Constructive dismissal claim to be heard at substantive hearing

The Commission has referred a claim for unfair dismissal to a substantive hearing to decide whether there was a dismissal and, if there was, whether that dismissal was unfair.

The applicant alleges that, while she accepts that she resigned as part of the settlement of a claim under the Worker’s Compensation and Injury Management Act 1981, she was ‘forced into resigning’ in such a way as to making the ending of her employment a ‘constructive dismissal’. The respondent argues that the resignation was ‘voluntary’ as part of the settlement of her worker’s compensation claim.

Commissioner Matthews noted the presence of some unusual circumstances about which the applicant had given evidence on.  Commissioner Matthews discussed the possibility that the respondent, by its conduct, orchestrated a situation where the applicant had no real choice but to resign.

The application was also filed out of time. The respondent did not wish to be heard at the preliminary hearing on whether the Commission should act under s 29(3) Industrial Relations Act 1979, which allows the Commission to accept a referral by an employee that is out of time if the Commission considers that it would be unfair not to do so.

Commissioner Matthews will determine the issues of jurisdiction and the s 29(3) Industrial Relations Act question at the substantive hearing.

The decision can be read here.