Constructive Dismissal

This Fact Sheet discusses constructive dismissal. If your employer told you that you have been dismissed, it is very clear that the termination of your employment was at the initiative of the employer. However, in some cases an employer may not say ‘you’re fired’ but may still force an employee to leave because of the things the employer does or fails to do. That is, an employer may treat an employee so badly that their conduct fundamentally breaches the employment contract between the employer and the employee, leaving the employee with no reasonable option but to leave their employment. This is what is known as a ‘constructive dismissal.’

A constructive dismissal arises if you can show, on the balance of probabilities, that you did not leave your employment voluntarily but that you were forced to leave because of your employer’s conduct.

However, just because you may not like your employer’s conduct, that does not mean that you will succeed with a constructive dismissal argument. It is a high threshold to show that your employer’s conduct fundamentally damaged the employment relationship such as to be a  constructive dismissal.

You must be able to show that your employment was terminated ‘at the initiative of the employer,’ not because you decided to voluntarily resign.

A constructive dismissal argument may be put as part of an Unfair Dismissal, or General Protections Dispute Involving Dismissal, Discrimination or  Underpayments claim (for termination payments). Constructive dismissal is not a separate legal claim.

Constructive dismissal cases are rarely straight-forward. Before filing a claim, you should be well informed about the issues involved.

For more information about constructive dismissal, we recommend you download the ‘Constructive Dismissal’ Fact Sheet.

For further support

Call our Telephone Information Service on Melbourne Metro (03) 9662 1933 or Regional Victoria, Queensland and Tasmania on 1800 331 617.