Worker says months of mistreatment forced resignation, but employer disagrees
The Fair Work Commission (FWC) recently dealt with a case involving a casual farm worker who claimed she was forced to resign from her position, raising questions about when workplace conduct crosses the line from difficult working conditions to constructive dismissal.
The worker argued that her employer's treatment had become so unreasonable that she had no choice but to resign, claiming this amounted to a dismissal under general protections laws. She maintained that ongoing workplace issues and the employer's handling of various complaints had created an untenable situation that forced her hand.
The employer defended against the claim, arguing that the worker had voluntarily resigned and was not dismissed. The company maintained that while there had been workplace difficulties, their conduct did not amount to forcing the worker to quit, and that she had made a deliberate choice to end the employment relationship.
Casual worker resigns amid workplace tensions
The worker had been employed as a casual farm hand by a food and fibre company from February 2024 until March 2025. On 21 March 2025, the employer advised her that she would no longer be required for work either at the end of the following week or early in the week after that.
When the worker sought clarification about the exact date of her dismissal, the employer responded that "at this stage work will finish Friday 28 March 2025."
However, the employment ended earlier than expected. On 24 and 25 March 2025, the worker was unwell and did not attend work. On 26 March 2025, the employer made enquiries about the worker's wellbeing and asked about her timesheet for an earlier day that month.
In response to these enquiries, the worker wrote to the employer stating: "After everything that's happened, and the way it's been handled, I won't be returning." This communication brought the employment relationship to an end with immediate effect, two days before the planned termination date. The worker argued this resignation amounted to a dismissal under workplace laws.
Employment relationship deteriorated over several months
The FWC heard evidence that there had been significant difficulties in the employment relationship after January 2025. The worker had made various enquiries and complaints during this period and felt that she was being targeted and treated adversely as a result. The responses she received from the employer did not resolve her concerns about workplace treatment.
The employment relationship had deteriorated to such an extent that the worker was unwilling to attend meetings at work without the approval of her solicitor. This breakdown in communication and trust formed part of the worker's argument that she had been constructively dismissed rather than voluntarily resigning.
The final trigger for the worker's resignation appears to have been the employer's enquiry on 26 March about her wellbeing and a timesheet matter. The FWC noted that this enquiry related to "an earlier resolved timesheet error" and that this issue "was the last straw" for the worker.
The timing of this enquiry, coming just days before her planned termination, contributed to the worker's decision to resign immediately.
Commission examines forced resignation claims
The FWC examined whether the worker's resignation constituted a dismissal under section 386 of the Fair Work Act 2009. This provision covers situations where a worker is forced to resign due to conduct by the employer.
The Commission needed to determine whether the employer engaged in conduct with the intention of ending the employment, or whether termination was the probable result of the employer's actions.
The FWC found that while the worker had experienced workplace stress and unhappiness about her treatment, her decision to resign was considered rather than impulsive. The Commission stated:
"On the evidence, I do not find that the resignation occurred in the heat of the moment, or when [the worker] was in such a state of emotional stress or mental confusion that she could not reasonably be understood as conveying a real intention to resign."
The FWC noted that the worker's advice to the employer that she would not be returning "was a considered one, reflecting a loss of confidence in the employment relationship."
The Commission found no evidence that the worker did not mean what she wrote or that she had overreacted impulsively. Importantly, the worker did not later change her mind or communicate any desire to return to work.
Employer conduct insufficient for constructive dismissal
The Commission examined the employer's conduct in the days leading up to the resignation to determine whether it amounted to forcing the worker to quit. The FWC noted: "There is no evidence of [the employer's] intention to bring the employment to an end on or by that date. [The employer] had advised [the worker] that she would remain in employment at least until 28 March 2025."
The only relevant conduct by the employer between 21 March (when notice was given) and 26 March (when the worker resigned) was the enquiry about the worker's wellbeing and timesheet. The FWC found: "Objectively seen, this conduct did not have the probable result of bringing forward the termination of employment."
The Commission determined that the employer had not engaged in "conduct, or a course of conduct, with the intention of bringing the employment to an end, or that this was the probable result of its conduct, such that on 26 March 2025, [the worker] had no effective or real choice but to resign."
The FWC emphasised that termination of employment on 26 March was not the probable result of the employer's conduct.
FWC: Is it forced resignation?
The FWC concluded that the worker had genuine alternatives available to her and was not forced to resign.
The Commission found: "At the time the employment came to an end, [the worker] had the choice to remain in employment (although only for a short period). She chose not to return to work. By communicating the decision to [the employer], [the worker] brought the employment to an end."
The FWC determined: "I find that [the worker] was not dismissed within the meaning of s.386(1)(a) of the Act. The employment ended by [the worker's] resignation on 26 March 2025. It was not terminated on the initiative of [the employer]." This finding was crucial as it meant the worker could not pursue her general protections claim.
The Commission's decision highlights the high threshold required to establish constructive dismissal. The FWC stated: "I do not accept that [the worker] was forced to resign within the meaning of s.386(1)(b) of the Act."
Despite acknowledging the workplace difficulties and the worker's genuine concerns, the Commission found that the employer's conduct did not meet the legal test for forced resignation, resulting in the application being dismissed.
