Employee resignations may occur in the ordinary course of business. However, in high conflict employment relationships it can sometimes be difficult to determine what constitutes an effective resignation and what is a dismissal.

Dealing with employee resignations can be difficult in the best of circumstances. However, in some instances there is also the added challenge of determining whether an employee has voluntarily resigned or was forced to resign in the ‘heat of the moment’. Confusion over this issue usually transpires in high conflict, emotionally charged employment relationships.

Why is this important?

It is important that employers understand the difference between a voluntary resignation and a dismissal. An employee that has voluntarily resigned is prevented from filing an unfair dismissal application against their former employer. However, if an employee was forced to resign because of a course of conduct undertaken by their employer, the employee may have the right to file an unfair dismissal application against their employer. Invariably, this will result in a costly and time-consuming legal claim.

What constitutes an effective notice of resignation?

Recently, the Fair Work Commission considered a unique set of circumstances in Rodney Harvey v Valentine Hydrotherapy Pools Inc [2021] FWC 3373. In that matter, Mr Harvey was embroiled in a dispute with his employer which included an allegation that he was underpaid. Following a heated discussion, Mr Harvey:

  • Sent a text message to his employer stating he will be ‘handing in a resignation letter tomorrow’;
  • He later retracted this text message and wrote to his employer that he ‘will not quit’ and will resume his duties the next day; and
  • He then attended work the next day and completed his rostered shift.

The employer considered that Mr Harvey had resigned upon sending the first text message and the employment relationship was at an end. Mr Harvey disagreed and filed an unfair dismissal application.

The employer’s response to the unfair dismissal application

The employer filed a jurisdictional objection with the Fair Work Commission asserting that Mr Harvey voluntarily resigned and was not dismissed within the meaning of section 386 of the Fair Work Act 2009 (Cth). Accordingly, the Commission was required to consider whether Mr Harvey had voluntarily resigned or whether he was dismissed on the initiative of the employer.

The wording of the text messages

The Commission considered all the circumstances surrounding the end to the employment relationship. It ultimately determined that Mr Harvey did not resign because he only expressed a future intention to resign through his text messages to the employer. The Commission distinguished between ‘I resign’ and ‘I will hand in my notice’. It was ultimately held that the verbal conversation and text messages from Mr Harvey were not clear or unequivocal and could not therefore be considered to be an effective notice of resignation.

The conduct of the parties

The Commission also considered the conduct of the parties following the verbal exchange and written correspondence between the parties.

It was held that the following circumstances indicated that Mr Harvey did not intend to resign from his employment:

  • Mr Harvey immediately retracted his ‘intention’ to resign;
  • Mr Harvey attended work the next day; and
  • Mr Harvey executed his contractual duties.

Considering the circumstances, the Commission held that Mr Harvey did not intend to resign from his employment. Accordingly, the employer’s refusal to allow Mr Harvey to return back to work effectively ended the employment relationship and Mr Harvey was dismissed.

What to do next?

If an employee files an unfair dismissal application asserting that they did not resign, the Fair Work Commission will undertake a full examination of all the circumstances surrounding the end of the employment relationship. A full examination of the circumstances is required because the relevant test is based on what a reasonable person in the position of the parties would have understood as the objective position. Accordingly, it is important that there is a written paper trail to support a finding that the employee intended to resign. In high-conflict and emotionally charged situations, it is prudent for an employer to:

  1. Take a step back and consider the situation on an objective basis;
  2. If there is ambiguity or confusion surrounding the resignation, the employer should allow a reasonable period of time to lapse to create a more objective set of factual circumstances; and
  3. Undertake a further enquiry into whether the resignation was intended. This can be satisfied by sending follow up written correspondence requesting that the employee confirms their notice of resignation.

Again, it is essential that the nature of the resignation is confirmed prior to the end of the employment relationship. Taking these preliminary steps will save an employer significant time and resources.

If you are an employer who needs help in determining whether an employee has resigned or if you are an employee who believes they have been unfairly dismissed, call us now on 1300 654 590 to speak to one of our employment law experts.