Case Review: When a resignation is not a dismissal: what the Fair Work Commission decided in Box v Region Operations

A recent decision of the Fair Work Commission provides a detailed and important reminder that not every difficult or disappointing workplace exit will meet the legal definition of a dismissal.

In Ms Katie Box v Region Operations Pty Ltd [2025] FWC 3879, the Commission was required to determine a threshold issue: whether Ms Box had in fact been “dismissed” within the meaning of the Fair Work Act 2009, or whether her employment ended by way of a voluntary resignation. That question alone proved decisive.

The application was ultimately dismissed, not because the Commission rejected Ms Box’s account of her workplace experience, but because the legal test for dismissal was not satisfied.

Background to the dispute

Ms Box commenced employment with Region Operations Pty Ltd in October 2022 in a senior design and delivery role associated with shopping centre developments. Over time, her responsibilities expanded across multiple states, coinciding with a prolonged and unresolved restructure within the business.

Ms Box raised concerns about increasing workload, role uncertainty, workplace interactions with colleagues, and what she perceived as unmet commitments around progression and future opportunities. In May 2025, she resigned and later lodged an unfair dismissal application, describing her departure as a constructive dismissal.

The employer objected at an early stage, arguing that Ms Box had not been dismissed at all.

The legal issue: was there a dismissal?

Under section 386 of the Fair Work Act, a person is dismissed if:

• their employment is terminated on the employer’s initiative, or

• they resign, but were forced to do so because of the employer’s conduct or a course of conduct.

The second limb is commonly referred to as constructive dismissal, but the Commission emphasised that the label itself is not enough. The focus must remain on whether the resignation was truly “forced” in a legal sense.

Drawing on long-standing authorities, including O’Meara v Stanley Works and Bupa Aged Care Australia v Tavassoli, the Commissioner restated the core principles:

• the test is objective, not purely based on the employee’s feelings

• the employer’s conduct must either be intended to end the employment, or have that as its probable result

• the employee must have had no real or effective choice other than to resign

• dissatisfaction, stress, or disappointment alone will not convert a resignation into a dismissal.

What the Commission found

The Commission accepted that Ms Box was honest, earnest, and genuinely affected by her experience at work. It also accepted that her workload fluctuated, that the restructure was prolonged, and that uncertainty about future roles was unsettling.

However, the evidence did not establish that the employer intended to bring the employment to an end, nor that its conduct left Ms Box with no effective choice other than to resign.

Key findings included:

• the employer continued to express a desire to retain Ms Box

• senior managers acknowledged uncertainty but explained it as a consequence of an unresolved restructure, not a decision to remove her

• alternatives remained open, including continuing in her existing role while the restructure concluded

• the applicant herself articulated that her decision to leave was driven by loss of trust and unwillingness to wait any longer for certainty.

In the Commissioner’s words, Ms Box made “an informed and rational decision” about how long she was prepared to tolerate uncertainty. That decision, however understandable, did not amount to a forced resignation.

Why the application failed

Because the Commission found that Ms Box was not dismissed within the meaning of the Act, her unfair dismissal application could not proceed. The case did not move to questions of harshness, reasonableness, or procedural fairness.

This outcome highlights a critical but often misunderstood aspect of the unfair dismissal jurisdiction: if there is no dismissal, the Commission has no power to grant a remedy.

Broader significance for workers

This decision reinforces an important distinction that workers should understand:

• many resignations occur because of employer conduct, stress, or dissatisfaction

• only a narrow subset of those resignations will meet the legal threshold of being “forced”.

The Commission was careful to acknowledge that prolonged uncertainty and workplace strain can be deeply uncomfortable. However, the law draws a firm line between difficult employment circumstances and conduct that legally compels resignation.

Final observations

Box v Region Operations is a reminder that constructive dismissal is not established simply because a worker feels they have reached the end of their tolerance. The focus remains on whether the employer’s conduct objectively left no real alternative but resignation.

For unions, advocates, and workers alike, the decision underscores the importance of understanding how narrowly the dismissal gateway is applied in unfair dismissal proceedings.

Fair Work Commission decisions like this one continue to shape how resignation, restructuring, and workplace uncertainty are assessed under Australian employment law.