Posts: constructive dismissal

For an employee to bring a valid unfair dismissal claim or a general protections claim involving dismissal, it should be obvious that they must have been dismissed by their employer.

A recent decision of the NSW Industrial Relations Commission has highlighted one of the pertinent issues currently being faced by employers – that is, to what extent an employer is entitled to require or request an employee provide them with personal medical information.

For an employee to access the unfair dismissal jurisdiction, they must be “dismissed” from their employment by the employer. In some instances, a resignation can be a “dismissal”, when an employee is forced to resign due to the employer’s conduct. This is referred to as a “constructive dismissal”.

In order to access the unfair dismissal jurisdiction, an employee must be “dismissed” from their employment by the employer. One of the instances in which an employee may be “dismissed” from their employment is if they were forced to resign because of the employer’s conduct or course of conduct.

Managing employee exits can be tricky business, particularly when dismissing an employee for unacceptable conduct and behaviour.