An employee resigned after she advised her employer that she was transitioning into a woman. The employer was caught by surprise and despite supporting her decision to transition on a ‘personal level’ was concerned about the impact the transition would have on the business. The employer told the employee that her transition would make clients uncomfortable and would create “safety concerns” in the workplace as he believed he could not keep the employee safe from adverse comments. The employer also noted that the employee’s transition was not ‘on brand’ and did not fit with the commercial profile of the business. The employer advised the employee that she could come back to work if she presented as her male personna.

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified constructive dismissal.

The ERA held that the employee’s resignation was reasonably foreseeable as the way in which the employer dealt with the employee’s disclosure of her transition amounted to a fundamental breach of the trust and confidence inherent in the employment relationship. The ERA noted that the fundamental breach was so serious that the employee could not be expected to continue working in such circumstances.

The ERA noted that the employee was not given a fair or reasonable opportunity to respond to the employer’s concerns, and felt as though she had no choice but to resign.

The ERA awarded the employee over $3,200 for lost wages plus $11,000 in compensation for humiliation, loss of dignity and injury to feelings.