Can I still bring an Unfair Dismissal or General Protections claim if I have resigned due to bullying?

Most people tend to think of being dismissed as involving an employee losing their job at the initiative of their employer, but this is not always the case. Under s.386(1)(b) of the Fair Work Act 2009, an employee can be dismissed where they were forced to resign because of the actions, or inactions, of their employer – commonly known as constructive dismissal. A high threshold exists for constructive dismissal claims, so seek advice from an employment lawyer if you are unsure whether these circumstances apply to you.

The case of Mr Billy Muhinyuza v Teys Australia Beenleigh Pty Ltd[1] demonstrates how constructive dismissal can arise in a situation where an employee resigns following bullying.

In this case, the Applicant commenced employment with the Respondent on 30 July 2017 and resigned on 23 September 2019. The Applicant lodged an unfair dismissal application, citing his resignation as being forced by the bullying, harassment, and discrimination he experienced at the hands of his supervisor and co-worker. Such bullying included:

• repeatedly faulting the Applicant for his work;
• timing the Applicant when he went to the toilet; and
• racially abusing the Applicant. 

The Applicant continually raised these issues with HR and the shift manager, who failed to take appropriate action and escalate the issues as required. As a result of his experiences, the Applicant’s mental health was strained to the point he requested to take two weeks of leave from work. Due to the Respondent’s inaction, the Applicant felt his only option was to resign because he no longer felt safe at his workplace.

This case highlights that in situations of significant bullying where the employer’s conduct can be characterised as ‘negligent, careless or incompetent’, constructive dismissal can be found to have occurred. The expectations placed on an employer regarding how they handle a bullying complaint will depend upon the facts of each situation. In the case of Mr Billy Muhinyuza v Teys Australia Beenleigh Pty Ltd, the gravity of the bullying experienced by the Applicant was intrinsically linked to what was expected of the Respondent. Here, the bullying was extremely serious, relating to issues of racial discrimination. The Applicant’s co-worker had said “You are black… I don’t want you working here”, which his supervisor laughed at. 

Failing to appropriately investigate and deal with such serious allegations, especially concerning those in a position of power, can amount to conduct which is ‘negligent, careless or incompetent.’ Additionally, the processes employed in dealing with such allegations, such as the method utilised in informing an employee about the outcome of the complaint made, can affect this. When an employee expresses a wish to resign after having made complaints concerning bullying, it might be the case that their employer needs to assist them by providing alternative options. Options could include offering further leave or access to an Employee Assistance Program. 

All factors need to indicate that an employee had no real option other than to resign. It needs to be considered whether there was a course of conduct by the employer that, objectively viewed, would have the ‘probable result of bringing the employment relationship to an end’. Could the employee’s resignation be avoided had the employer taken reasonable steps? This situation needs to be carefully considered against a situation where an employee is leaving an unpleasant work environment.

[1] Mr Billy Muhinyuza v Teys Australia Beenleigh Pty Ltd [2020] FWC 2996.