Can an Employer Turn Your Resignation Into a Dismissal? Understanding General Protections Under the Fair Work Act
- Brian AJ Newman, LLB
- 4 days ago
- 5 min read
By MYUNION – Employment & Human Rights Advocates
One of the most common misconceptions we hear is:
“I resigned, so I don’t have any rights anymore.”
That simply isn’t true.
While resigning voluntarily usually ends the employment relationship, what an employer does after receiving a resignation can still have significant legal consequences under the Fair Work Act 2009 (Cth).
Recently, we considered a fictional scenario that highlights how quickly an ordinary resignation can evolve into a potential General Protections dispute.
A Fictional Example
Imagine a graduate accountant employed by a consulting firm.
After only a short period of employment, they become increasingly concerned about excessive workloads, poor supervision, conflicting instructions and what they believe to be an unhealthy workplace culture.
Rather than simply walking out, they decide to resign professionally.
They submit a written resignation providing the four weeks’ notice required by their employment contract and make it clear they are committed to assisting with a proper handover of clients and projects.
Everything appears straightforward.
Until the following morning.
The employer immediately disables the employee’s email, removes all access to company systems and advises that their services are no longer required.
At that stage, the employee reasonably assumes one of two things has occurred:
they have been placed on gardening leave; or
the employer intends to pay them in lieu of working their notice period.
Neither explanation is unusual.
The employee politely asks when their final pay, accrued leave, payslip and notice payment will be processed.
Instead of answering the question, the employer responds several days later claiming—for the first time—that the employee had actually been dismissed for serious misconduct and therefore is not entitled to notice.
No investigation had previously been mentioned.
No allegations had been put to the employee.
No opportunity to respond had been provided.
Only after the employee requested payment of their lawful entitlements did allegations of misconduct emerge.
Could that create legal issues?
Potentially.
Resigning Does Not Mean You Lose Your Workplace Rights
Many employees mistakenly believe that once they resign, the Fair Work Act no longer protects them.
That is incorrect.
Employees continue to possess workplace rights during their notice period and while their employment relationship is coming to an end.
Those rights include making inquiries about:
unpaid wages;
annual leave;
notice entitlements;
superannuation;
employment conditions;
workplace complaints; and
rights arising under workplace laws.
The Fair Work Act specifically protects employees from adverse action because they have exercised, or propose to exercise, those workplace rights.
What Is a Workplace Right?
Section 341 of the Fair Work Act defines workplace rights broadly.
An employee generally has a workplace right if they:
are entitled to a benefit under workplace laws;
are able to initiate or participate in a workplace process;
are able to make a complaint or inquiry regarding their employment; or
exercise rights arising under industrial instruments or legislation.
Importantly, asking an employer:
“When will I receive my lawful entitlements?”
may itself constitute exercising a workplace right.
Employees should never assume that requesting wages or statutory entitlements is somehow inappropriate or disloyal.
What Is Adverse Action?
Part 3-1 of the Fair Work Act prohibits employers from taking adverse action because an employee exercised a workplace right.
Examples of adverse action include:
dismissing an employee;
injuring an employee in their employment;
altering an employee’s position to their prejudice;
discriminating between employees; or
threatening action because an employee exercised workplace rights.
One of the most important features of General Protections claims is the reverse onus of proof.
Once an applicant establishes facts capable of supporting the allegation that adverse action occurred for a prohibited reason, section 361 requires the employer to prove that those prohibited reasons were not a substantial and operative reason for the decision.
This reverse onus is one of the most significant differences between General Protections applications and unfair dismissal claims.
Timing Can Become Powerful Evidence
Employment disputes are often decided by documents rather than memories.
Imagine a timeline like this:
Day 1
Employee resigns.
Day 1
Employer accepts the resignation, disables access and instructs the employee not to return.
Day 3
Employee requests payment of wages and contractual entitlements.
Day 15
Employer first alleges serious misconduct.
That chronology does not automatically prove unlawful conduct.
However, it may become highly relevant when a court or the Fair Work Commission examines why certain decisions were made.
Contemporaneous evidence such as emails, payroll records, Teams messages, text messages, access logs and diary notes often become the most persuasive evidence available.
Can an Employer Simply Allege Serious Misconduct Later?
Not every allegation of serious misconduct is genuine.
Equally, not every allegation made after resignation is false.
Serious misconduct is defined by the Fair Work Regulations 2009 and generally involves conduct that is fundamentally inconsistent with continuing the employment relationship.
Examples include:
theft;
fraud;
assault;
serious safety breaches;
intoxication at work in some circumstances; or
deliberate conduct causing serious and imminent risk.
Employers are entitled to investigate genuine allegations.
However, if allegations only arise after an employee seeks payment of lawful entitlements, the timing may become an important factual issue in later proceedings.
Final Pay Is Still Important
Even where parties disagree about why employment ended, employers remain subject to obligations regarding:
payment of wages;
accrued annual leave;
superannuation;
payslips;
employment records; and
other statutory obligations.
A dispute about notice or alleged misconduct does not necessarily remove those obligations.
General Protections vs Unfair Dismissal
Many people immediately think about unfair dismissal.
Sometimes that is the correct avenue.
Sometimes it is not.
The Fair Work Commission’s General Protections Benchbook makes clear that these jurisdictions involve completely different legal tests.
An unfair dismissal claim focuses on whether a dismissal was harsh, unjust or unreasonable.
A General Protections claim focuses on whether adverse action was taken because an employee exercised a protected workplace right or possessed another protected attribute.
In some circumstances, an employee may not even qualify for unfair dismissal because they have not completed the minimum employment period, yet they may still have access to the General Protections jurisdiction if the statutory requirements are met.
Every Case Depends on Its Own Facts
No two employment disputes are identical.
Small differences can completely change the legal outcome.
Important questions often include:
What did the resignation actually say?
Did the employer accept the resignation?
Was the employee directed not to work?
Was payment in lieu of notice authorised by the contract?
When were misconduct allegations first raised?
Was procedural fairness provided?
When were workplace rights exercised?
What do the contemporaneous documents actually show?
The answers to those questions frequently determine whether an employee has a viable claim.
Time Limits Matter
One of the biggest mistakes employees make is waiting too long.
For dismissal-related General Protections applications, strict statutory time limits apply.
Obtaining advice early preserves options and allows evidence to be collected while documents and witnesses remain available.
Waiting until months later often makes an already difficult case significantly harder.
The MYUNION View
At MYUNION, we regularly assist workers who believe they have “no case” simply because they resigned.
Sometimes they are right.
Sometimes, however, the evidence reveals something very different.
If an employer changes its explanation after a resignation, withholds lawful entitlements, or takes adverse action after an employee exercises workplace rights, it is worth obtaining independent advice before assuming there is nothing that can be done.
Every workplace dispute turns on its own facts, but understanding your rights is always the first step.
Need Help?
If you’re facing a workplace dispute, dismissal, adverse action, unpaid entitlements, discrimination, bullying or sexual harassment, MYUNION can assess your situation and explain your options.
MYUNION – Employment & Human Rights Advocates
📞 1300 MYUNION (1300 698 646)
This article provides general information only. It is not legal advice. Every matter depends on its individual facts, evidence and applicable legislation.