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3. THE FEDERAL SYSTEM (continued) |
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3.2 Who can make an unfair dismissal claim in the federal system? |
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You must have been dismissed
Termination of employment or dismissal is usually a clear-cut event that happens when your employer tells you that your employment is about to end.
Resignations are not generally considered dismissals. However, in some circumstances when a resignation is not voluntary, it can be considered a dismissal. Where your employer has done something that has forced you to resign or leave, the courts have described this as a termination 'at the initiative of the employer'. This type of dismissal is known as a 'constructive dismissal'.
Another form of constructive dismissal is demotion or change in job description without cause or negotiation. This happens when your terms of employment were significantly changed or your wages and/or hours significantly reduced.
"At the initiative of the employer" has been interpreted by the AIRC to mean "that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship". |
Examples of constructive dismissal
Peter was accused of theft and was told by his employer that although the matter of resignation was his decision, if he did not resign then the police would be called.
Karen received a letter advising her that she was no longer required as supervisor of the sales floor due to staffing levels. Without her agreement she was returned to the "shop floor" with a consequent reduction in her pay.
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