The resignation of freshly-appointed Essendon Football Club CEO, Andrew Thorburn, within 24 hours of announcing his commencement has garnered an explosion of media commentary, both in social and print forms.
Since the announcement, discussion topics such as lawful/unlawful termination, due process and discrimination have proliferated across social media platforms. Of particular interest is the topic of potentially forced resignations and discrimination under the general protections of the Fair Work Act 2009 (Cth). So, what constitutes forced resignation and discrimination/unlawful adverse action under the Fair Work Act?
Even where an employee resigns (rather than being dismissed by the employer), they may still have been subjected to unlawful adverse action if their resignation was due to conduct or a course of conduct by the employer. This is often known as 'constructive dismissal'.
An employer needs to consider the actions, proposed actions and discussions that occurred between the employer and the employee, leading to the employee's resignation. If the employer threatened the employee with dismissal unless they resign, this will clearly be a forced resignation (or 'constructive dismissal'), which amounts to dismissal by the employer at law.
Discrimination is addressed within the general protections provisions of the Fair Work Act. Under...
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