An employee resigns, then changes their mind. Sometimes it happens within hours, sometimes days into their notice period. For employers, this situation can create genuine uncertainty about where they stand. When an employee attempts to retract a resignation they have already submitted, many employers are unsure whether they are obliged to accept the withdrawal or whether the original resignation stands.
The answer depends on the circumstances, but the starting legal position in Australia is clear.
A resignation takes effect automatically upon expiry of the notice period given by the employee, irrespective of any acceptance or non-acceptance by the employer. Any payment in lieu of notice by the employer can only be viewed as an acceptance of the resignation and not as a means by which the employer terminates the employment.
This means that the only way in which a notice of termination can be withdrawn is by the consent of both the employer and the employee. It is not something an employee can do unilaterally.
What Is the Legal Position on Withdrawing a Resignation?
As set out above, an employee does not have an automatic right to withdraw a resignation once it has been given. The resignation takes effect at the end of the notice period, and the employer’s consent is required for any withdrawal to be effective.
The Fair Work Commission has considered the question of withdrawing a resignation in a number of unfair dismissal decisions, and the principles applied are broadly consistent with this general legal position. Where an employee attempts to rescind their resignation without the employer’s agreement, the resignation generally stands.
Can an Employee Rescind a Resignation? The Exceptions
There is an important qualification to the general rule. Withdrawal without consent will typically only be permitted in exceptional circumstances; for example, where the resignation did not represent a true expression of the employee’s will.
This may arise where the resignation was communicated impulsively in a heated or highly stressful situation, or where the surrounding circumstances cast genuine doubt on whether the employee’s decision was considered and voluntary. In those circumstances, a court or tribunal may find that the purported resignation was not a genuine resignation at all.
The longer the period between the giving of notice and the attempt to withdraw it, the less likely any withdrawal will be effective. An employee who gave a calm, considered written resignation a week ago is in a very different position from one who stormed out of a meeting and declared they were quitting on the spot.
Common Reasons Employees Seek to Retract a Resignation
Understanding why an employee is seeking to retract a resignation is an important first step for any employer assessing how to respond. The reason matters both legally and practically.
The Resignation Was Made in the Heat of the Moment
This is the most legally significant scenario and the one most likely to fall within the exceptional circumstances recognised under Fair Work principles. Where a resignation was given impulsively during a heated exchange, a disciplinary meeting, or a period of acute emotional distress, there is a real question about whether it represented a genuine and voluntary decision.
Employers should be cautious about immediately accepting a resignation made in these circumstances. Accepting it too hastily, particularly if it is then challenged before the Fair Work Commission as a constructive dismissal or forced resignation, can expose the employer to unfair dismissal liability. Where a resignation appears to have been made in the heat of the moment, seeking written confirmation of the employee’s decision the following business day is a practical and protective step.
The Employee Changed Their Mind During the Notice Period
One of the most common situations employers face is an employee asking: can I withdraw my resignation during my notice period? In these cases, the resignation was not given under duress. It was a clear and considered expression of the employee’s intention to leave. The employee has simply had a change of heart.
In this scenario, the employer is not legally obliged to accept the withdrawal. The resignation stands unless the employer chooses to agree to the employee remaining. That decision is entirely at the employer’s discretion and should be made on the basis of what is genuinely in the business’s interests.
The Employee’s Personal Circumstances Changed
An employee may have resigned to take up another role, for personal reasons, or to relocate, and circumstances have since shifted. Again, this is a voluntary and considered resignation, and the employer has no obligation to agree to a withdrawal simply because the employee’s situation has changed. The original resignation remains valid.
Should Employers Accept a Withdrawal of Resignation?
Whether to accept a withdrawal of resignation is a commercial and practical decision as much as a legal one. Employers should consider the following before responding.
Has a replacement already been engaged? If the employer has already commenced a recruitment process or made an offer to a replacement candidate, agreeing to the withdrawal may create significant complications, including potential redundancy obligations if the original employee later becomes unavailable.
Has the relationship been affected? In some cases, the fact that an employee chose to resign, regardless of their current desire to withdraw that resignation, which signals a breakdown in the employment relationship that makes it impractical to continue. An employer is entitled to take this into account.
Was the resignation clearly voluntary and considered? If so, the employer is on solid ground declining the withdrawal. If there is genuine doubt about whether the resignation was voluntary, for example, where it was made in distress or immediately following a difficult meeting, the employer should seek advice before acting.
Are there outstanding performance or conduct issues? In some cases, an employee’s resignation was a welcome development from the employer’s perspective. Accepting the withdrawal without thought may reintroduce difficulties that the resignation had resolved.
Where an employer is uncertain about whether they are obliged to accept a withdrawal, particularly where the circumstances of the original resignation are in any way ambiguous, seeking prompt legal advice is strongly recommended. Coleman Greig’s Employment Law and WHS team can assist with exactly these situations.
Case Study: BUPA Aged Care Australia Pty Ltd v Shahin Tavassoli
The Fair Work Commission considered exactly this question in the matter of BUPA Aged Care Australia Pty Ltd v Shahin Tavassoli.
The facts of the case were as follows:
- On 16 November 2016, the employee was notified that serious allegations had been made against her and that she would be called to a meeting that day to discuss the allegations.
- Two hours passed, and in that time the employee sought the assistance of a work colleague to draft a resignation letter. The employee had not been informed as to what the allegations entailed but came to the conclusion that it involved a six-pack of beer that had been offered to her by a resident. The employee was then called to a meeting to discuss the allegations.
- At the commencement of the meeting, the employee handed the employer her resignation letter, but the employer did not accept it. The employee was then advised of the allegations of misconduct (which had nothing to do with the six pack of beer). The employee advised the employer that she did not want to participate in the investigation and pressed her resignation. The employer advised the employee that unless she changed the date of her resignation to have immediate effect, she would still be required to participate in the investigation. The employee immediately scribbled out the reference to four weeks’ notice, and gave it back to the employer. It should also be noted that during this meeting the employee was visibly upset and emotional to the point of crying.
- On 17 November 2016, the employer accepted the employee’s resignation in writing.
- On 18 November 2016, the employee attempted to withdraw her resignation, but her request was rejected by the employer.
- The employee subsequently filed an unfair dismissal claim.
Of particular significance, Commissioner Cambridge held: “when all the circumstances of the 16 November meeting are examined (the impulsive preparedness to resign with immediate effect, and that the decision was conveyed by scribbling out part of the resignation letter), the irrationality of the employee’s behaviour is clearly evident, and therefore in those circumstances the resignation should not have been accepted.”
This case illustrates why employers should not automatically accept a resignation made during or immediately following a disciplinary or stressful meeting, even where the resignation appears clear on its face. The coerced change of notice period in particular is a significant factor that employers should be alert to in similar situations.
What Should Employers Do When Faced With This Situation?
It really depends on the particular circumstances of the resignation. However, one practical option is to seek confirmation of the employee’s decision to resign within a reasonably short period of time, for example, the next business day, and if possible, seek confirmation of their decision in writing.
This approach gives the employee an opportunity to reconsider if the resignation was genuinely impulsive, while also creating a clear written record of a considered decision if the employee confirms they wish to proceed. It protects the employer in either scenario.
If you are faced with an employee who wishes to retract a resignation and you are unsure of your obligations, Coleman Greig’s Employment Law and WHS team can provide prompt, practical advice.
