Employment & Safety Update – 14 April 2021

Resignation – when is it really over?

Introduction

Resignation of employment must be clear and unequivocal. Normally, this is not an issue as employees usually give notice in writing.

What about where nothing is provided in writing, such as where an employee packs up and leaves ‘in the heat of the moment’? The answer is not always straightforward, and the outcome can have significant results.

The Full Bench of the Fair Work Commission recently agreed that an employee who did just that, and left her workplace during business hours, did not resign from her employment.

The issue was important because it affected her ability to later seek an unfair dismissal remedy: if she had resigned, her period of continuous service with her employer would not satisfy the minimum employment period by virtue of section 384 of the Fair Work Act 2009, and an unfair dismissal remedy would not be available to her. If she had resigned, then her service would have been broken and she would have no such entitlement.

Facts – Canberra Urology Pty Ltd v Renee Lancaster [2021] FWCFB 1704

Ms Lancaster was employed as a part-time receptionist from 18 March 2019 until 20 July 2020. Dr Mulcahy was the principal of the employer company. In late November 2019, after being asked whether some overdue accounts had been dealt with, Ms Lancaster said words to the effect of “That’s it. I’ve had enough of this place. I’m out of here” and took her belongings and left.

The employer did not:

  • follow up with Ms Lancaster after she walked out and did not ask for the return of the office keys; or
  • pay out her annual leave entitlements after the purported first period of employment.

A few days later, Dr Mulcahy noticed Ms Lancaster sitting at her desk. He said to her: “What are you doing here? You said you were leaving.” The Applicant ignored his questions and continued to work. Dr Mulcahy then went to the Practice Manager and asked why the Applicant was there, but was told not to say anything to her and leave her alone. The Applicant continued to work in her role until her employment ended on 20 July 2020 and at that time, she applied to the Fair Work Commission for an unfair dismissal remedy.

The question – did Ms Lancaster clearly and unequivocally intend to resign?

The Fair Work Commission found that Ms Lancaster’s conduct did not constitute a clear and unequivocal intention to resign, particularly so given her conduct afterward, in attending work as normal. It did not help that the employer did not act as if she had resigned, they did not seek property to be returned or pay out her entitlements.

The employer sought permission to appeal, however the Full Bench of the Fair Work Commission did not grant permission.

The result was that Ms Lancaster met the minimum period of continuous service and was not barred from seeking an unfair dismissal remedy.

What to do in ‘heat of the moment’ resignations

This case helps to illustrate what employers should do in ‘heat of the moment’ situations, when the employee’s intentions are uncertain.

In such cases, employers should:

  • keep detailed notes of the events, so that there is sound evidence of the facts surrounding such a resignation;
  • depending on the circumstances and the particular employee, make further enquiries to see if the resignation was really intended;
  • confirm the resignation in writing to the employee;
  • require the employee to return all keys and other property; and
  • provide the employee’s final payment to provide all entitlements.

If you have any queries or would like further information regarding this update, please contact:

Joe Mullavey
Principal
M: 0416 794 061
E: jmullavey@pageseager.com.au

Published: 14 April 2021

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