When is a resignation not a resignation?
Author Paul Munro 20 Dec 2011
In most circumstances, an employee who resigns is not in a position to retract the resignation without the employer’s agreement, however, ‘in the heat of the moment’ resignations may be treated differently.
This question was recently sent to WorkplaceInfo.
This question was recently sent to WorkplaceInfo.
Q A long-term employee had a verbal slanging match with one of our managers and, at the end of the argument, told the manager to ‘go shove the job and I’m finishing up today’, or words to that effect.
The employee then stormed off the premises vowing never to return.
We took this to be a resignation, although we were disappointed because the person had been a good employee for the five years he had been employed with us.
The employee has subsequently made an application for unfair dismissal, claiming he was incited by the manager’s actions and was left no alternative under the circumstances other than to resign.
It is certainly our view (and the view of the manager who was verbally abused) that the employee left no doubt as to his intention to resign.
Could these circumstances be interpreted by Fair Work Australia to be that actions by the employer contributed to the employee’s resignation and is regarded as a dismissal by the company?
A The employer should be sure the words used by an employee when tendering their resignation are unambiguous and, if that is the case, the employer is entitled to treat those words as such.
Unreasonable
However, words may be said ‘in the heat of the moment’, in which industrial tribunals have considered the circumstances where it may be unreasonable for the employer to assume a resignation and accept it forthwith.
Where there may be some uncertainty surrounding the employee’s intention to resign, a reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended, then the employer should make further enquiries to ensure resignation was the employee’s real intention.
In failing to confirm whether it was the employee’s intention to resign, the employer runs the risk that ultimately evidence may be forthcoming which indicates that in these circumstances the intention to resign was not the correct interpretation when the facts are judged objectively.
In writing
Obtaining the employee’s resignation in writing would also be an important factor in confirming the employee’s intention to resign.
Failure to retract
However, where an employee resigns, voluntarily, in the heat of the moment and the resignation is not retracted, either swiftly or not at all, then the employee’s employment was not terminated at the employer’s initiative.
Source: Paul Munro, IR Consultant.
The employee then stormed off the premises vowing never to return.
We took this to be a resignation, although we were disappointed because the person had been a good employee for the five years he had been employed with us.
The employee has subsequently made an application for unfair dismissal, claiming he was incited by the manager’s actions and was left no alternative under the circumstances other than to resign.
It is certainly our view (and the view of the manager who was verbally abused) that the employee left no doubt as to his intention to resign.
Could these circumstances be interpreted by Fair Work Australia to be that actions by the employer contributed to the employee’s resignation and is regarded as a dismissal by the company?
A The employer should be sure the words used by an employee when tendering their resignation are unambiguous and, if that is the case, the employer is entitled to treat those words as such.
Unreasonable
However, words may be said ‘in the heat of the moment’, in which industrial tribunals have considered the circumstances where it may be unreasonable for the employer to assume a resignation and accept it forthwith.
Where there may be some uncertainty surrounding the employee’s intention to resign, a reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended, then the employer should make further enquiries to ensure resignation was the employee’s real intention.
In failing to confirm whether it was the employee’s intention to resign, the employer runs the risk that ultimately evidence may be forthcoming which indicates that in these circumstances the intention to resign was not the correct interpretation when the facts are judged objectively.
In writing
Obtaining the employee’s resignation in writing would also be an important factor in confirming the employee’s intention to resign.
Failure to retract
However, where an employee resigns, voluntarily, in the heat of the moment and the resignation is not retracted, either swiftly or not at all, then the employee’s employment was not terminated at the employer’s initiative.
Source: Paul Munro, IR Consultant.
 | Paul Munro Paul has over 30 years’ experience providing advice to employers on workplace issues, with over 25 years as a workplace relations advisor with New South Wales Business Chamber. Paul has also been in a workplace advisory role with employer organisations in the timber industry and club industry. more from Paul |
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