HR Summit Perth: Can an employee who resigns and then rescinds still claim unfair dismissal?

by John Maguire10 Jun 2016
Speaking at HR Summit Perth earlier this month, Anne Casellas, partner with law firm Clayton Utz, asked the potentially thorny question of whether an employee can resign, rescind the resignation and successfully pursue an unfair dismissal claim.

In citing a number of cases, Casellas found that indeed employers do leave themselves open to unfair dismissal claims even in the event of a rescinded resignation. There are a number of factors employers might consider when facing this potential scenario.

Casellas states that once an employee has resigned, the employment relationship has ended at the initiative of the employee. However, a crucial exception to this is where the employee resigns ‘in the heat of the moment’, that is, during an angry outburst. Another exception is when the employee is forced to resign.

In this case, it was held that the dismissal was harsh, unjust or unreasonable. It also found that the termination was at the initiative of the employer and that ‘special circumstances’ may arise where it may be unreasonable for an employer to assume a resignation and accept it. In this case, it was deemed that it should have been obvious to the employer that the employee’s resignation was the product of frustration. The Applicant’s case was helped by the fact he acted quickly to rescind his resignation.

Casellas recommended that when faced with a resignation ‘in the heat of the moment’ employers should:
  • Insist that the employee write a written confirmation of the resignation within a reasonable time period 

  • Allow the employee time to ‘cool off’
  • Ensure that the employee has resigned at their own initiative
  • Review their employment status

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