In most circumstances, once an employee has given their resignation, the employer is not obliged to take back the employee if they attempt to rescind their resignation. However, an important exception to the law is if an employee resigns ‘in the heat of the moment’.
An employee must make an unequivocal statement expressing their unambiguous decision to resign, and nominate a specified date as the end date of their employment (no sooner than the minimum notice period).
In cases where a resignation has been received in heat-of-the-moment or adverse circumstances – such as delivered verbally during an angry outburst – case law has determined that employers should insist they receive written confirmation of the resignation within a reasonable time period, allowing the employee time to ‘cool off’. According to the authors of Managing Termination of Employment: A Fair Work Act Guide, obtaining written notice will assist the employer if the employee later disputes their resignation with an unfair dismissal claim. In circumstances where an employee refuses to provide a written statement of resignation, employers should ensure they keep a meticulous record of events.
Clarifying a resignation – Case study examples
Unfair dismissal claims have arisen in circumstances where an employee claimed that because their resignation withdrawal was not accepted it amounted to a dismissal.
In Luszczynski v Cement Australia Packaged Products  NSWIRC 1180 a resignation was found to be valid despite having been initially made in the heat-of-the-moment, principally because the employee also provided a written statement.
The NSW Industrial Relations Commission found that despite the employee having made a heat-of-the-moment decision to resign following a performance appraisal, her subsequent email and discussion with the HR manager rendered her resignation a “deliberate, voluntary and considered action”. Her unfair dismissal claim was dismissed.
Yet, in the case of Minato v Palmer Corporation AILR a retail employee who left the shop after stating that the supervisor could “shove the f***ing job up her a***” was found to have been unfairly dismissed after the employer upheld the employee’s heat-of-the-moment statement of resignation. The Industrial Relations Court of Australia found that because the employee approached senior management after the incident and expressed her desire to resolve the issue and remain employed, her employer should not have treated the employee as having resigned. It was found that in these circumstances, the termination of employment was in fact an unfair dismissal.
According to workplace relations experts at Allens Arthur Robinson, in the event of an unfair dismissal claim under the Fair Work Act 2009, the employer will have the onus of proving that it was not motivated by a prohibited reason, namely as a result of the employee exercising their workplace rights. The key points to remember include:
- It is important for employers to keep adequate records reflecting the reasons for an employee's termination, such as (for example) minutes of discussions with the employee about inadequate work performance or unsatisfactory conduct.
- When an employee fails to give clear notice of resignation or there are special circumstances leading to their departure (eg where resignation occurs in the heat of the moment or while under extreme pressure), employers should seek to clarify the resignation with the employee and allow a reasonable period of time to lapse before acting on the resignation.