In the ordinary course of events, once an employee communicates their resignation to an employer, and the employer accepts the resignation, it is generally considered final, and the employee usually cannot retract it if they change their mind.
But what happens if an employee resigns out of anger or frustration in the ‘heat of the moment’ – is this a genuine resignation?
The short answer, no. As with most rules, there is an exception in cases where an employee submits their resignation impulsively in the ‘heat of the moment.’
In this context, it’s crucial to refer to section 386(1) of the Fair Work Act 2009 (Cth), which defines a situation where a person has been dismissed as follows:
- 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 conduct, or a course of conduct, engaged by the employer (also known as ‘constructive dismissal’).
The case below serves as an illustrative example, highlighting the risk businesses face if they fail to take proactive and reasonable steps to confirm an employee’s true intentions before accepting a ‘heat of the moment’ resignation.
Case study: Tao Yang v SAL HR Services Pty Ltd [2023] 1325
Earlier this month, the Fair Work Commission (Commission) ruled in favour of an employee who was constructively dismissed after his ‘heat of the moment’ resignation was accepted by his employer.
Mr Yang, a store person for SAL HR Services Pty Ltd, had been involved in an argument with his direct manager regarding his tardiness and unsatisfactory performance. During that argument, Mr Yang, in a highly emotive manner, said words to the effect of, “I’ve had enough, and I want to leave!”.
Shortly after this dispute, Mr Yang contacted the general manager via telephone to complain about the way in which he was being treated before again returning to the workplace to speak with his direct manager. The direct manager highlighted that Mr Yang had verbally resigned and that the business deemed that parting ways was ‘the most appropriate course of action’. Following this interaction, the employer sent a letter by express post to the employee confirming receipt and acceptance of Mr Yang’s oral resignation.
In their defence, SAL HR Services submitted that Mr Yang had willingly and voluntarily resigned and that they had subsequently accepted this via the letter sent by express post.
However, in considering whether Mr Yang had been dismissed, Deputy President Hampton stated that where a, ‘resignation is given in the heat of the moment under extreme pressure, it may be unreasonable to assume a resignation and accept it’. Albeit Mr Yang had indicated he wanted to leave, Hampton DP noted that ‘during a highly emotional discussion, it could not be said that an actual resignation was provided’.
Hampton DP concluded that Mr Yang’s conduct on the day, while unprofessional, did not warrant dismissal, as the concerns about lateness had never led to disciplinary action or warnings. Ultimately, the Commission determined that Mr Yang had been unfairly dismissed and awarded him $4,409.90 in compensation.
What to do when faced with a ‘heat of the moment’ resignation?
When faced with a ‘heat of the moment’ resignation, as a manager or human resources professional, don’t accept such a resignation on face value. To reduce the likelihood of a successful unfair dismissal claim, adhere to the following steps:
- give the employee a reasonable period of time to ‘cool off’ and reflect;
- contact the employee to ascertain if they actually intended to resign;
- if appropriate, schedule a meeting to discuss the employees concerns and ask if they would be willing to withdraw their resignation; and
- if the employee confirms that they wish to resign, request that the employee confirm their resignation in writing.
Want to know more?
If you require guidance on accepting a ‘heat of the moment’ resignation, please contact our Workplace Relations team via the National Retail Association’s hotline on 1800 RETAIL (738 245).