What Is Considered a Constructive Dismissal?
Constructive dismissal occurs when your employer makes your working life so unbearable that you have no reasonable choice but to resign. It’s not about having a bad day at work or dealing with a difficult manager—it’s about a serious breach of your employment contract that fundamentally changes your position.
The key word is untenable. Your situation must be genuinely impossible to continue, not merely unpleasant.
The “Untenable Situation” Checklist
Before you make any decisions, assess your situation honestly. Tick any that apply to you:
- You’ve received an unjustified demotion or significant pay cut without your agreement
- Your core job responsibilities have been suddenly stripped away
- You’ve been publicly humiliated or berated in front of colleagues
- Your legitimate safety complaints have been dismissed or ignored
- You’ve been forced to transfer to an unreasonable location (e.g., adding 3 hours to your daily commute)
- Your employer has stopped paying you correctly or on time
- You’ve been excluded from meetings, communications, or decisions central to your role
- Your working hours have been drastically changed without consultation
- You’ve experienced sustained bullying that management refuses to address
- Your employer has fundamentally changed your employment terms without consent
If you’ve ticked three or more boxes, you may have grounds for a constructive dismissal claim. Continue reading to understand how to build your case properly.
What is Not Constructive Dismissal?
Not every frustrating workplace situation constitutes constructive dismissal. The Fair Work Commission sees many claims fail because employees confuse “unfair” with “unlawful.”
| Likely Constructive Dismissal | NOT Constructive Dismissal |
|---|---|
| Employer stops paying your wages | Employer gives you a fair but critical performance review |
| Demotion from Senior Manager to Junior Admin without cause | Being passed over for a promotion you wanted |
| Forced relocation from Sydney to remote WA with no consultation | Asked to occasionally work from a different office |
| Systematic exclusion from all team meetings and communications | Not being invited to optional social events |
| Employer ignores serious bullying complaints for months | Having a personality clash with a colleague |
| 50% pay cut imposed without agreement | Missing out on a discretionary bonus |
| Being given no work at all (“garden leave” without agreement) | Being given work you find boring |
The test is whether a reasonable person in your position would feel they had no choice but to resign. Personal dissatisfaction—even justified dissatisfaction—isn’t enough.
Your Immediate Action
Start a “Keep/Drop” incident list today. Every time something happens that feels wrong, write it down with the date, what occurred, and who witnessed it. This becomes your foundation if you need to take action later.
How Do You Prove Constructive Dismissal?
The burden of proof sits entirely with you. You must demonstrate two things: first, that your employer breached your contract in a serious way; and second, that you resigned because of that specific breach—not because you found a better job, had personal issues, or simply wanted to leave.
This is where most claims fall apart. Without documented evidence, it becomes your word against theirs.
The Workplace Incident Logbook
Create a systematic record of every relevant incident. Use this template for each entry:
Date/Time: [e.g., Friday 14 November 2025, 2:30pm]
Location: [e.g., Level 3 boardroom / Microsoft Teams call]
Incident Details: [Describe exactly what was said or done. Use direct quotes where possible. “Manager said: ‘If you don’t like it, there’s the door.'”]
Witnesses: [Full names and roles of anyone who saw or heard the incident]
Supporting Evidence: [Email chain dated 14/11, screenshot of Slack message, calendar invite showing meeting]
Action Taken: [Did you report this to HR? To your manager’s manager? If not, explain why—e.g., “HR manager is the person involved”]
Your Response: [What did you say or do? Did you object at the time?]
Keep this document on your personal device or in a personal email account—not on work systems where it could be accessed or deleted.
The Paper Trail Strategy
Step 1: Secure your evidence. Download or forward relevant emails, policies, your employment contract, and any written communications to a personal account. Check your employment contract for confidentiality clauses first—you can generally keep documents that relate to your own employment terms and treatment, but be cautious with commercially sensitive information.
Step 2: Put your objections in writing. Verbal complaints are nearly impossible to prove. Send a formal email to HR (or your manager’s supervisor if HR is involved in the problem) clearly stating: “I am writing to formally raise my concerns about [specific issue]. I consider this to be [describe why it’s unacceptable].” This creates a timestamp showing you didn’t accept the situation.
Step 3: Document meetings immediately. After any meeting where issues are discussed, send a follow-up email: “To confirm our discussion today, the following points were raised…” If they don’t correct your summary, it stands as a record.
Step 4: Keep records of impact. Medical certificates, psychologist notes, or GP visits related to workplace stress can support your claim that the situation was genuinely affecting you.
The Critical Mistake: Waiting Too Long
Warning: If you continue working under the new conditions for an extended period, the law may consider that you’ve “accepted” the breach.
This is called affirmation of contract. If your employer cuts your pay by 20% in January and you keep working without formal objection until November, a tribunal may find you accepted the new arrangement through your conduct.
You don’t need to resign immediately—but you must formally object promptly and clearly, and you should not give the impression that you’re content to continue indefinitely.
What To Do If You Feel You Are Being Pushed Out of Your Job?
Do not resign in the heat of the moment. A resignation shouted across the office during an argument won’t help your claim—and might actively hurt it. To pursue constructive dismissal, your resignation must be clearly connected to the breach, not to a momentary loss of temper.
The Grievance vs. Resignation Decision
If the breach is serious but potentially fixable (e.g., a manager’s behaviour that could be addressed), file a formal grievance first. This shows you gave the employer a chance to remedy the situation, which strengthens your position if they fail to act.
If the breach is fundamental and immediate (e.g., your employer has stopped paying you, demanded you do something illegal, or created an unsafe environment), seek legal advice before your next step. An employment lawyer can review your specific situation and advise whether resignation or another approach is best.
