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Constructive Dismissal

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

Constructive dismissal cases are rarely straight-forward. Before filing a claim, you should be well informed about the issues involved. You should read this infosheet along with JobWatch’s “Unfair Dismissal”, “General Protections Dispute” and “Notice of Termination” infosheets which give you information on how to make a claim. You should also obtain legal advice about your specific situation before leaving your job.

Constructive dismissal means that even though your employer did not say you were fired, the employer’s behaviour forced you to leave your employment. In this situation the termination of your employment may be at the initiative of the employer.

If your employer tells 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 sacked”, but may still force an employee to leave because of the things the employer says, 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 argument is put as part of an Unfair Dismissal or General Protections Dispute Termination Claim or as part of a claim for pay instead of notice of termination. An Unfair Dismissal Claim or a General Protections Dispute Termination Claim must be filed at the Fair Work Commission (FWC) within 21 days of a termination of employment taking effect.

You have up to 6 years from the date your notice fell due to file an underpayments claim at an eligible Court.

Not all employees are eligible to make an Unfair Dismissal Claim. See JobWatch’s “Unfair Dismissal” infosheet to check if you are eligible to make a claim.

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 does not mean that you will succeed with a constructive dismissal claim. It is a high threshold to show that your employer’s conduct fundamentally damaged the employment relationship between you and the employer for the purpose of a constructive dismissal claim. If you are considering leaving your employment because of your employer’s conduct, you should first obtain legal advice about the likelihood of making a successful claim.

There are four key things you should do when you want to argue constructive dismissal:

  1. Keep a diary
  2. Act quickly – put your concerns in writing
  3. Seek legal advice
  4. Tell your employer in writing why you are leaving

For more information about constructive dismissal, important actions you should take, and your rights, download the 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.

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