Unfair Dismissal – v – General Protections
Upon termination, an employee may lodge an application to the Fair Work Commission (FWC) for either Unfair Dismissal or General Protections involving dismissal. It is vital to understand the difference between these two causes of action and the eligibility criteria behind each claim. Although both involve dismissal, the requirements differ significantly including the jurisdiction and onus of proof.
When Resignations Become Dismissals
Generally, if an employee resigns from their employment they cannot later sue for unfair dismissal. However, in certain circumstances, an employee’s resignation may be deemed a dismissal in what is known as a forced resignation or a constructive dismissal. Under section 386(1)(b) of the Fair Work Act 2009 (Cth) (the Act), the definition of dismissal will extend to circumstances in which the employee resigned from their employment, but was forced to do so due to conduct or a course of conduct engaged in by their employer. Whether an employee was forced to resign will depend upon a variety of factors and the particular facts of the matter.