Constructive dismissal is when you resign because your employer's conduct left you no real choice. Australian law treats it as a dismissal, which means you may be able to bring an unfair dismissal or general protections claim at the Fair Work Commission. The bar is high and the deadline is 21 days after your employment ends.
What counts as constructive dismissal?
Section 386 of the Fair Work Act says a person has been dismissed if they resigned and were "forced to do so because of conduct, or a course of conduct, engaged in by his or her employer". The Fair Work Commission calls this a forced resignation. Constructive dismissal is the other name for it.
The Commission describes a forced resignation as one where the employee has no real choice other than to resign. The employer must have acted with the intent of ending the employment, or in a way that had that probable result.
A demotion can count too. The Commission says a demotion that brings a significant reduction in pay or duties might be recognised as constructive dismissal. A demotion without a significant cut in pay or duties is not a dismissal at all.
What isn't constructive dismissal?
When an employee chooses to resign, the Commission does not treat it as a dismissal. It says the line between being forced out and leaving on your own initiative is narrow and must be "closely drawn and rigorously observed". The burden sits with you to prove you didn't resign voluntarily.
The case examples the Commission publishes show where that line falls. An employee who resigned after being paid less than half of what he was owed in wages over four months was found to have been forced out. An employee whose wages were repeatedly paid late, usually by a day or two, and whose super went unpaid, was found to have resigned voluntarily. The Commission called the employer's conduct improper and still found it had left her a choice.
Resigning before a scheduled disciplinary meeting, and resigning after being put under supervision requirements, have both been found to be voluntary.
Can you take back a resignation made in the heat of the moment?
Sometimes. An employer can generally treat a clear and unambiguous resignation as a resignation. Where it was given in the heat of the moment or under extreme pressure, the Commission says special circumstances may arise. The employer may need to let a reasonable period pass, and may have a duty to confirm you meant it if you tell them you didn't.
So if you quit on a Teams call at 4.55pm on a Friday and regret it by Saturday, say so in writing quickly.
Who can make a constructive dismissal claim?
A constructive dismissal is argued inside an unfair dismissal claim or a general protections claim, and the usual rules for each apply.
To apply for unfair dismissal you must
- have worked for the employer for at least 6 months, or 12 months if it is a small business with fewer than 15 employees
- be covered by the national workplace relations system
- be covered by an award or enterprise agreement, or earn less than the high income threshold.
As at October 2026 the high income threshold is $190,100 for dismissals on or after 1 July 2026. It was $183,100 for dismissals up to 30 June 2026. Commissions, bonuses and compulsory super don't count towards earnings for the threshold.
A general protections claim is for a dismissal made for a prohibited reason, such as being away from work on sick leave, and the Commission says a forced resignation can count as that dismissal. Its published list of who can apply doesn't include a minimum employment period or an income threshold. If you have already made an unfair dismissal application about the dismissal, you can't then make a general protections one.
How long do you have to make a claim?
21 days from when the dismissal takes effect, for both unfair dismissal and general protections. The Commission says a dismissal takes effect on the date your employment contract ends, which may be your last day at work, your last day of paid leave or a later date given in a notice.
The Commission can extend the deadline only in exceptional circumstances, and says most extension requests are declined. Not knowing about the time limit, or being busy, stressed or upset, are usually not exceptional. Both types of application start a legal process and carry an application fee.
What should you do before you resign?
The Commission's own eligibility checker suggests getting legal advice if you believe you were forced to resign. Get it before you hand in the letter, while staying is still an option.
Because you carry the burden of proof, records matter. Raise the problem with your employer in writing and keep a copy. Keep emails, pay slips and a dated note of each incident somewhere other than your work laptop, which tends to disappear on your last day.
The Fair Work Commission's website links to free legal advice about unfair dismissal for people who are eligible.
This is general information, not legal or financial advice.
Sources
- Fair Work Act 2009, section 386, Meaning of dismissed (wording as quoted in [2013] FWC 3941)
- Fair Work Commission, Forced resignation (the test, burden of proof, heat of the moment resignations, case examples)
- Fair Work Commission, Unfair dismissal, can you apply? (demotion, minimum employment period, when a dismissal takes effect, extensions, legal advice, application fee)
- Fair Work Commission, High income threshold ($190,100 and $183,100, what counts as earnings)
- Fair Work Commission, General protections applications involving dismissal
- Fair Work Ombudsman, Unfair dismissal (eligibility, 21 days, free legal advice for eligible people)
- Fair Work Ombudsman, Dismissal (constructive dismissal definition, demotion)
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