When Is a Resignation Really a Dismissal? FWC Rejects “Forced Resignation” Claim Against Australia Post
Danielle Berry v Australian Postal Corporation [2026] FWC 3540
Fair Work Commission – Commissioner Durham – Brisbane – 16 September 2026
A new Fair Work Commission decision provides an important reminder that a difficult workplace situation, caring responsibilities, disagreement over leave, or even medical incapacity will not automatically convert a resignation into a dismissal.
In Danielle Berry v Australian Postal Corporation [2026] FWC 3540, the Commission dismissed a general protections application after finding that Mrs Berry had resigned voluntarily and had not been “forced to resign” within the meaning of s 386(1)(b) of the Fair Work Act 2009.
The practical lesson is significant:
Constructive dismissal requires compulsion. It is not enough that continuing employment became difficult, stressful or unattractive.
The employee must establish that the employer's conduct effectively left no real or effective choice other than resignation.
The Background
Mrs Berry commenced employment with Australia Post in November 2015 and ultimately worked as a Strategic Account Manager, Parcel Post & eCommerce Services.
Her position was based in Brisbane, although she lived on the Gold Coast.
Importantly, Mrs Berry was the parent of a child with a disability. Australia Post had approved a Flexible Work Arrangement allowing her to work from home four days each week, with Wednesday ordinarily being her office day. That arrangement commenced in April 2025 and was due to expire on 30 April 2026.
In early 2026, a series of issues arose involving:
long service leave;
carer's leave;
supporting evidence for leave;
attendance at customer meetings;
office attendance; and
Mrs Berry's caring responsibilities.
These matters ultimately formed the background to her contention that she had been forced to resign.
The Leave Dispute
In January 2026, Mrs Berry applied for long service leave.
The application was rejected because she had not yet satisfied the applicable eligibility requirements.
She then advised her manager that she intended to take carer's leave between 27 January and 27 February 2026 to support her son's transition to school.
Australia Post advised her on 30 January that the evidence provided did not satisfy the requirements of its personal leave policy and the enterprise agreement.
However, importantly for the later case, she was told she could:
provide additional supporting evidence; or
apply for another form of leave.
Because of the delay in communicating the decision, Australia Post nevertheless granted carer's leave for the preceding week.
That became highly relevant.
The Commission later rejected the proposition that Australia Post had simply refused to support her or left her with no available alternatives.
Performance Concerns Were Also Raised
On 5 February 2026, Mrs Berry's manager raised concerns that she was falling behind with customer meetings.
The Commission noted that a follow-up email recorded that they had agreed on a way forward.
Then, on 11 February, Mrs Berry did not attend the office because she had a paediatrician appointment for her son. Her one-on-one meeting with her manager was instead conducted by Microsoft Teams.
These events were relevant because Mrs Berry later characterised the circumstances as escalating adverse treatment associated with her caring responsibilities.
The Commission did not accept that characterisation on the evidence before it.
The Resignation
On 16 February 2026, Mrs Berry telephoned her manager and advised him that she had decided to resign.
According to the uncontested evidence, she explained that she needed to be at home to support her son and that resigning felt like a relief.
Her manager asked whether she wanted to discuss the situation before resigning.
She responded that she had already discussed the matter with her family over the weekend and had made her decision.
She then sent a formal resignation letter.
That letter stated that:
the decision was significant after 10 years with Australia Post;
her son's transition to school and associated care requirements meant she needed to prioritise her family;
the circumstances amounted to a “pressing domestic necessity”;
she sought payment of pro-rata long service leave;
she remained committed to supporting the transition of her portfolio; and
she was open to discussing an earlier departure or garden leave.
That written resignation proved highly important to the Commission's assessment.
What Happened After the Resignation?
During the notice period, Mrs Berry continued to dispute her long service leave and other entitlements.
Around 3 March 2026, she provided a medical certificate stating that she was unfit for work.
She then remained on paid personal leave for the remainder of her notice period, with employment ending on 11 May 2026.
The timing mattered.
The medical material relied upon as evidence of serious stress and inability to continue working was obtained after she had already resigned.
That weakened its value as evidence that Australia Post's conduct had forced the resignation itself.
The Legal Question: Was She “Dismissed”?
Mrs Berry brought a general protections dismissal application under s 365.
Australia Post raised a jurisdictional objection and argued that she had not been dismissed at all.
That meant the Commission first had to determine whether there had been a dismissal under s 386 of the Fair Work Act.
Section 386 recognises two relevant pathways:
Employer-initiated termination
The employer ends the employment.
Forced resignation
The employee resigns, but does so because they were forced to resign because of conduct, or a course of conduct, engaged in by the employer.
