Big changes to constructive dismissal claims under general protections

This change is specific to general protections claims — not unfair dismissal

Constructive dismissal, sometimes called forced resignation, is when you resign, but only because your employer left you no real choice — through relentless pressure, a fundamental breach of your contract, or conditions that made staying untenable. When that situation is raised as part of a general protections claim — for example, where the alleged forced resignation followed you exercising a workplace right, or was connected to discrimination — a specific and significant procedural hurdle has just been removed.

The old roadblock: proving you were dismissed before anything else could happen

Previously, before a general protections dismissal dispute could even reach conciliation, an employee alleging constructive dismissal effectively had to first establish that a "dismissal" had occurred at all — a genuine threshold issue, since on paper the employee had resigned. This was a massive roadblock. It meant employees could be tied up arguing a technical, preliminary question for months, before the substance of their case — what actually happened at work — was ever properly discussed.

What's changed

The change applies specifically to general protections claims in which the employee alleges they were constructively dismissed. These claims can now proceed straight to conciliation, where the parties attempt to resolve the dispute through mediation, without the employee first having to establish that a dismissal occurred as a gateway issue.

What happens if conciliation doesn't resolve it

If the dispute isn't resolved at conciliation, the employee can proceed to the Federal Circuit and Family Court of Australia, where the matter — including the question of whether a dismissal occurred — can be argued and determined by the Court as part of the substantive proceeding. This is a genuine court process, distinct from the conciliation stage, and carries its own procedures, timeframes, and cost implications.

What this means for you

• Your claim can reach the negotiating table faster, without a lengthy threshold fight over jurisdiction;
• You will still need to establish the substance of your general protections claim, and that your resignation was genuinely forced;
• Strict time limits still apply to lodging a general protections dismissal dispute, so acting quickly remains essential; and
• If conciliation doesn't resolve the matter, you're looking at a court process in the Federal Circuit and Family Court of Australia — a step that carries real strategic and cost considerations.

This article is general information only and does not constitute legal advice. Whether your resignation amounts to a constructive dismissal, and whether a general protections claim is available to you, depends heavily on your specific circumstances — speak with one of our employment lawyers as soon as possible about your situation.

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