Resigning Under Pressure? Why You Must Prove You Had No Real Choice

The Fair Work Commission's decision in Howe reinforces a critical threshold for employees claiming they were forced to resign.

If an employee resigns and later tries to argue it was a dismissal, the legal burden is on them to prove they had no real, effective or meaningful choice but to resign because of the employer’s conduct. This is known as a “constructive dismissal” or “forced resignation.”

In Ms Howe’s case, despite serious allegations about exclusion, governance failures and workplace mistreatment, the Commission held that she had not crossed that threshold. Her resignation letter referred to "careful reflection," and many of her complaints related to events that occurred after she had already resigned. The Commission ultimately found she still had options and avenues to raise concerns without resigning.

The key takeaway: a resignation will only be treated as a dismissal under the Fair Work Act if the employee can demonstrate the employer’s conduct left them with no real choice; if you resign, and later claim you were pushed, you must be able to show that resignation wasn’t a choice — it was the only option left.