Mrs Berry relied on the second category.
The Onus Was on the Employee
The Commission confirmed that Mrs Berry carried the onus of proving that the resignation was not voluntary.
For that proposition, Commissioner Durham relied upon:
Australian Hearing v Peary [2009] AIRCFB 680
This authority supports the proposition that where an employee alleges that a resignation was actually a dismissal, the employee bears the burden of establishing that the resignation was not truly voluntary.
Practical meaning
An employee cannot simply state:
“I felt I had to resign.”
The evidence must establish that the employer's conduct actually created the compulsion.
The Line Must Be “Closely Drawn and Rigorously Observed”
The Commission also relied upon:
Doumit v ABB Engineering Construction Pty Ltd, Print N6999
as quoted in:
Jodie Moore v Woolworths Group Limited t/a Big W [2020] FWC 963
These authorities establish that the line between:
an employer effectively forcing an employee out; and
an employee deciding to resign because circumstances have become difficult,
is a narrow one that must be closely and rigorously observed.
That principle is extremely important in constructive dismissal matters.
In practical terms
The Commission is looking for something more than:
dissatisfaction;
stress;
workplace conflict;
disagreement with management;
an unfavourable leave decision;
performance management; or
personal circumstances making work difficult.
The issue is whether the employee was effectively compelled to resign.
“Forced” Means There Must Be Compulsion
Another authority relied upon was:
Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR973462
The Commission relied upon Megna for the proposition that the word “forced” in s 386(1)(b) is significant.
There must be an:
important element of compulsion.
Put simply, the employer's conduct must have effectively compelled the employee to resign.
That is a substantially higher threshold than proving that remaining employed had become inconvenient, undesirable or stressful.
Difficult or Unpleasant Does Not Automatically Mean Forced
Commissioner Durham also relied upon:
Celia O'Keefe v Ramsay Health Care Australia Pty Limited [2021] FWC 4796
That authority was used for an especially practical proposition:
Resigning to escape a difficult or unpleasant workplace situation does not amount to dismissal where the employee had other reasonable options available.
This became central to the outcome.
What Mrs Berry Alleged
Mrs Berry said Australia Post's conduct had made continued employment untenable.
She alleged that the employer had:
rejected valid medical documentation;
threatened to cease her pay;
questioned her son's disability;
denied carer's leave;
failed to provide alternative duties or support; and
subjected her to escalating adverse treatment connected with her responsibilities as the parent of a child with a disability.
She also relied upon medical evidence referring to mental illness and extreme stress.
Those allegations, if established in an appropriate case, could potentially be serious.
But allegations alone were not sufficient.
The Commission examined what the evidence actually showed.
The Commission Rejected the Key Factual Allegations
Commissioner Durham found that the evidence did not support the contention that Australia Post had:
rejected valid medical documentation;
threatened cessation of pay;
questioned the child's disability;
simply denied all carer's leave;
refused alternative support; or
otherwise placed Mrs Berry in a position where resignation was the only option.
Instead, the Commission found that Australia Post—and particularly her manager—had made genuine attempts to support her.
That distinction was decisive.
The Biggest Problem: Other Options Were Available
This is arguably the most important practical part of the decision.
At the time Mrs Berry resigned, the Commission found that she still had several available options.
She could have:
provided additional evidence in support of carer's leave;
sought another category of leave;
used the internal grievance resolution process;
discussed extending or varying her flexible work arrangement;
explored another role;
explored another location;
sought to resolve the long service leave dispute separately; or
even sought to withdraw her resignation during the lengthy notice period.
Commissioner Durham found no reason to believe Australia Post would not have properly considered those alternatives.
That effectively defeated the proposition that she had no real choice except resignation.
The Medical Evidence Did Not Establish Forced Resignation
The Commission accepted that Mrs Berry's circumstances were stressful.
It also accepted that her doctor later certified her as unfit for work.
But there were two problems.
First, Australia Post did not dispute her subsequent personal leave.
Second, the medical advice was obtained after she had already tendered her resignation.
That meant the medical certificate did not demonstrate that the employer had compelled the resignation at the time she made the decision.
This is an important evidentiary point in constructive dismissal cases.
A medical certificate may establish incapacity or stress.
It does not, by itself, prove that the employer forced the resignation.
The Employee's Own Resignation Letter Mattered
Mrs Berry's resignation letter referred expressly to her family circumstances and her son's transition to school.
She described the decision as one made because she needed to prioritise her family's needs.
She also offered to support a transition and remained open to negotiating her departure date.
Those matters were consistent with a deliberate decision to resign because of personal and family circumstances rather than a resignation compelled by employer conduct.
This demonstrates why resignation correspondence can become important evidence later.
