We know people can say or do things that we do not mean when we are under pressure, feeling stress or are angry.
In rare incidences (often in the context of disciplinary meetings), an employee may indicate that they wish to resign only to later try to withdraw their resignation or claim that they did not really resign. Can a resignation given “in the heat of the moment” be accepted or later be retracted by the employee?
In the case of Sean Jen Eyong Tan v Vital Packaging  FWC 887, the Fair Work Commission (FWC) considered an unfair dismissal application where the termination of employment arose from an argument with management.
On Friday 11 November 2016, the employee met with a Director after taking issue with her repeated questioning of why he was in the warehouse. It was accepted by both parties that the meeting became heated with the employee becoming agitated and angry. The employee yelled and raised his voice at the Director and pointed his finger at her. The evidence from the employer was that the employee stated “I don’t care”, “You can have your f**king job”, “I resign” and “I don’t f***king care” before leaving the meeting, despite an attempt to calm him down.
The employee claimed that he was told to leave the meeting and that the employer would ring him the following day.
On the following Monday 14 November 2016, to the employer’s surprise, the employee attended for work. The employer attempted to speak to the employee to tell him that he had resigned and that he should leave the premises.
The employee later lodged an unfair dismissal application. He alleged that the employer terminated his employment on 14 November 2016 and denied that at any stage he resigned. The employee agreed that at the meeting he swore and stated that “You can keep your f**king job” but maintained that this was not meant to be a resignation.
The employer submitted that based on the employee’s conduct and words at the meeting, it was understood that he resigned. Therefore, the unfair dismissal application should be dismissed. Significantly, another employee who was outside the meeting room provided evidence that it was her impression that the employee had quit given the tone of the meeting and that the employee had subsequently collected his belongings and left the office.
The employer also argued that even if the employee provided his resignation “in the heat of the moment”, the employee had considerable time to withdraw his resignation but at no point did he do so.
The Commission noted the case law principles that:
The Commission was satisfied that the employee’s comments in the meeting did mean that he had resigned at the time. However it was also accepted that they were said in an argument which amounted to a special circumstance and that the employer was to allow reasonable time to see if the employee did not intend to resign. The Commission noted that the employee resigned on midday Friday and had the opportunity for the remainder of the day and over the weekend to withdraw his resignation if he wished to, but did not. Given the employee’s conduct during and after the meeting, the employer was entitled to accept the employee’s resignation.
As the Commission held that the termination of the employee’s employment was by way of resignation and not by the employer, the unfair dismissal application was dismissed.
Once a resignation is clearly communicated and accepted by the employer it cannot later be withdrawn by the employee unless the employer consents. Care should be taken in giving effect to resignations which are made in special circumstances. A court or tribunal may consider whether the employee was entitled to retract the resignation or if further enquiries should have been made by the employer to confirm the resignation before accepting it.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
02 9256 7500 | firstname.lastname@example.org
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