Resignation is a situation where the employment has been terminated on the employee’s initiative. For a resignation to be valid, the employee must demonstrate their will to terminate the employment and do so with 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). In such cases, the resigning employee would have no claims against the employer.
However, in some cases, emotions take over and an employee might resign ‘in the heat of the moment’. In these cases, the Australian law recognises a doctrine of ‘special circumstances’ and the employer is obliged to follow certain steps before accepting the resignation. Failure to do so may have serious consequences for the employers and give rise to unfair dismissal claims.
How can we help you?
Talk to us today and our employment team will provide you with expert legal advice about the following:
- Constructive dismissals;
- Special circumstances;
- What steps to take before accepting a resignation; and
- Unfair dismissal claims.
What is constructive dismissal?
Constructive dismissal means forced resignation; where an employee has no other choice but to resign. The onus lies with the employee to show constructive dismissal if they wish to make a claim against their employer for unfair dismissal. The employee must prove that their resignation was not voluntary and that it was due to their employer’s actions or failure to act.
What special circumstances can apply to resignation?
Generally, employers are free to treat a clear and unambiguous resignation as a valid resignation. In such cases, employees have no right to withdraw their resignation notice (unless agreed otherwise with their employer). However, an exception to this 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’ and if this occurs, the employer is required to take the following steps:
- Follow up with the employee on their resignation, and
- Request a verification in order to clarify the employee’s true intentions.
Should the employer fail to do so and simply accepts the employee’s resignation made ‘in the heat of the moment’, the employer may be subject to an unfair dismissal claim.
For further information, see our article: Can I withdraw my resignation from work?
Has your employee resigned under pressure?
Your employee may request to withdraw their resignation, in this instance they must submit a written request for your review. It is advisable at this stage to seek legal advice before taking further action.
Our employment experts will take you through the process and advise you on your options and how to protect your rights and interests. We will make sure that you comply with all the relevant rules so that your employee has no grounds to file an unfair dismissal claim or general protection claim.
What else can we help you with?
Contact our team today to discuss how we can best help you. Elringtons will provide you with expert legal support in all areas of employment, for example:
- Termination of employment – unfair dismissal or forced resignation?
- Dismissal from employment
- Unfair dismissal
- Workplace investigations
- Redundancies
We offer an initial consultation and review of your case for a flat rate fee. Contact us for more information.
elringtons lawyers regularly provide legal advice in relation to a range of commercial matters. Please contact our Business and Commercial Team for more information or to make an appointment call (02) 6206 1300
