By A former Chief Growth Officer at A Team Tuition Australia has lost her bid to have the Fair Work Commission treat her resignation as a forced dismissal, according to HRD America. The executive, employed since November 2019 on a salary of $153,750 plus superannuation, resigned in April 2026 after spending 19 months on suspension and medical leave. The Commission ruled her departure was a resignation, not a sacking.
The case began in August 2024 when the CEO received a formal complaint from a Program Support Officer. Seven employees subsequently raised concerns about the executive’s behaviour, including allegations she shared a colleague’s confidential medical information, told staff to “shut the fuck up,” and described a sales team member as “useless.” The executive was suspended on full pay on 9 September 2024 after telling the CEO she was suffering work-induced anxiety, stress and burnout. She never returned to work, providing a series of medical certificates through to February 2026.
What counts as a forced dismissal under the Fair Work Act
Under section 386 of the Fair Work Act 2009 (Cth), a person is dismissed if their employment was terminated on the employer’s initiative, or if they resigned but were forced to do so because of the employer’s conduct. The forced resignation limb requires the employee to show the employer’s conduct left them with no real choice but to quit, and that the resignation was causally connected to that conduct.
The Fair Work Commission is the national workplace relations tribunal that determines these claims. An employee who resigns can still bring an unfair dismissal claim if they can establish the resignation was forced. The onus sits with the employee to prove the employer’s conduct was the operative cause of the departure. In this case, the executive argued the company’s requirement that she be medically fit before responding to the allegations created a catch-22 she described as “fitness gating.” The Commission rejected that characterisation, noting the company’s late January 2025 response to her dispute application gave her “a pretty good picture as to what the employer is concerned about.”
Why prolonged suspension and medical leave did not amount to dismissal
The executive’s core argument was that being suspended on full pay for 19 months, combined with the employer’s refusal to put the allegations to her until she was medically cleared, left her with no choice but to resign. The Commission found otherwise for several reasons.
First, the suspension was on full pay, and the executive was receiving income protection payments described as “very substantial,” covering “a very large percentage of the wages forgone.” Her insurer had pre-approved future monthly payments. When asked directly whether there was any economic need to resign in April 2026, she said: “There was no economic reason for resigning at that time.”
Second, the employer had communicated in writing that it would progress the investigation once she was fit. A CFO email in October 2024 stated the company would check her fitness after her certificate expired and “only once this occurs will we be in a position to put the allegations to you and progress the investigation.” The Commission found nothing improper in the suspension letter having been prepared on 5 September 2024, noting it had simply been held over from a postponed meeting.
Third, the executive never formally responded to the particulars of the allegations after the employer filed its response in late January 2025. When pressed on why, she said she had instructed her lawyer to respond but her lawyer “didn’t necessarily act on my instructions.” The Commission treated this as a significant gap in her case.
Practical implications for Australian employers
The decision reinforces several principles for employers managing long-term absent employees. A suspension on full pay, even one lasting many months, does not by itself constitute a dismissal. The Fair Work Act’s forced dismissal provision requires the employer’s conduct to have left the employee with no real choice. Where the employer keeps paying, communicates a clear process for return, and provides the substance of the allegations, the employee may struggle to show they were forced out.
Employers should document every step: the suspension letter, the allegations, the medical clearance requirement, and any offers to progress the matter once the employee is fit. The CEO’s September 2024 email telling the executive to “focus on & prioritise your wellbeing” was not held against the company. The CFO’s October 2024 email setting out the sequence for putting allegations was also treated as reasonable.
The case also shows the importance of responding to any Fair Work Commission application promptly and in detail. The company’s late January 2025 response, which laid out the substance of the employee complaints, became central to the Commission’s finding that the executive had enough information to respond.
What employees should know before claiming forced dismissal
Employees considering a forced dismissal claim must understand the evidentiary burden. The Fair Work Commission will examine whether the employer’s conduct was the operative cause of the resignation. Economic pressure is relevant: if the employee had no financial need to resign, as in this case, the claim is harder to sustain.
The 21-day time limit for lodging an unfair dismissal claim runs from the date the dismissal took effect. Where an employee resigns, the date is the resignation date. Employees who remain on suspension or medical leave for extended periods should consider whether they want to return, respond to allegations, or resign. Silence and inaction can undermine a later claim that the employer forced the departure.
The high income threshold also matters for senior executives. For 2025-2026, the threshold is $182,500, meaning the compensation cap for an unfair dismissal claim is $91,250. Employees above the threshold must show their dismissal was not a genuine redundancy and that they are covered by an award or enterprise agreement, or their claim may be barred.
| Stage | What the Commission considers |
|---|---|
| Was there a dismissal? | Did the employer terminate, or did the employee resign? Was the resignation forced? |
| Was the forced resignation causally connected? | Did the employer’s conduct leave no real choice but to quit? |
| Was the dismissal unfair? | Was there a valid reason, procedural fairness, and was the response proportionate? |
| Remedy | Reinstatement is primary; compensation is capped at 26 weeks’ pay or half the high income threshold |
The decision does not state any further appeals or next steps. Employers and employees should confirm the current high income threshold and procedural requirements with the Fair Work Commission or a qualified adviser, as figures change annually on 1 July.
Sources: HRD America
Photo: AmCyc Bridge - Suspension Bridge over the Ohio at Cincinnati by Unknown authorUnknown author, Public domain
