When is a resignation not a resignation?

If an employee resigns in ‘the heat of the moment’ – such as when going through performance management or disciplinary action – their resignation may not actually be intended.

Accepting a resignation when an employee’s stress and frustration has escalated to them proclaiming they’ve “had enough” or “I’m resigning” comes with some risks, such as claims of unfair dismissal, if not handled correctly.

CCIWA’s Employee Relations Advice Centre receives regular calls about various scenarios that lead to employees resigning in the ‘heat of the moment’.

Has my employee resigned?

A resignation generally occurs when an employee voluntarily decides to terminate their employment. It should be communicated clearly to their employer and ideally provide in writing.

The intention of an employee’s resignation should be considered to determine if the resignation is effective or not.

This would include:

  • how the resignation was delivered – e.g. calmly, not in anger or out of frustration
  • when and where the resignation was delivered – e.g. at a time which is appropriate, not during a performance management or a disciplinary action meeting; and
  • why the employee has decided to resign – e.g. for their own reason, not because of the employer’s conduct, such as the employer instructing the employee to resign, or threatening termination.

Under these circumstances a resignation would normally be effective. However, under other circumstances, such as in the ‘heat of the moment’, it may be unreasonable to assume the employee has resigned.

My employee stormed out of a performance meeting and said, “I’m done”. What should I do now?

Where an employee appears to have resigned in the ‘heat of the moment’ you should not assume this means they are genuinely tendering their resignation.

Some best practice recommendations for dealing with what may seem like a resignation in the ‘heat of the moment’ are:

  • give the employee a reasonable amount of time to cool down
  • shortly after (i.e. the next day), contact the employee to confirm if it is their intention to resign
  • ask the employee to reconsider if appropriate
  • obtain written confirmation if it is the employees intention to resign; and
  • keep records of any conversations had regarding the employee’s intention to resign.

When an employee resigns, in most circumstances they cannot withdraw their resignation without your agreement.

However, in the case of a resignation in the ‘heat of the moment’, whereby the employee wishes to withdraw their resignation under these special circumstances, it may be unreasonable to refuse their request.

A refusal in this special circumstance could expose an employer to an unfair dismissal claim on the basis that termination of employment was at the employer’s initiative, not the employees, given these special circumstances.

‘Legally ineffective’

In a recent case, an employee had written an initial resignation letter immediately prior to a disciplinary meeting, giving one months’ notice.

During the meeting the employee became “upset and emotional to the point of crying” and the letter was amended to having immediate effect with the employee crossing out the one months’ notice.

On the following day, the employer sent the employee a letter advising acceptance of the employee’s resignation.

Subsequent to the employer’s letter, the employee attempted to withdraw her resignation however the employer refused her request and confirmed her employment had ended.

The Fair Work Commission (FWC) found the employee’s resignation was in the ‘heat of the moment’ “because of special circumstances and/or a combination of other factors, it was unreasonable for the employer to assume that the resignation was genuinely intended”.

Those special circumstances included “the irrationality of the applicant’s behaviour”, “her impulsive preparedness to resign with immediate effect, and that decision was conveyed by her scribbling out that part of the resignation letter which contained words indicating that she was providing one month’s notice”.

Consequently, the FWC found the employee’s resignation was “legally ineffective” and that the employer was found to have terminated the employment when it refused to allow the employee to come back to the workplace.

Employers need to be very careful when dealing with employees who seem to have resigned in the ‘heat of the moment’ and need to keep in mind the intention of the employee’s resignation and all mitigating circumstances should be considered before accepting the employee’s resignation is effective.

► Like to know more? Contact CCI’s Employee Relations Advice Centre on (08) 9365 7660 or email advice@cciwa.com.

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