Recognising a Valid Employee Resignation

Relevant For:

Employers and HR professionals

Key Points:

• Distinguish between voluntary resignations and dismissals to avoid unfair dismissal claims.
• Resignations during conflict or emotional incidents may be considered employer-initiated dismissals.
• Ensure clarity in resignation statements; intent without formal resignation is not binding.
• Assess the employee’s mental state and allow time for reconsideration in contentious resignations.
• Document the resignation process thoroughly to support the employer’s position.

Full Article:

Employers often assume that if an employee resigns on their own, they cannot make claims against the company regarding the termination of their employment. However, certain situations can blur the lines between a voluntary resignation and a dismissal initiated by the employer, such as during periods of high conflict or emotionally charged incidents.

Why Understanding Resignation Matters

Employers need to distinguish between voluntary resignations and dismissals. A voluntary resignation prevents employees from filing an unfair dismissal application. Conversely, if an employee is forced to resign due to the employer’s actions, they may have grounds for an unfair dismissal claim.

Intended vs. “Heat of the Moment” Resignations

Consider these cases where employee resignations were deemed dismissals:

• Case 1: Rodney Harvey v Valentine Hydrotherapy Pools Inc
  During a dispute, Mr Harvey sent a text stating he would resign but retracted it later. The employer considered him resigned based on the initial text. The Fair Work Commission (FWC) ruled that the text did not constitute a clear resignation, and Mr Harvey’s dismissal was employer-initiated.
• Case 2: Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli
  Amid misconduct allegations, a distressed Ms Tavassoli resigned. The FWC found her resignation was not deliberate due to her emotional state and language barriers, considering it an employer-initiated dismissal.
• Case 3: Rutter v Anglogold Ashanti Australia Ltd
  Ms Rutter resigned after a medical incident, then retracted it. The FWC determined her resignation invalid due to her mental state and subsequent actions, ruling it an employer-initiated dismissal.

Key Takeaways for Employers

• Resignation Statements: If an employee expresses intent to resign, but does not follow through formally, it is unlikely to be considered a resignation by the FWC.
• Contentious Resignations: Avoid accepting resignations made during or after conflicts without further consideration.
• Mental State Considerations: Assess the employee’s mental state to determine if the resignation was genuine.

Recommendations for Employers

If faced with an unfair dismissal claim, the FWC will examine the circumstances surrounding the end of employment. Employers should:

• Objective Assessment: Evaluate the situation objectively.
• Allow Time: Let a reasonable period elapse to ensure clarity.
• Further Inquiry: Confirm the resignation with follow-up correspondence.

Ensuring a clear, documented resignation process can save time and resources, reducing the risk of unfair dismissal claims.