Constructive dismissal requires a serious breach of the employment contract by the employer, not just doing something the employee finds challenging

Application to deal with contraventions involving dismissal – jurisdictional objection – whether the applicant was dismissed from her employment – forced resignation – complaint by the applicant of bullying and sexual harassment by co-workers – alleged failure by the employer to take steps to resolve complaints said to have left the Applicant with no choice but to resign – no process failure by the employer – no conduct by the employer that caused the applicant to resign – applicant not an employee who was dismissed – application dismissed.

In the application and related material, the applicant, Ms J, referred to resigning in the heat of the moment.  However, the evidence did not support that Ms J was in such a state of emotional stress or mental confusion that her resignation email did not convey a real intention to resign.

Ms J did not resile from her decision to resign, either shortly after sending her resignation email or at any stage. Furthermore, by the time Ms J sent her resignation email, she had been considering whether to resign for at least 24 hours.

The crucial question in constructive dismissal cases is,

Did the employer engaged in conduct that:  

• had the intention of causing Ms J to resign; or
• probably would cause Ms J to resign; or
• left Ms J with no real choice but to resign.

Viewed objectively, the employer (through Ms C and Ms H) did not engage in any conduct that could be understood to have intended to cause Ms J to resign, or conduct that would have probably caused her to resign, or conduct that left Ms J with no real or effective option but to resign.

Ms J’s application for relief from unfair dismissal was dismissed.