What is a constructive dismissal?
An employee has experienced constructive dismissal if they had no other choice other than to resign because of action taken by the employer.
The threshold for succeeding in a constructive dismissal case is high and generally very difficult to prove.
Workplace investigations and allegations of constructive dismissal
At JFM LAW we have seen many situations, where employees who are subject to a workplace investigation and are at risk of termination, resign before the investigation concludes. The employee then alleges that they were forced to resign because of unreasonable action taken by the employer. But can an employee really rely on a workplace investigation as evidence in an unfair dismissal application alleging constructive dismissal?
A recent case on constructive dismissal
The Fair Work Commission has reinforced the principle that an employer acting reasonably in carrying out a workplace investigation and an employee’s subsequent resignation cannot be construed as constructive dismissal or a forced resignation.
On 21 February 2020, the Fair Work Commission passed down its judgment in the case of Jodie Moore v Woolworths Group Limited T/A Big W  FWC 963. Ms Moore (‘the employee’) lodged an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) alleging that the end of her employment with Woolworths Group Limited T/A Big W (WGL) was a dismissal that was harsh, unjust or unreasonable.
The Facts – Workplace investigation and a Notice to Show Cause
The employee was subject to a workplace investigation into allegations of safety breaches.
After 2 days the employee was suspended with remuneration during a workplace investigation and was invited to show cause as to why she should not be terminated.
The employee tendered her resignation prior to the finalising of the investigation, claiming that she was constructively dismissed pursuant to s 386(1)(b) of the Fair Work Act, which states that: “the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
The Fair Work Commission held that an employer who communicates their intention to terminate an employee in a workplace investigation is not enough on its own to evidence constructive dismissal because there is no element of compulsion.
It was held that the employee decided to ‘jump before she was pushed’, and according to the facts, was not constructively dismissed under s 386(1)(b).
If you require any advice on dealing with an unfair dismissal application that alleges forced resignation, or constructive dismissal please do not hesitate to contact JFMLAW on (02) 9199 8597 or via email on firstname.lastname@example.org.