As an employer, you may find yourself butting heads with one particular employee. Say your management team meets with the employee on several occasions. A heated argument occurs, and the employee proclaims, “I’m out of here”. They may even collect their personal belongings and exit the premises. On rare occasions, they may even utter, “I resign”. Although you may be relieved to see the former employee sign an official resignation letter, this does not always occur. Without a resignation letter, you could face a claim for constructive dismissal. Hence, as an employer, you must understand your obligations when accepting a ‘heat of the moment’ resignation.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Can I Accept My Employee’s Resignation?
As a rule of thumb, once an employee has communicated their resignation to an employer, they cannot withdraw their resignation later because they change their mind. However, an important exception exists if an employee resigns under special circumstances, such as those that occur ‘in the heat of the moment’.
Case law has now determined that employers must follow a specific procedure to accept this type of resignation. As outlined in the case below, you risk facing an unfair dismissal claim if you fail to take active and reasonable steps to confirm your employee’s exact intention.
Case Study
In the recent case of Rodney Harvey v Valentine Hydrotherapy Pools Inc [2021] FWC 3373, the Fair Work Commission (FWC) considered an unfair dismissal application where the termination of employment arose from a heated discussion with the employer.
In this case, the employee and employer met to discuss the employee’s concerns about wage underpayments. The employee alleged that he had consistently worked and not received overtime payments. The employer alleged that they never gave the employee work to complete overtime, and raised concerns about the employee’s general conduct at work.
Following this conversation, the employee became agitated and aggressive, raising his voice considerably. Finally, he turned to leave the discussion and stated, “well I’m resigning then” and left the premises where he worked. The employee did not provide written notice.
To the employer’s surprise, the employee attended work the next day. Three days following this discussion, the employer hand the employee a letter advising them that the employer accepted their resignation. The employee then lodged an unfair dismissal application.
The FWC’s Findings
On these facts, the FWC found that when the employer accepted the resignation, they had terminated the employment relationship at its own initiative. Hence, the FWC held that the employee did not resign, but raised legitimate issues regarding underpayment which needed rectifying. This constituted special circumstances. Hence, the dismissal was harsh, unjust and unreasonable, and the FWC awarded the employee compensation.
Continue reading this article below the formWhat Should I Do Before Accepting a Heat of the Moment Resignation?
The case above and many others prove that employers should be mindful of where there may be some uncertainty surrounding an employee’s intention to resign. What may seem like a clear intention to cease work may be an expression of frustration or anger. Before accepting this type of resignation, ensure that you:
- clarify the resignation with the employee and ask them to reconsider if appropriate;
- allow your employee a reasonable ‘cooling-off’ period to confirm their resignation;
- confirm their resignation by written correspondence to their employee;
- make further enquiries to see if the employee really intended the resignation; and
- keep adequate records surrounding the purported resignation.
By addressing these points, you can minimise the chance of facing a claim for unfair dismissal.
Key Takeaways
Maintaining employment relationships whilst ensuring the continued success of your business can be difficult. Sometimes you may face conflict with your employees. This can be particularly difficult to navigate where emotions and stress are elevated. If you are unsure whether an employee has completely resigned or you have any questions, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
What an employee says in a heated discussion should not necessarily be taken at face value. As an employer, you have an obligation to take active steps to confirm your employee’s intention to resign.
If you accept her actions as a resignation, you could be found to have terminated the employment relationship on your own initiative. As a result, your employee may have grounds to lodge an unfair dismissal claim against you. If you lose this case, you could have to reinstate the employee or pay compensation of up to six months’ pay.
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