An overview of legal procedure & case law
Contains issues that may form the basis of a jurisdictional issue
A forced resignation is when an employee has no real choice but to resign.[1]
The onus is on the employee to prove that they did not resign voluntarily.[2] The employee must prove that the employer forced their resignation.[3]
The employer must take action with the intent to bring the relationship to an end or that has that probable result.[4]
The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one.[5] The line, however, must be 'closely drawn and rigorously observed'.[6]
A forced resignation can also be referred to as constructive dismissal.
An employer is generally able to treat a clear and unambiguous resignation as a resignation.[7]
Where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise.[8] In special circumstances an employer may be required to allow a reasonable period of time to pass.[9] The employer may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.[10]
[1] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at p. 206].
[2] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30, [(2009) 185 IR 359].
[3] ibid.
[4] O'Meara v Stanley Works Pty Ltd, PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].
[5] Doumit v ABB Engineering Construction Pty Ltd, Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
[6] ibid.
[7] Ngo v Link Printing Pty Ltd, Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at para. 12, [(1999) 94 IR 375]; citing Minato v Palmer Corporation Ltd [1995] IRCA 315 (30 June 1995), [(1995) 63 IR 357 at pp. 361‒362]; citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).
[8] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at para. 12, [(1999) 94 IR 375]; citing Kwik-Fit (GB) Ltd v Lineham [1991] UKEAT 250_91_2410 (24 October 1991), [[1992] ICR 183 at p. 191].
[9] ibid.
[10] ibid.