Resources: Blogs

The force is not strong with this one


FWC finds employee resignation was not a constructive dismissal

When conducting a disciplinary process, it is crucial to ensure that a final decision on disciplinary action is not made until the employee is given a proper opportunity to respond to any allegations made against them.

When conducting a disciplinary process, it is crucial to ensure that a final decision on disciplinary action is not made until the employee is given a proper opportunity to respond to any allegations made against them.

This is because one of the factors that the Fair Work Commission (FWC) will consider in an unfair dismissal application is whether the employee was provided with what is known as “procedural fairness” or an opportunity to explain their version of events.

In addition to this, it minimises the risk of an employee successfully claiming that the dismissal was an inevitability and they therefore had no choice but to resign, as they were going to be dismissed regardless of what they said in the disciplinary process.

Take, for example, the recent decision of the FWC in Dellicastelli v Healius Pathology Pty Ltd t/a Dorevitch Pathology [2022] FWC 2747.

In this matter, a former employee claimed that she had been forced to resign (or “constructively dismissed”) from her employment because of the conduct of her employer during a disciplinary process, amongst other things.

The disciplinary process concerned allegations that she would make persistent and intimidating telephone calls to her team members, during which she would yell at them.

The employee had learnt from her union representative that the employer was going to dismiss her as a result of her conduct. However, the employer’s human resources manager rang the employee and confirmed that she would not be dismissed but other disciplinary action would be taken instead. The human resources manager also discussed the employee’s unrelated request to cash out two weeks of her annual leave – clarifying that the employer would not agree to the request, but that if she decided to resign, all of her accrued leave would be paid out.

The employee subsequently handed in her resignation, citing her conversation with the human resources manager in which he allegedly indicated that the best thing for her would be her immediate exit from the company.

The employer objected to the employee’s application for unfair dismissal on the basis that she had not been constructively dismissed; rather, she had freely resigned on her own initiative.  

The FWC agreed with the employer, finding that, on the employee’s own evidence, the human resources manager never told her that she should immediately exit the company but that she had inferred this from his tone. It found that even if the human resources manager did say or imply that it was in the employee’s best interests to resign, the employee had no obligation to do so as she could have simply ignored him or contacted her union to seek advice.

The FWC also found that the human resources manager’s statement that the employee’s accrued leave would be paid out if she resigned was not a means of pressuring her to resign. The FWC considered it was a reasonable observation to make and it was not a proposal to dismiss her.

The FWC therefore found that the employee voluntarily made the decision to resign from her employment and the employer did not engage in any conduct which caused her to do so. It therefore dismissed the employee’s application.

Lessons for employers

It is important that employers carefully consider their communications with an employee during the course of a disciplinary process.

As can be seen from this decision, clear and transparent communication will assist an employer in proving that an employee was provided with procedural fairness during the disciplinary process and minimise the risk of an employee being found to have been constructively dismissed.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

Similar articles

injury and the reasonable management action defence

Don’t pre-judge me

In cases of workers compensation involving psychological injury, employers may rely on the “reasonable management action” defence to dispute liability for injury.


Employee dismissed for theft of tools unfairly dismissed

Toolbox essentials

The Fair Work Commission has reminded employers about the duty to afford procedural fairness to employees prior to dismissal.


Secure Jobs, Better Pay: 6 June 2023 - key changes for employers on this date

The passing of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) has resulted in several significant changes to the Fair Work Act 2009 (Cth). With some of these changes already in force, employers must now turn their minds to 6 June 2023 – the date of which the next wave of amendments will take effect.


Commission finds employee’s flexible working request to work entirely from home was not reasonable

The worst has now passed

One of the many changes to the Fair Work Act 2009 (Cth) introduced this year include the Fair Work Commission’s new powers to deal with disputes relating to requests for flexible working arrangements.


Remote work environment risks and considerations

Barking up a broad tree

Work from home arrangements have become the “new normal” across many workplaces since the COVID-19 pandemic.


Superannuation obligations for independent contractors


A recent decision of the Federal Court of Australia – Full Court has provided some clarity to employers in relation to when the obligation to pay superannuation will or will not arise.


Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Sign up to receive the latest industry updates with commentary from the Workplace Law team direct to your inbox.