“I need help! I have been forced to resign from my job!” These were the words my client opened our meeting with. She was visibly distressed and anxious.
She proceeded to tell me about how she had worked for her employer for over 23 years. It was a job she loved and was extremely passionate about. She had every intention to see out the rest of her professional working career with the company.
Never in her wildest imagination did she think it would so abruptly come to an end – but unfortunately, that is exactly what happened. She had been forced to resign.
Upon her arrival to work one Monday morning, her boss called her into her office and handed her a piece of paper. The letter was headed “Resignation of Employment.” As she read these words, she felt her heart skip a beat.
The letter went on to say, “I hereby tender my resignation of employment, effective immediately.” Below these words, was a space for her to sign her name, confirming her so-called voluntary resignation of employment.
Perplexed, she looked up at her boss looking for some form of explanation. Surely, this was a mistake? Her boss handed her a pen and said “I’m sorry, I need you to sign this or otherwise the company won’t pay you your entitlements. Please don’t make this any harder than it needs to be.”
Before she knew it, she was gathering her things and leaving the office for the very last time. Her employment was at an end.
What does “forced resignation” even mean?
It might seem obvious but there is a difference between a voluntary resignation and a forced resignation. In lawyer speak, a forced resignation is often referred to as a ‘constructive dismissal’.
To constitute a voluntary resignation, an employee needs to freely, of their own will, demonstrate an intention to cease their employment. A forced resignation on the other hand, occurs where an employee has no real choice but to resign, because of the conduct or course of conduct engaged in by the employer.
Another way of looking at it is that the termination of employment has been brought about at the initiative of the employer.
This might sound straight forward, but in practice, the distinction between a voluntary resignation and a forced resignation is not always so easy to establish.
It’s also important to be aware that the obligation is on the employee to prove that they were forced to resign. Proving constructive dismissal is often a challenge.
What does forced resignation look like?
If an employee does not provide a clear and unmistakable resignation, then the question must be asked, was it truly voluntary?
Some examples of where a dismissal may be forced include:
- Heat of the moment resignations – where an employee resigns under extreme pressure or special circumstances, but when the moment passes, they clarify that they do not wish to resign but their employer refuses to let them stay on.
- Potential resignations in the future – where an employee tells their employer they plan to resign at some stage in the future and the employer jumps on it too early without checking the facts.
- Failure to pay wages – if an employer is failing to pay minimum wage entitlements and the employee resigns because of the continued underpayment.
- Coercion – if an employer coerces or threatens an employee to resign against their will. Putting a pen in your hand and standing over you to make sure you sign would be a good example.
What a forced resignation does NOT look like:
Just as there are many examples of what a forced resignation does look like, there are equally as many examples of what it is not.
- Resignation to avoid disciplinary action – if an employee resigns as a means to avoid a performance management or disciplinary process for poor performance or conduct.
- Jumping to incorrect conclusions – misinterpreting events or communications happens a lot, and means that what might look like a forced resignation might not necessarily be the case.
Each situation ultimately needs to be assessed on its own facts. If your employment is still on foot but you believe your employer is trying to force you to resign, it is important to act fast and get advice from an employment lawyer so you know where you stand.
What you should do if you have been forced to resign?
Thankfully in my client’s case, she acted fast. We were able to identify that she had been constructively dismissed and took swift action to protect her legal rights.
While the relationship with her employer was not likely to be repaired, she was able to find her voice, get what was fair, and move forward with confidence.
You may be eligible to file an unfair dismissal application or general protections application depending on how the facts fall. In other instances, the facts might suggest a breach of contract has occurred.
Each case is different but one thing remains the same – you deserve to find your voice in the workplace. You deserve to be treated fairly and justly.
If something doesn’t seem right about your employment, you deserve to find out what your rights are.
Please Contact Us at Rubix Legal and talk to a legal expert for guidance on how to move forward.