Can an employee retract a resignation?

In a recent decision, the Fair Work Commission considered whether an employee, who stated that they would hand in their resignation letter, had “resigned”. The applicant was employed as a casual pool attendant at the respondent, a not-for-profit organisation operating a public swimming pool and hydrotherapy facility.

In September 2020, the respondent elected a new management committee. The applicant, who had worked at the facility for six years, developed a strained relationship with the new members.

In February 2021, the applicant noted that the respondent had not paid him for two hours of work in his previous pay period. When he raised this, the respondent’s vice-president stated that the applicant should spend his downtime during shifts cleaning the facilities, rather than on his phone. Later that week, the applicant again attempted to raise his underpayment with the respondent’s president but stated he grew displeased after she continually interrupted him during the conversation. 

When the applicant arrived home that evening, he sent a text message to the respondent, stating he would be filing a resignation letter the following day and meeting with a lawyer regarding 250 hours of unpaid work. However, upon changing his mind 20 minutes later, the applicant sent a second message to the respondent, stating he would return to work as per usual.

The next day, the applicant received an email from the respondent stating it formally accepted his resignation. The applicant returned his keys to the facility as directed and subsequently filed an unfair dismissal application.

The Commission differentiated between an employee’s statement, “I am resigning” and “I will hand in my notice”, finding that the former had an immediate effect, and the latter was a statement of future intention. It further held that the applicant had not carried out his future intention, given he never filed his notice.

With this, the Commission found that the applicant’s termination was “plainly” at the respondent’s initiative. Moreover, given the respondent ran its case purely on the notion that the applicant had resigned, the Commission found no sound or defensible reason for the dismissal that had ensued.

The Commission ordered $2,778.21 compensation to the applicant.

Key Takeaways:

• An employer should not regard an employee’s statement of an intention to file a resignation as a resignation having taken place