Can I take back my resignation?
Typically, an employment agreement exists between an employer and an employee, whether it is an oral or written contract. Employment terms can otherwise be found in awards or enterprise agreements.
Resignation is a termination of the employment agreement at the initiative of the employee. A resignation will be valid where there is an unequivocal intention by the employee to no longer be bound by the employment agreement. This is best effected in writing and with appropriate notice as required by the agreement or industrial instrument.
In most circumstances, if an employee wishes to rescind their resignation, the employer must agree. That is, the employer may choose to continue the employment agreement by allowing the employee to retract their resignation, but isn’t under an obligation to do so.
However, it is common in everyday life for people to say things they don’t mean in highly emotional situations. For this reason, an exception exists when employees resign ‘in the heat of the moment’.
Under these circumstances, an employer is required to take steps to determine whether the employee truly intended to resign – even if this was made very clear at the time. This confirmation must be after a reasonable time to allow the employee to calm down and consider their purported resignation.
The employer should follow up and request written verification of the employee’s words or actions, or otherwise confirm the resignation. Case law shows that the timeframe can range from a few hours to a few days, however what determines a reasonable time will depend on the degree of the emotional outburst.
If an employer fails to take these steps and simply accepts a resignation made in the ‘heat of the moment’, it may be subject to an unfair dismissal application against them. Section 386(1)(b) of the Fair Work Act 2009 (Cth) distinguishes between a genuine resignation and one where an employee has felt forced to resign ‘because of conduct, or a course of conduct, engaged in by his or her employer’, which is in fact considered a dismissal at the initiative of the employer.
In the case of Minato v Palmer Corporation (1995), a retail employee stormed out of the workplace saying to her supervisor that she could “shove the f***ing job up her a***”. When the employer refused to accept the employee’s withdrawal of her resignation, it was found to be ‘harsh, unjust and unreasonable’ and therefore an unfair dismissal under section 385(b) of the Fair Work Act 2009 (Cth).