign her employment” and was “forced to do so because of a course of conduct engaged in by the employer”.

In support of that view the Commissioner noted (amongst other things) that the evidence demonstrated:

- That the employer clearly had an “eye on the future” which did not involve the employee; and
- The employee’s manager had “deliberately” ostracised the employee from important emails.

In this case, the Commission “accepted [the employee’s] concerns were real, and termination of her employment would likely be realised given the manner in which she had been treated in the prior months, weeks and days”.

This decision serves as a great reminder to employers that if you place an employee in a position where they have no choice but to resign, then that employee may still be able to make an unfair dismissal claim with prospects of success.

Employer’s experiencing difficulties with an employee, and who want to know their rights and obligations relevant to managing that employee, should contact one of the experienced employment lawyers at Aitken Legal.

#fairworkact #fairworkcommission #employmentlaw #employmentlawyer

[maxalberts]

This case occurred in Australia. If this same circumstance were to arise in the USA, the terminated employee would be laughed out of court. Unless you belong to a union--a strong one--in the USA, you have NO rights as an employee.

[benscott]

I have questions.
I was a director of operations in Tn. Just forced to resign. No verbal or written warnings prior. Wife is 8 months pregnant. Can I sue?

[Gulpathfinder]

This is not the case for the US. Employees can be forced to quit through any means. Making an employee’s life difficult is not against any laws.

For example, schedule meetings at times when a certain employee won’t be able to make it. Then write him up for not being able to make it. Doesn’t matter if the guy is in the hospital after a car accident. He’s getting written up for insubordination.

[r]

Hi! I love your informative videos. Thank you very much! I work in Information Technology. My salary hasn't decreased. I just received a 4% raise. Altogether, I feel very much mistreated and discriminated against at my job. Being with my company for 5 years, we switched our contract a year ago. The company seem to now hire mostly inexperienced males, paying them low wages or whatever they feel fit. Several of the new employees or good friends are related by blood to management. I'm near 50 years old and have worked extremely hard to move the company forward. I'm beyond numb because they just sent a mass email of the company's new transition. In the email, they announced all the newly hired employees, promotions, and department changes. In the email, I noticed they mentioned my name in a sentence congratulating a new employee/my new teammate. The department and title they mentioned her in with my name included is waaay beneath my job title. I came in as a software developer, and they put me under the title of client support. I was in shock and very much hurt. I immediately went to my supervisor's office in a professional manner to get answers, and he turned me away by stating, "it's just a title." I emailed the project manager and director, and they both totally ignored my emails. I also called HR. HR explained my job title coming in and still listed as 'software developer'. All the new employees are addressing me by the new title of customer support, as being labeled in the email. Every day, I walk in that place humiliated. Most of the employees there know I work extremely hard... It's very embarrassing and humiliating. Now, I'm noticing my supervisor is quietly moving my duties around. I'm pretty sure they are trying to save money, but I can't believe they would go this far to achieve whatever they are trying to achieve. They are totally ignoring me. I feel they are trying to make me resign or demote me...If so, I I feel they are going about it the wrong way. I'm job searching now because I feel like I've been used, lowballed, disrespected and mistreated. Do you have any constructive advice for me. I'm totally losing sleep over this.

[JamesMorton-yjvt]

I was forced to resign over time keeping with no warning

[trainingdogsoneonone]

On a average how much would you get in mediation from this ?

[calebmoyer]

The real reason: Outside that building, you're just a guy, and there's no security guard

[ijmartin]

hi thanks for the video. I have a question. what if I was on a paid suspended and my employer asked me not to do any other job, Assuming I have a second job before the suspension, what am I going to do. please I need an answer. thank you

[APerez]

You all deserve what you farm and harvest 😂.