When an employee notifies his / her employer that they wish to terminate their employment, their employment will automatically terminate when the relevant notice period expires. That is, it takes effect irrespective of the employer’s acceptance or rejection of the notice. Further, if an employee gives notice of his /her intention to terminate their employment, and the employer opts to take advantage of an ability to make a payment to the employee in lieu of the employee working out the notice period (for example, if the relevant employment contract allows the employer to do this), such action by the employer can only be viewed as an acceptance of the resignation.
The only way the termination can be withdrawn is by the consent of both the employer and employee.
Are there any exceptions???
Yes!
Withdrawal without the consent of the employer will typically only be permitted in exceptional circumstances – that is, where the employee could argue that communication of the notice did not represent a true expression of his / her will, for example, where the notice of termination was communicated in a heated or stressful situation. However, the longer the period between an employee giving notice and then withdrawing it, the less likely that the withdrawal will be effective.
The above situation arose in a recent case before the Fair Work Commission involving BUPA Aged Care Australia Pty Ltd and its former employee Shahin Tavassoli.
In that case….
- 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.
- 2 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 6 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 6 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 4 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.
If you are faced with this situation – what do you do?
It really depends on the particular circumstances of the resignation however, one option may be 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.
