You run a successful company but are constantly butting heads with one particular employee.

Your management team meets with the employee on several occasions. A heated argument occurs where the employee proclaims, “I’m out of here”, “you can keep your job” or “I’ve had enough of this, I’m done” and pertains to walk off. They may even collect their personal belongings and exit the premises. On rare occasions, they may even utter the words ‘I resign’.

You leave the office relieved that they have officially resigned only to find them sitting at their desk the next day. Worse, you’ve been hit with an unfair dismissal application for constructive dismissal.

It is important as an employer you understand what your obligations are when accepting a ‘heat of the moment’ resignation.

Can I Accept My Employee’s Resignation?

As a rule of thumb, once an employee has clearly communicated their resignation to an employer, they cannot later withdraw their resignation just because they change their mind. However, an important exception exists if an employee resigns where there are special circumstances, such as those that occur ‘in the heat of the moment’.

Care should be taken to accept resignations where there are special circumstances, such as during times of words being said in anger, or those that may be the direct result of any intellectual incapacity of the employee.

Case law has now determined that employers must follow a certain procedure to accept this type of resignation.

Sean Jen Eyong Tan v Vital Packaging

In the recent case of Sean Jen Eyong v Vital Packaging [2017] FWC 887, 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 employer met with the employee for a disciplinary meeting. During the course of this meeting, the employee had become visibly agitated, raising his voice at the employer and making inappropriate remarks. The employer attempted to calm him down, with the employee declaring stating “You can have your f**king job” and “I resign” before leaving the meeting and collecting his personal belongings. To the surprise of the employer, the employee attended work the following day. When he was asked to leave by the employer due to declaring his resignation, the employee lodged an unfair dismissal application.

Upon review of the circumstances, the FWC considered that the employee had unambiguously meant to resign during the time of the meeting.

The FWC held that by making these statements to the employer when he was agitated and angry, it amounted to ‘special circumstances’.

Accordingly, it was unreasonable for the employer to accept his resignation during this time.

Key Takeaways

Employers should be mindful where there may be some uncertainty surrounding an employee’s intention to resign. 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 his or her resignation;
  • confirm their resignation by written correspondence to their employee;
  • make further enquiries to see if the resignation was really intended by the employee; and
  • keep adequate records surrounding the purported resignation.

Addressing each of these points will help to ensure that you are protected against a claim being made against you for Unfair Dismissal.

Employers should be mindful of a ‘heat of the moment’ resignation that might be considered special circumstances by the Fair Work Commission. The staff member could take action against the employer for Unfair Dismissal to protect their workplace rights.  Any such action should be carefully considered. If you’re unsure whether an employee has completely resigned or you have any questions, you can get in touch with LegalVision’s employment lawyers by calling 1300 544 755 or by filling out the form on this page.

Adi Kedar
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