Did You Really Resign? The Truth About Constructive Dismissal
Resignation might seem like a clean break. But if you felt forced to quit, the law might see things differently. In Australian workplace law, constructive dismissal is when an employee resigns—but only because the employer’s conduct made continued employment impossible. It’s still treated as a dismissal under the Fair Work Act. Many employees don’t realise they may be able to challenge what happened—even though they handed in a resignation letter.
What Is Constructive Dismissal?
Under section 386(1)(b) of the Fair Work Act, you’re considered dismissed if:
You were forced to resign because of your employer’s conduct.
If your employer creates a work environment so hostile, unsafe, or unreasonable that a reasonable person would feel they had no choice but to resign, then it’s a dismissal in disguise.
This includes things like:
Systematic bullying or exclusion
Significant, unjustified cuts to hours or pay
Sudden demotion without cause
A manager making it clear they want you gone
Constant undermining or bad-faith treatment
What Doesn’t Count?
Not every bad situation qualifies.
If you resigned over a disagreement or conflict, but your employer didn’t push you out, that’s likely not constructive dismissal.
If there were genuine attempts to address your concerns and you left anyway, the Commission may view it as a personal decision.
The test isn’t whether it felt unfair. The test is whether the employer’s behaviour directly caused you to resign.
How the Commission Looks at It
The Fair Work Commission looks at the facts carefully. You’ll need to show:
Causation – that the resignation was a direct result of the employer’s conduct
No reasonable alternative – that you had no practical choice but to resign
Credibility – that your story is supported by evidence (emails, texts, witnesses, etc.)
The employer doesn’t need to say the words “you should quit.” The Commission looks at what their actions signalled and whether your response was proportionate.
What You Can Do if You Resigned Under Pressure
If your resignation fits the definition of constructive dismissal, you may still have access to the unfair dismissal regime. Don’t wait. Collect your evidence. Write down exactly what happened. And get advice early.
Just because you resigned doesn’t mean you weren’t pushed. Many employers count on you walking away quietly. But if they created the conditions that forced you out, it’s still a dismissal—and the law may be on your side.
If you were backed into a corner and told “you chose to leave,” take a closer look. That choice might not have been yours at all
