Constructive dismissal - jumped or pushed?

In a recent unfair dismissal case the Australian Industrial Relations
Commission has held that under WorkChoices employees who want
to argue they have been constructively dismissed have to prove, on
the balance of probabilities, that their “resignation” was forced by
their employer’s conduct.

Background
The employee was employed at a service station. When her car broke
down, making it very difficult for her travel to work for six to eight weeks,
she enquired about available positions in another related service station
closer to her home. She alleged that her employer indicated her job could
be transferred to the other service station if she resigned. When the
employer failed to arrange the transfer, the employee alleged this
amounted to constructive dismissal.

AIRC decision
The AIRC held that under WorkChoices an employee’s resignation will
only be found to be a constructive dismissal (that is a termination at the
initiative of the employer), if the employee’s resignation is shown to be
involuntary and forced by the employer’s conduct. The AIRC determined
that this test “does not necessarily embrace all the wider contextual
considerations” established in the Re Mohazab case (the leading constructive
dismissal authority prior to WorkChoices). The employee had argued that
the wider context of her resignation should be considered, such as her
naiveté in resigning and the unexpected consequences of her resignation.

The AIRC held that the employee was not forced to resign. At most, the
employee was offered help to find an alternative position at a more c
onvenient location. There was no guarantee that the employee would in
fact be provided with alternative employment.

Annette Megna v No 1 Riverside Quay (SEQ) Pty Limited,
PR973785 (24 August 2006)