Can a Government Transfer Be a Dismissal?

Can a transfer between government departments count as being dismissed? A recent case before the Fair Work Commission explored that very question and confirmed just how high the bar is for proving a “forced resignation” in the public service.

An employee lodged a general protections dismissal claim, arguing she was left with no real choice but to leave her role at a major Commonwealth agency after enduring years of bullying and inaction from senior management. She transferred to a different federal agency, claiming this wasn’t a voluntary move but rather a necessary escape from an unsafe and untenable workplace.

Her claim was that the transfer represented either a dismissal or a resignation brought on by the employer’s conduct. She alleged she had been subjected to sustained harassment in retaliation for exercising her workplace rights, which led to serious mental health consequences and repeated requests for support that were ignored. Ultimately, she applied to move to another agency under the Public Service Act. She argued this was not a true choice but a last resort, and that the employer’s actions (or failure to act) had effectively terminated her employment.

The Commission, however, upheld a jurisdictional objection. It found there had been no “dismissal” in the legal sense. While the employee had moved from one agency to another, she remained continuously employed by the Commonwealth of Australia. The two agencies were not considered separate employers. Despite having signed a new contract and gone through separate onboarding processes, the Commission held that the administrative steps involved did not amount to starting a new employment relationship. It pointed out that all agencies are funded by the same employer and that transfers are not new engagements but simply movements within the same overarching employment.

The Commission also considered whether she had been forced to resign. It emphasised that proving a forced resignation requires clear evidence that the employer’s conduct either intended to, or was likely to, end the employment. While the employee’s account of workplace mistreatment was serious and detailed, the Commission found that the voluntary transfer did not meet the legal threshold of being a constructive dismissal.

This case highlights how difficult it can be to establish a dismissal where a transfer is technically voluntary. Even when an employee feels pushed out due to poor treatment, if the formal process was a voluntary move, it may not be considered a termination. Employees facing a similar situation should understand the importance of documenting the conduct they experience, seeking formal support, and considering all options. The fact that someone feels they had “no choice” is not enough unless that lack of choice stems directly from conduct by the employer that was intended to, or did in effect, end the employment.