Can an employee retract their resignation?
Resignation occurs when an employment relationship ends at the initiative of an employee. Employees can choose to resign at any time during their employment, and their employer cannot refuse to accept the resignation.
When an employee resigns, they are generally required to clearly communicate their decision to their employer and give written notice, the amount of which will vary depending on any applicable contract, award or registered agreement.
While most employees are comfortable with their decision to resign, sometimes a quick change in circumstances or an argument with their employer can motivate a resignation. In those instances, it is possible that after the initial excitement or the emotions of the exchange wear off, the employee might regret their decision to leave. In some limited circumstances, an employee can then retract that resignation.
Heat of the moment resignations
In most circumstances, an unambiguous resignation is final. However, emotional stress or mental confusion can lead people to say things they do not mean. For this reason, a limited exception exists when employees resign in the ‘heat of the moment’.
In these circumstances, employers must take reasonable steps to clarify and confirm whether the employee truly intended to resign, including allowing the employee time to cool off and consider their resignation.
Case law shows that a reasonable timeframe can vary from a few hours to a few days, depending on the circumstances surrounding the resignation.
If an employee resigns in the heat of the moment and their employer does not take reasonable steps to confirm their intentions, the Fair Work Commission may consider the employment relationship to be terminated at the initiative of the employer, allowing the employee to make an unfair or unlawful dismissal claim.
Mental state at the time of resignation
A recent case has seen a trainee who resigned after suffering a near-anaphylactic response at work due to poor food labelling allowed to proceed with a general protections claim because her employer failed to consider her stress levels before accepting the resignation.
In her resignation, the employee outlined complaints about her exposure to safety risks, to which she received no response. After a few days of reflection, the employee sent a further email asking to retract her resignation before receiving a letter from her employer advising that it had accepted her resignation and that her employment would end that day.
In assessing whether the resignation occurred in circumstances where the employee was in a state of emotional stress or mental confusion, the Fair Work Commission found “it was the [trainee’s] evidence that she did not expect her resignation to be accepted, and so there remains the possibility that her resignation was more of a cry for assistance rather than a genuine expression of an intent to resign.”
Given the circumstances, the FWC was concerned about how the employer responded to the request to revoke the resignation. The FWC concluded that while it was not necessarily in the heat of the moment, further inquiries into the employee’s true intentions should have been made, especially given the employer knew about her severe allergies and the incident requiring medical attention. The FWC decided that the employee had, therefore, been dismissed “at the initiative of the employer”.
While an employer can generally accept a clearly stated resignation at face value, they may be required to permit an employee to rescind their resignation if they resign during a heated exchange or while in a compromised state of mind due to stress or confusion. Under these circumstances, it is best to seek the advice of an experienced employment lawyer to determine your best course of action.
Written by Trent Hancock
Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.