Unrealistic Workload leads to Constructive Dismissal

Mr Sathananthan (“the Applicant”) claimed he was being constructively dismissed from his employer (“the Respondent”) after being expected to work excessive hours well beyond his contractual terms. As this case will demonstrates, employers ought to be aware that resignation by an employee does not necessarily prevent an employee from making a successful unfair dismissal claim.


The Applicant made complaints to the Respondent during the course of his employment which included:

  • an excessive workload where the applicant regularly worked 70 hours or more each week;
  • the inadequate work performance of the Colleague with whom he worked;
  • his poor personal relationship with the support office; and
  • that his grievances about a Colleague had not been properly dealt with.

No formal findings were made by the Respondent regarding the Applicant’s complaints. The situation escalated around March 2019 as the Applicant suffered from health episodes including a panic attack due to the combined pressure of a Colleague’s negative behaviour towards him and his excessive workload. The Applicant subsequently tendered his resignation, which was accepted by the Respondent.

The Unfair Dismissal Application

The Applicant filed an Unfair Dismissal Application in the Fair Work Commission (“FWC”) claiming that he was forced to resign because of the Respondent’s insufficient handling of his complaints. The Respondent argued that there was no dismissal and contended that the resignation was not forced, and that the Applicant had resigned of his own freewill and volition. The Respondent submitted that on this basis, the FWC does not have jurisdiction to decide over the matter because there was no dismissal.

The FWC Decision

Was the Applicant Constructively Dismissed?

The FWC found that the Respondent had failed to recognise or deal with the Applicant’s complaints about his working hours, aspects of his allegations impacting his relationships the Colleague and had disregarded his health and well-being. Commissioner Hampton found that the “[Applicant] had no option but to resign from his position with [the Respondent]” even though the FWC noted that the Respondent “did not engage in a course of conduct with the intention of bringing its relationship with [the Applicant] to an end.”

The FWC acknowledged the ‘high threshold’ required for such a finding, but was satisfied that the combination of the events, the excessive workload, and the treatment of the Applicant’s concerns about the colleague was sufficient to establish that the Applicant had no choice but to resign and was constructively dismissed.

Was the Dismissal Unfair?

Once it was established that the Applicant was constructively dismissed, the FWC turned its mind to whether the dismissal was unfair.

The FWC held that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct. Furthermore, due to the nature of the constructive dismissal in this instance, through the Applicant’s forced resignation, the Applicant was found not to have been afforded the requisite procedural fairness such as: being notified of the reason for his dismissal, nor was he given an opportunity to respond to any concerns about his capacity or conduct. The FWC further held that it ought to consider the impact of the dismissal upon the Applicant given all of the circumstances, which was namely that he lost his employment without a valid reason for his dismissal.

It was determined that the Applicant that the dismissal was harsh, unjust and unreasonable and this unfair, and that $45,990.00 compensation was appropriate instead of reinstatement.


This case demonstrates the importance of treating employee complaints with respect to work and their co-workers seriously, timely and effective investigation of the same and taking action to resolve any issues.

It is important for employers to note that where employees are left with ‘no choice’ but to resign, employers can be found to have constructively dismissed the employee. The legal position is that if the employment relationship was brought to an end by the employer’s conduct, even though it was the employee who in fact resigned, the decision to resign can still be treated as a dismissal.

If you have any questions about constructive dismissal, or the unfair dismissal jurisdiction of the FWC more generally, please do not hesitate to contact Nick Stevens, Luke Maroney, Daphne Klianis or Josh Hoggett.

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