What is a forced resignation ?
18 December 2019
First, a forced resignation occurs when an employee has no real choice but to resign.
Proof of a forced resignation
The employee must prove they did not resign voluntarily and that the employer forced their resignation.
Also, it has to be the case that the employer took action with the intent to bring the relationship to an end.
An employer is generally able to treat a clear and unambiguous resignation by en employee as a resignation.
What about if that resignation is given by the employee in the heat of the moment?
Employer responsibility - heat of the moment resignation
In the case of a heat of the moment resignation, an employer may be required to allow a reasonable period of time to pass.
That is, to make sure that the employee truly meant to resign.
Also, 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.
Fair Work found the cases below to be forced resignation
An employee sends a letter to their employer indicating their intention to resign in the future. The employee was distressed and unwell and it was not held to be effective notice of resignation. The employer’s acceptance of the resignation was held to be a termination at the employer’s initiative: Marks v Melbourne Health .
Employer alleged employee resigned
After an angry discussion, an employee thought they were dismissed and the employer thought they resigned. The employer continued to attend work (to work out the notice period). Her attendance at work showed that she did not demonstrate an intention not to be bound by her contract of employment: Bender v Raplow Pty Ltd .
Failure to pay wages
An employee gave notice of resignation after having been paid under half of his owed wages. This was held to be forced resignation by the employee and the employer’s conduct constituted a dismissal by the employer: Bender v Raplow Pty Ltd .
Key take aways
If an employee resigns in the heat of the moment, for example, after a heated discussion, the employer should let some time pass then confirm the employee's intentions.
Also, if an employer treats an employee unfairly and gives them no choice but to resign, this could be deemed a forced resignation.
In the case of a forced resignation, the termination is considered at the initiative of the employer and may allow the employee to claim they were unfairly dismissed.
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