Can You Claim Unfair Dismissal If You Resign?

Yes, you can claim unfair dismissal even if you resign, provided you were effectively forced to leave because of your employer’s actions. This is legally known as “constructive dismissal.” It applies when your employer’s conduct is so severe that it leaves you with no reasonable choice but to resign.

If you’re reading this, you’re likely facing an impossible situation at work. Perhaps your boss is making your life miserable, your duties have been stripped away, or the workplace has become so toxic that you dread each morning. You’re considering resignation, but you’re worried about losing your rights to claim unfair dismissal.

This guide will help you determine if you have a case, decide your best course of action, and understand exactly how to protect your rights under Australian employment law.

Am I Being Forced to Resign? The Constructive Dismissal Test

If you feel you have no other choice but to leave your job due to your employer’s actions (or inaction), you may have been constructively dismissed. This self-assessment checklist can help you determine if your situation might qualify.

The Assessment Checklist

Work through each question carefully:

• My employer has significantly reduced my pay or status without my consent. (Y/N)
• My duties have been drastically changed, amounting to a demotion. (Y/N)
• I am being subjected to bullying, harassment, or discrimination that my employer is not addressing. (Y/N)
• My employer is demanding I accept unreasonable changes to my work location or hours. (Y/N)
• My employer has made false accusations against me or started an unfair disciplinary process. (Y/N)
• My employer has created a hostile or unsafe work environment. (Y/N)
• My employer has breached a fundamental term of my contract. (Y/N)

Interpretation Guide

If you answered “Yes” to one or more questions: You may have grounds for a constructive dismissal claim. The more “Yes” answers, the stronger your potential case.

If you answered “No” to all: A claim may be difficult. Resigning voluntarily due to general dissatisfaction is typically not considered dismissal.

Action Plan: Immediate Next Steps

1. Do Not Resign Yet: Before you do anything, gather evidence.
2. Document Everything: Start a private journal (not on a work computer) detailing dates, times, events, and who was present. Save relevant emails and messages.
3. Review the Eligibility Rules: Check Section 4 below to ensure you meet the minimum employment period and salary cap.

Should I Resign or Wait? A Strategic Comparison

Waiting to be formally dismissed often creates a simpler legal case, but resigning due to intolerable conditions (constructive dismissal) can also be a powerful claim if you have strong evidence. The best choice depends on your evidence and tolerance for risk.

Best For:

Resigning is better if: Your health (mental or physical) is at risk, and you have clear, documented evidence of your employer’s serious misconduct.

Waiting is better if: You lack strong evidence of being forced out, and you want to place the burden of proof squarely on your employer.

How to Resign and Build a Constructive Dismissal Case: 5 Steps

To resign and claim constructive dismissal, you must first gather irrefutable evidence of your employer’s conduct, then write a resignation letter that clearly states you are leaving because of their actions, not voluntarily. You must act quickly and follow strict legal timelines.

Step-by-Step Process

Step 1: Gather Your Evidence Before resigning, collect emails, performance reviews, witness details, and journal entries that prove the intolerable situation. Screenshot messages, save voicemails, and document patterns of behaviour.

Step 2: Raise a Formal Grievance (If Possible) Giving your employer a chance to fix the problem can strengthen your case. If they ignore it, this becomes powerful evidence. Send your grievance in writing and keep a copy.

Step 3: Write a “Forced Resignation” Letter Do not write a standard two-weeks notice. State clearly that you consider yourself to have been constructively dismissed due to specific actions. For example: “I am resigning in response to the company’s failure to address the ongoing harassment I have faced, which has made my position untenable.”

Step 4: Lodge Your Unfair Dismissal Application You must file with the Fair Work Commission within 21 days of the resignation taking effect. This deadline is absolute – no exceptions.

Step 5: Seek Professional Legal Advice This process is complex. An employment lawyer from Fair Workplace Solutions can assess the strength of your case and represent you at the Fair Work Commission.

Try This Now

1. Open a new document on your personal computer right now.
2. Write down the last three incidents that made you feel forced to leave. Include dates and details.
3. Find your employment contract and check your job description.
4. Email these documents to your personal email address for safekeeping.

Common Mistakes to Avoid

Mistake: Resigning in the heat of the moment without evidence.
Solution: Never quit on the spot. Go home, cool down, and document everything first.

Mistake: Writing a polite, generic resignation letter.
Solution: Your letter is a key piece of evidence. It must state you are being forced out.

Mistake: Assuming HR will help you.
Solution: HR works for the company. Get independent advice from Fair Workplace Solutions.

Unfair Dismissal Eligibility: The 3 Rules You Must Meet

To be eligible for an unfair dismissal claim in Australia, you must have completed a minimum employment period, earn under the high-income threshold, and file your application within 21 days of dismissal.

The Eligibility Rules

1. Minimum Employment Period You must have worked for at least:

• 6 months if your employer has 15 or more employees
• 12 months if your employer is a small business with fewer than 15 employees

2. High-Income Threshold You must earn less than the high-income threshold$183,100 as of July 1, 2025, , unless you are covered by a modern award or enterprise agreement. If you’re covered by an award or agreement, the threshold doesn’t apply.
3. The 21-Day Deadline You have exactly 21 calendar days from the date your dismissal/resignation takes effect to lodge your claim. This deadline is strict. The Fair Work Commission can only grant extensions in exceptional circumstances.

Key Takeaway Box

The 21-day deadline is the most critical factor. Even with a perfect case, you will lose your right to claim if you miss it. Calculate your deadline date immediately. If your resignation takes effect on a Monday, you must lodge by the Monday three weeks later.

What Happens Next?

If you decide to proceed with a constructive dismissal claim:

1. Conciliation: The Fair Work Commission will first attempt to resolve the matter through conciliation – a confidential discussion between you and your employer.
2. Potential Outcomes: If successful, you might receive:
   • Reinstatement to your position
   • Compensation (capped at 26 weeks’ pay)
   • An apology or statement of service
3. Success Rates: While constructive dismissal cases are harder to prove than standard unfair dismissal, they can succeed with strong evidence and proper documentation.

The Bottom Line

Being forced to resign is one of the most stressful experiences you can face in your career. But Australian law recognises that resignation isn’t always voluntary. If your employer has made your working life intolerable, you may have rights even after resigning.

The key is to act strategically, document thoroughly, and never miss that 21-day deadline. Whether you choose to resign or wait, make sure you’re making an informed decision based on evidence, not emotion.

Remember: This article provides general information only. Every situation is unique, and employment law can be complex. For advice specific to your circumstances, contact the employment lawyers at Fair Workplace Solutions.