If you’ve filed grievances that went nowhere and the situation remains untenable, you may have grounds to resign and claim constructive dismissal—but only after you’ve documented everything.
Formal Grievance Letter Template
Send this via email so you have a dated record:
Subject: Formal Grievance – [Brief Description]
Subject: Formal Grievance – [Brief Description]
Dear [HR Manager/Relevant Person],
I am writing to formally raise a grievance regarding [specific situation—e.g., “the removal of my supervisory responsibilities on 15 November 2025 without consultation or justification”].
I consider this to be a breach of my employment contract because [explain why—e.g., “my role as Senior Team Leader explicitly includes supervision of three direct reports, and these duties have been removed without any performance concerns being raised or any consultation taking place”].
I have attached [relevant supporting documents—e.g., “my position description and the email from [Manager] dated 15 November advising me of this change”].
I request a formal meeting to discuss this matter and a written response within [reasonable timeframe—e.g., “10 business days”] outlining how this will be resolved.
Regards,
[Your name]
Constructive Dismissal Resignation Letter Template
If you’ve exhausted internal options and decided to resign, your resignation letter must explicitly state that you’re leaving due to the breach. A standard “thank you for the opportunity” resignation destroys your claim.
Subject: Resignation – Constructive Dismissal
Subject: Resignation – Constructive Dismissal
Dear [Manager/HR],
I am resigning from my position as [Job Title] effective immediately.
Please note that I am resigning solely due to [specific breach—e.g., “the unilateral 30% reduction to my salary implemented on 1 February 2025 and the subsequent removal of my core responsibilities”]. These actions have made my position untenable.
I consider this to be a constructive dismissal and reserve my right to pursue this matter through the Fair Work Commission.
Regards,
[Your name]
Critical: Send this via email (not just a printed letter) so you have proof of the exact wording and the date it was sent.
Can You Claim Constructive Dismissal If You Are Fired?
No. If your employer terminates your employment, that’s potentially an unfair dismissal—a separate legal process with different requirements. Constructive dismissal specifically applies when you resign because they made your position untenable. The two claims have different tests, different evidence requirements, and different remedies.
Is It Difficult to Prove Constructive Dismissal?
Constructive dismissal claims are statistically harder to win than standard unfair dismissal claims. The Fair Work Commission sees many cases fail because employees can’t prove the employer’s conduct was severe enough, can’t demonstrate they resigned because of the breach, or waited too long before taking action.
That doesn’t mean you shouldn’t pursue a legitimate claim—but you should go in with realistic expectations.
The Risk/Reward Assessment
Before deciding whether to proceed, consider these factors:
Your length of service matters. Compensation for unfair dismissal (including constructive dismissal) is capped at 26 weeks’ pay or half the high-income threshold—whichever is lower. If you’ve only worked somewhere for six months, your maximum payout is relatively modest. If you’ve been there 15 years, there’s more at stake.
Evidence strength is everything. Written evidence (emails, messages, documented policies) is far more powerful than “he said, she said” verbal accounts. If your case relies entirely on conversations with no witnesses, it will be significantly harder to prove.
Consider your financial position. Fair Work matters can take months to resolve. Can you sustain yourself without income during that period? Do you have savings, or will the stress of financial pressure add to an already difficult situation?
Factor in emotional cost. Pursuing a claim means reliving workplace trauma repeatedly—in statements, at conciliation, potentially at a hearing. Some people find this empowering; others find it re-traumatising. There’s no wrong answer, but be honest with yourself about what you can handle.
Australian Fair Work Commission: What You Need to Know
The 21-day deadline is strict. You must lodge your application with the Fair Work Commission within 21 calendar days of your dismissal taking effect (which, for constructive dismissal, is the date your resignation takes effect—not the date you submitted it). Extensions are granted only in exceptional circumstances, and “I didn’t know about the deadline” rarely qualifies.
Employers will defend themselves. Expect your employer to argue one of the “fair reasons” for their conduct: your capacity to do the job, your conduct, genuine redundancy, legal requirements, or “some other substantial reason.” Your evidence needs to counter these arguments.
Discrimination claims are different. If your constructive dismissal was based on discrimination—race, sex, age, disability, family responsibilities, pregnancy, religion, or similar protected attributes—you may have a General Protections claim instead of (or in addition to) constructive dismissal. General Protections claims have different rules and often higher potential compensation. Speak to a lawyer if discrimination is involved.
When to Get Legal Advice
Consider consulting an employment lawyer from Fair Workplace Solutions if: your situation involves potential discrimination, your employer is a large organisation with legal resources, significant money is at stake (long service, high salary), or you’re simply unsure whether you have a case.
Case Study: Mohammadi v ZIMEMO [2025] FWC 287
Fair Workplace Solutions recently represented an employee whose employer removed his system access and claimed he had “resigned” after he requested flexible working arrangements to care for his terminally ill child.
Result: The Fair Work Commission found the employer dismissed our client—not the other way around. The employer’s jurisdictional objection was rejected.
“No reasonable objective finding can be made that the Applicant resigned or intended to bring his employment to an end.”
— Commissioner Yilmaz
Facing a similar situation? Contact Fair Workplace Solutions for a confidential discussion about your options.
Key Takeaways
Constructive dismissal is a legitimate protection for employees forced out of jobs through employer misconduct—but it requires careful documentation, prompt action, and realistic expectations. If you believe you’re being pushed out, start your evidence log today, put objections in writing, and don’t resign until you’ve either exhausted internal remedies or sought professional advice.
This article provides general information only and is not legal advice. Employment situations are highly individual, and the outcome of any claim depends on specific facts. If you’re facing workplace issues, consider contacting the team at Fair Workplace Solutions for advice tailored to your circumstances.