Recently, Resolution123 has heard that employees are being told that they need to resign because of COVID-19. Here are the facts. An employer cannot force you to resign. If they force you to resign, it’s what we call a “constructive dismissal” or just simply a forced resignation. Potentially, the same rules of protections around unfair dismissal apply to you, regardless of the fact you had resigned.
What Can I Do if I’ve Been Forced to Resign?
If an employer is threatening resignation, you need to push back and assert your work rights. Here are some of your options.
1. Ask Your Employer About the JobKeeper Payment
If your employer has experienced a downturn in work as a consequence of COVID-19, then by now they should have registered their business as interested in receiving the JobKeeper subsidy. If you don’t know whether they have received it, please ask them. You can read our full JobKeeper Factsheet here.
So if you’re being asked to accept a pay cut, have been stood down from your employment or have been recently terminated because of COVID-19, you should reach out to your employer to find out if they are eligible for JobKeeper and if they have registered their interest for the payment. For example, you can check if you can be reinstated if you’ve been stood down or been made redundant.
2. Take any accrued leave or reduce your hours
If you haven’t already done so, you might need to be prepared to take any accrued leave or unpaid leave during this period, as well as taking a cut in salary or hours.
3. Ask to be made redundant
If your employer is at the point where they cannot maintain your permanent employment, they can foresee that your job is not going to be required anymore. That is a redundancy situation, not a resignation situation.
If you are made redundant as a permanent employee, you are entitled to notice at the termination of your employment, redundancy pay and payout of any accrued leave.
There is also another good reason not to resign. Resignation might disqualify you from certain workplace entitlements. For example, in NSW, if you have been with your employer for more than five years but less than 10 years, resigning from your job means you’re not entitled to accrued long service leave. There are limited exceptions to this rule. But if you are made redundant, you are entitled to accrued long service leave.
Next Steps
You do not have to resign as a consequence of COVID-19. There are so many alternatives to resignation, and you should really explore all of them with your employer. Ultimately, if your employment has to be terminated, it should be terminated because of redundancy. If you have been forced to resign already, contact us today because you may be protected from unfair dismissal and we can help you.
Want to learn more? Contact us today.
