The Do’s and Don’ts of Resignations
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Did the employee resign?
The first step is to determine if the employee has actually resigned. For a resignation to be valid there must be an unequivocal intention by the employee to no longer be bound by the employment agreement. A statement of intent to resign is not in itself a resignation nor is a resignation provided ‘in the heat of the moment’.
Intent to Resign or Resignation?
In a recent decision, the Fair Work Commission considered whether an employee, who stated that they would hand in their resignation letter, had “resigned”. In the case, the employee sent a text message to the employer stating that he would be filing a resignation letter the next day, however, upon changing his mind 20 minutes later, he sent a second message stating he would return to work as usual. The employer then went on to email the employee stating that they had accepted his resignation and he was required to return his keys.
The Commission differentiated between an employee’s statement, “I am resigning” and “I will hand in my notice”, finding that the former had an immediate effect, and the latter was a statement of future intention. It further held that the applicant had not carried out his future intention, given he never filed his notice. With this, the Commission found that the applicant’s termination was “plainly” at the respondent’s initiative and ordered $2,778.21 compensation.
Do and Don’t:
DON’T: regard an employee’s statement of an intention to file a resignation as a resignation having taken place.
DO: follow up with the employee, confirm their intentions, request any resignation to be submitted in writing.
Resignation in the Heat of the Moment?
At times employees may say that they don’t mean, especially in highly emotional situations. It is not uncommon for an employee to ‘resign’ in the ‘heat of the moment’. In these circumstances employers need to take steps to determine whether the employee truly intended to resign.
A well-known example of such a situation is the case of Minato v Palmer Corporation (1995). A retail employee stormed out of the workplace saying to her supervisor that she could “shove the f***ing job up her a***”. When the employer refused to accept the employee’s withdrawal of her resignation, it was found to be ‘harsh, unjust and unreasonable’ and therefore an unfair dismissal under section 385(b) of the Fair Work Act 2009 (Cth).
Do and Don’t:
DON’T: accept a resignation immediately when given in the heat of the moment.
DON’T: refuse to accept withdrawal of a resignation in the heat of the moment.
DO: allow the employee reasonable time to calm down and consider their resignation.
DO: follow up with the employee, confirm their intentions, request any resignation to be submitted in writing.