If you have suddenly resigned from your job without clearly thinking about the consequences and then, after calming down, you realised your fatal mistake, do not give up just yet.
If you do not want to lose your job, you may be able successfully withdraw your resignation.
Resignation ‘in the heat of the moment’
Resignation is an independent legal act by an employee. For a resignation to be valid, the employee must manifest their will to terminate the employment, and to do so with appropriate notice. In most circumstances, a resignation will be based upon a thoughtful and thorough action (because of a better job offer, moving interstate, or changes in personal circumstances). However, in some circumstances, emotions take over and you might resign ‘in the heat of the moment’. In these cases, the Australian law recognises a doctrine of ‘special circumstances’.
What is the doctrine of ‘special circumstances’?
The general rule is that employees have no right to withdraw a valid resignation notice, and that such a notice may only be withdrawn with the agreement of their employer. However, an exception to the rule exists when an employee resigns ‘in temper or in the heat of the moment or under extreme pressure’. These are referred to as ‘special circumstances’.
Therefore, if you resign ‘in the heat of the moment’, your employer is obliged to attend to the following steps:
- Follow up with you on your resignation; and
- Request a verification in order to clarify your true intentions.
Should the employer fail to attend to these and simply accepts your resignation made ‘in the heat of the moment’, the employer may be subject to an unfair dismissal application.
What do I do if I want to withdraw my resignation?
- As soon as possible after you calm down, you must submit a written request of withdrawing your resignation. It is essential to retract your resignation swiftly. In your request, clarify your true intentions.
- Follow up with your supervisor and HR department in relation to the withdrawal.
- Attend to work as usual.
- Wait for employer’s decision.
Should your employer deny your request, you may wish to consider an unfair dismissal application. You must act quickly, as a person only has 21 days from the date of their dismissal to make an application at the Fair Work Commission.
Legal assistance
Here at elringtons, we have lawyers specialising in employment law and unfair dismissal applications. Thomas Maling and Gabby Bridger act for workers in relation to employment rights. We make sure that our clients are provided with quality legal advice and professional support.
For more information or to make an appointment contact our Litigation team:
