The Fair Work Commission has recently determined a number of cases on the question of constructive dismissal.  In each of these cases the employee claimed that whilst they resigned from their employment, their resignations were not voluntary in the true sense, and therefore the end of their employment falls within the definition of dismissal in s.386(1)(b) of the Fair Work Act 2009 (Cth) (FW Act).

Some constructive dismissal claims involve a ‘heat of the moment’ resignation.  In these cases, the Fair Work Commission (FWC) is tasked with determining whether there has been a dismissal within the meaning of the FW Act.  A resignation may not be effective where it is given in ‘the heat of the moment’ or when the employee was in a state 0f mental distress or emotional confusion, as this may suggest there was no true intention to resign.  Other constrictive dismissal claims require a determination of whether the resignation was forced, in circumstance were the employee maintains they had no choice but to resign.

No intention to resign

The FWC has established that when an employee resigns in circumstances where the employee did not intend to resign, accepting that employee’s resignation may satisfy the requirements for a dismissal.  Below we examine a few recent decisions of the FWC:

Dwayne Anthony Brunné v David Mansart [2024] FWC 579

Mr Brunné was employed as the manager of a bakehouse in Nowra, New South Wales.

On Saturday 9 September 2023, Mr Brunné was working in the retail section of the bakery when the store got very busy, and he called the bakery’s owner, Mr Mansart for help.  Mr Mansart served one customer, then returned to the bakery area, although the store was very busy.  Customers began to leave due to the wait time.  Mr Brunné again called to Mr Mansart, asking him to stay and help.  Mr Mansart yelled at Mr Brunné.  Following this incident, Mr Brunné got his bag, said that he was ‘sick of everything’ and left.

Mr Brunné then sent a message to Mr Mansart the next day saying:

“Saturday was Saturday, tomorrow is a new day, see you in the morning”.

Mr Brunné could not bring himself to attend work but came into the bakery in casual clothes to speak with Mr Mansart.  Mr Brunné provided Mr Mansart with a medical certificate for a period of 12 days and returned his keys to the bakery on 11 September 2023.  Mr Mansart confirmed the cessation of Mr Brunné’s employment via a letter on 22 September 2023, nearly two weeks after Mr Brunne left the workplace unexpectedly.

Mr Brunné brought a General Protections Application involving dismissal in the FWC against his employer. The employer maintained that Mr Brunné had resigned and was not dismissed.

The FWC found that Mr Brunné had communicated a resignation, but this resignation did not have legal effect due to his emotional stress or mental confusion, which meant that he could not reasonably be conveying a real intention to resign.  The FWC stated that Mr Brunné providing a medical certificate combined with the text message sent following the resignation should have alerted the employer that Mr Brunné did not intend to resign.

Bullying, harassment and toxic work environments

The FWC has considered a number of cases where an employee resigns in circumstances where it is alleged, they have been subjected to workplace bullying or harassment.  The FWC will consider whether the employee has been “forced” to resign, not whether the employee felt the only way to end the bullying or harassment was to resign.  In doing so, the FWC will look at the conduct of or omissions by the employer.  The FWC has confirmed that the bar for establishing a forced resignation is high, and that the Commission will look at whether the employee had exhausted all other available options before resigning.  One recent example of these circumstances is the case of:

Noble v Smiling Samoyed Pty Ltd [2023] FWC 941

The employee claimed she was forced to resign due to an incident of workplace bullying by a co-worker.  The employee claimed that her employer had omitted to take reasonable steps to ensure she felt safe at work and that as a result she had lost trust and confidence in her employer.

The FWC determined that the employer had not engaged in conduct that was intended to make the employee resign.  The FWC noted that the employer had made various accommodations for the employee’s health issues and had specifically told her that they did not want her to resign.  The FWC also noted that there were conflict resolution processes in place that the employee could have accessed.

What does this mean for employers?

The main takeaways for employers are:

  • When an employee suddenly, seemingly without considering the consequences of their actions, resigns in the ‘heat of the moment’ employers should be cautious to accept the resignation;
  • Caution should be had in accepting a resignation given when an employee is very emotional or distressed; and
  • Ensure there are processes in place for reporting and managing bullying, harassment, and inappropriate workplace conduct.

If you have any questions about constructive dismissal, please contact us.

Written by Alisar Tawil and Nicole Dunn


Disclaimer: This publication has been provided for general guidance only and does not constitute professional legal advice. You should obtain professional legal advice before acting on information contained in this article.