What an employee writes at the time of resignation may carry significant weight if they later allege constructive dismissal.
Constructive Dismissal: A Practical Checklist
Where an employee says they have been forced to resign, the following questions should be asked before lodging a dismissal application.
1. What exactly did the employer do?
Identify the specific conduct rather than simply describing the workplace as “toxic”, “unfair” or “untenable”.
2. Was the employer trying to bring the employment relationship to an end?
An employer's intention is not always determinative, but conduct directed toward ending employment is highly relevant.
3. Were reasonable alternatives available?
Could the employee:
complain;
use a grievance process;
take leave;
seek medical support;
request flexibility;
challenge a decision;
seek a transfer; or
remain employed while the dispute was addressed?
If so, proving compulsion becomes more difficult.
4. What did the resignation letter say?
A contemporaneous letter describing resignation as a personal choice may undermine a later allegation of forced resignation.
5. What happened immediately before resignation?
Constructive dismissal usually requires a clear connection between employer conduct and the resignation.
6. When was medical evidence obtained?
Evidence created after resignation may still be relevant, but it may carry less weight in proving what caused the resignation.
7. Did the employee give the employer an opportunity to address the problem?
Failure to use available grievance or dispute-resolution procedures can be important where the employee later argues there was no alternative to resigning.
A Simple Example
Consider two scenarios.
Scenario A — likely voluntary resignation
An employee's flexible work request is refused.
The employer offers another leave arrangement, proposes discussing different hours and invites the employee to use the grievance process.
The employee decides that managing family responsibilities is too difficult and resigns.
That may be an entirely understandable decision.
But it is not necessarily a dismissal.
Scenario B — potentially forced resignation
An employer repeatedly tells an employee:
“You need to resign or we will make sure you are terminated.”
The employer removes all duties, stops paying the employee, refuses access to work and makes continued employment practically impossible.
The employee then resigns.
That scenario is much closer to the kind of compulsion contemplated by s 386(1)(b).
The distinction is not whether resignation was reasonable.
It is whether the employer forced it.
The Outcome
Commissioner Durham found that Australia Post had not engaged in conduct:
intended to bring the employment relationship to an end; or
which left Mrs Berry with no effective or real choice except resignation.
The Commission therefore found that she had resigned voluntarily.
Because she had not been dismissed within the meaning of s 386, the Commission lacked the necessary jurisdiction to continue dealing with her s 365 general protections dismissal application.
The jurisdictional objection was upheld and the application was dismissed.
Authorities and How They Were Used
Authority | Practical principle |
Australian Hearing v Peary [2009] AIRCFB 680 | Employee alleging forced resignation bears the onus of proving resignation was not voluntary. |
Doumit v ABB Engineering Construction Pty Ltd Print N6999 | Boundary between voluntary resignation and employer-induced resignation must be narrowly and rigorously applied. |
Jodie Moore v Woolworths Group Limited t/a Big W [2020] FWC 963 | Reinforced the strict approach to constructive dismissal. |
Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR973462 | “Forced” requires a genuine element of compulsion. |
Celia O'Keefe v Ramsay Health Care Australia Pty Limited [2021] FWC 4796 | Leaving a difficult or unpleasant workplace is not dismissal where reasonable alternatives to resignation remain. |
These authorities were applied as practical tests rather than abstract propositions.
Key Lessons for Employees
Do not assume resignation equals constructive dismissal.
Before resigning, consider whether there are realistic alternatives.
Use grievance processes where appropriate.
Put concerns in writing.
Seek variations to flexible work arrangements where relevant.
Obtain contemporaneous medical evidence where health is affecting employment.
Be particularly careful about the language used in a resignation letter.
And before lodging a general protections dismissal application, establish first whether there was legally a dismissal at all.
Key Lessons for Employers
Employers should also take note.
Written evidence showing that an employer:
considered flexibility;
proposed alternative leave;
invited further evidence;
maintained communication;
supported personal leave; and
remained willing to continue the employment relationship, can become highly important when defending a constructive dismissal allegation.
The employer's contemporaneous conduct may be more persuasive than later characterisations of what occurred.
Why Berry v Australia Post Matters
This decision is particularly useful because it draws a clear distinction between two very different concepts:
“I felt I had to resign.”
and
“My employer forced me to resign.”
The first may describe the employee's genuine personal experience.
The second is a statutory jurisdictional proposition that must be established by evidence.
For a resignation to amount to dismissal under s 386(1)(b), the employment circumstances must go beyond difficulty, stress or disagreement.
There must be compulsion arising from the employer's conduct.
That is the line the Fair Work Commission applied in Berry v Australian Postal Corporation [2026] FWC 3540.