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Employer under a positive duty to question employee’s resignation

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In our experience it is sometimes very difficult to ascertain whether it was the employer or the employee who terminated an employment relationship. This is especially the case where the employment relationship breaks down suddenly and the parties do not exchange any formal documentation before parting ways. Unfortunately, the fine distinction between being “fired” and resigning has important legal consequences. Specifically, this may effect:

  • whether the employee is entitled to make an unfair dismissal claim;
  • who is entitled to provide notice (or, in the case of the employer, payment in lieu of notice); and
  • the employee’s entitlements following termination under applicable social welfare legislation.

This distinction was considered in a recent decision by Fair Work Australia. This case involved an airport security officer who was accused of stealing a bottle of perfume that had been confiscated from a passenger. The employer immediately conducted a disciplinary interview, during which time the employee made comments to the effect that she intended to resign. Following this interview the employee collected her personal effects and was escorted off the premises. However, the employee had a change of heart and a week later they presented for work. When the employee was turned away by the employer, the employee filed an application for an unfair dismissal remedy claiming that they had been fired.

Fair Work Australia ultimately determined that the employee’s resignation was effective and that the unfair dismissal claim must fail. However, Senior Deputy President Richards did note that an employer is under a positive duty to question an employee’s apparent resignation if the following conditions are met:

  • the employee was in an emotional state when they purported to resign;
  • the employee has not otherwise acted in a way destructive to the employment relationship; and
  • the employee attempts to re-engage their employment within a reasonable time.

This is a highly technical area of employment law that is fraught with risk. We recommend that you should always seek advice if you are unsure who terminated the employment relationship. Importantly, you should seek this advice before or as soon as possible after the termination. If you would like any assistance please contact one of out Workplace Relations lawyers.

Author: Laughlin Nicholls