A resignation may not always be effective and valid. Employer’s acceptance of a “heat of the moment” resignation or the employer’s provocation of the resignation could potentially lead to a dispute of unfair or constructive dismissal. This Article discusses why employers could potentially become liable by accepting or encouraging such resignations.
When Can Resignation Be a Dismissal?
Pursuant to section 386(1) of the Fair Work Act 2009 (Cth) (the Act), a person has been dismissed if:
- the person’s employment has been terminated on the employer’s initiative; or
- the person has resigned but was forced to do so because of the conduct or course of conduct engaged by the employer.
In Susan Carter v Metro Trains Sydney Pty Ltd [2023] FWC 379, the FWC decided the employee, Ms Carter, was constructively dismissed.
Ms Carter was employed by Metro Trains Sydney (MTS) in 2002 and resigned in 2022, during her employment, she made complaints about the training she was provided by MTS, including the training materials being unclear and the supervisor being unfriendly, but the complaints remained unaddressed by MTS. MTS conducted a job ready assessment (JRA) to test employees’ responses to job-related scenarios. MTS considered Ms Carter’s conducts in the JRA to be inappropriate and reportable and conducted a cross-examination on Ms Carter. Ms Carter verbally indicated her intention to resign during the cross-examination. In the afternoon of the same day, MTS sent an email to Ms Carter accepting Ms Carter’s verbal resignation with immediate effect.
The FWC decided that Ms Carter’s resignation was a “heat of the moment resignation”, and she was dismissed under section 386(1)(a) of the Act because MTS treated the resignation as terminating the employment rather than clarifying with Ms Carter after a reasonable time whether she genuinely intended to resign. Especially in the circumstances where Ms Carter had, while upset, verbally resigned within minutes of being accused of extremely serious allegations that were not fully the truth.
The FWC also considered Ms Carter’s resignation as a “forced resignation” and the dismissal falls into section 386(1)(b) of the Act in so far as the serious allegations against Ms Carter were at least partially demonstrably false, which put Ms Carter in a position where she felt no alternative to resign because of the fear of being under pressure at work and threats of fabrication of allegations against her.
Factors Employers Need To Consider
The employer must consider the surrounding circumstances of the resignation, for example, the employee must not resign in the heat of the moment or under emotional stress or extreme pressure from the workplace.
If the employer identifies or ought to know such resignation was raised in an emotional manner or due to workplace pressure, the employer should give the employee a reasonable time to think again rather than accepting the resignation immediately.
The employer should take reasonable steps to ascertain the employee’s genuine intention to resign and terminate the employment to avoid constructive dismissal dispute.
About Us
Our principal lawyers have acted in over 400 employment law matters, including unfair dismissals, general protections, executive rights, bullying, discrimination and victimisation cases. If you have concerns of “heat of the moment” or “forced resignation” or a dismissal dispute and would like to obtain legal advice, please contact our office for a free consultation at (02) 9262 5495 or contact Mr Murdock at dmurdock@mclp.com.au, or subscribe to our newsletter by visiting https://mclp.com.au/publications/.
This article is not legal advice and should not be treated or relied upon as legal advice.