She resigned to take the job. Then they said resigning made her ineligible
A NSW teacher who found her own non-school role after a workplace injury was blocked from taking it - then constructively dismissed.
The New South Wales Industrial Relations Commission ruled on October 29, 2026, that the Department of Education's conduct was "the real and effective initiator" of a teacher's resignation, despite the fact she had formally resigned.
The teacher, a science specialist at a Sydney high school, suffered a physical workplace injury in March 2022 that developed into a psychological injury. Both were accepted as compensable. Apart from a brief unsuccessful attempt at non-classroom duties in March 2023, she had not worked at the school since.
By mid-2023, she had found her own solution. She landed a temporary non-school-based teaching service (NSBTS) position as a curriculum adviser through a merit process - not a return-to-work placement. Her health improved markedly. Her psychologist sessions dropped in frequency. Her husband described watching her recover.
Then the Department restructured, and her role was deleted.
The restructure was announced in September 2024 with a January 2025 start date. Despite verbal assurances from a director that "individual circumstances would be considered" and there were "enough jobs" so nobody would be "forced to go back to school," the teacher missed out in the placement process. No feedback was given on why.
What came next, the Commission found, was a string of failures in the Department's return-to-work process.
Her injury management file had been closed in June 2023 and was not reopened until January 2025. When it was, her return-to-work coordinator told her to find her own role through merit selection and attached a factsheet. The Commission called that a "remarkable suggestion from someone who is employed to facilitate return-to-work."
A second coordinator offered her "suitable employment" at her old school - as a classroom teacher. Her doctor had specifically certified her unfit for that work. The Commission found it "not at all clear" how classroom teaching qualified as suitable employment when the medical certificates said otherwise.
The Department then started a medical retirement process in October 2025. The notice claimed there were "no suitable alternate positions for staff employed under the Teaching Services Act outside of a school setting." The teacher called that "highly inconsistent" with her own experience - she had independently applied for more than 20 NSBTS positions by that date.
The evidence behind the Department's claim came from enquiries made four months earlier. Nobody from the relevant staffing team gave evidence to explain how they reached that conclusion.
Then the break she needed landed.
On January 16, 2026, the teacher was offered a two-year NSBTS engagement officer position, activated from an eligibility list she had been placed on after a merit process. One thing stood between her and the role: written approval from her principal.
The principal said no.
The Commission found the refusal was connected to the medical retirement process. Internal emails showed the principal had been told in September 2025 that a medical retirement notice was being prepared. Based on that, the principal had already overstaffed the science faculty for 2026. When the teacher's request for release arrived in January, the Commission found, it was "not welcome news."
The principal told the teacher she could contact the hiring manager about "the possibility of relinquishing your position" at the school - a suggestion the teacher pursued repeatedly, but which nobody within the Department ever referred to anyone with authority to decide.
The teacher was told to escalate the principal's decision to her Director of Educational Leadership. The Commission found that pathway was "of no practical use" - the director had already been consulted and was supportive of the principal's position. Presenting it as a genuine review option was, the Commission said, "grossly misleading."
In the escalation call on January 29, 2026, the director told the teacher her options were to return to her classroom role, keep applying through merit selection, or "resign if she wished to do so." She did not warn her that resigning would make her ineligible for the NSBTS position.
Two days earlier, the teacher had called the Department's staff advice service, EdConnect. The Commission accepted her evidence that she was told if her principal would not release her, "the only way" to secure the NSBTS position was to "separate from the Department" - but that EdConnect did not recommend doing so. The Department could not produce a recording or file note of the call after it was transferred.
On January 30, 2026, she resigned. Her resignation note stated: "I wish to make clear that this decision is not voluntary."
She called the hiring manager to say she had resigned and was ready to start. He told her that because she had separated from the Department, she was no longer eligible for the role.
Nobody had told her that before she resigned.
The Commission preferred the teacher's evidence over the Department's witnesses on the critical disputed calls. The hiring manager's own recollection was, by his admission, "vague." The Department called no evidence from the EdConnect officer who spoke to the teacher. And the director's account of the timeline was, the Commission found, "obviously wrong."
Applying the constructive dismissal test from Allison v Bega Valley Council - which asks whether the employer's conduct was the real and effective initiator of the termination despite the employee appearing to resign - the Commission identified three drivers: the refusal to release the teacher to take a role she had been conditionally offered; the escalation pathway that was "doomed to fail"; and the failure to act on her offer to give up her school position while the window for the NSBTS role was closing.
The Commission also found the Department had breached its duty under section 49 of the Workplace Injury Management and Workers Compensation Act 1998 to provide suitable employment on request. The NSBTS position was vacant, available, within the teacher's medical restrictions, and the Department itself had assessed her as suitable for it.
"I do not accept it was not reasonably practicable to provide that suitable employment simply because of a policy restriction self-imposed by the Respondent," the decision states.
The matter now moves to a further hearing to determine whether the dismissal was harsh, unjust or unreasonable, and what remedy may be appropriate. Directions are listed for November 2, 2026.
For HR teams managing injured workers, the case makes one thing plain: the obligation to provide suitable employment sits with the employer, not the worker. Telling someone to find their own role, then blocking them when they do, is a path to a constructive dismissal finding.
The decision reflects the findings and reasoning of the Industrial Relations Commission of New South Wales. The matter remains before the Commission for further hearing on remedy.
