In Bonser v Nexus (Aust) Pty Ltd (2016) (Bonser), an employee argued that his notice of resignation was invalid because he did not give it in writing. In refusing the application, the Full Bench was satisfied that the verbal resignation was sufficient to affect the termination of employment.
An employee will only have unfair dismissal protection if they are dismissed at the initiative of the employer. This principle includes forced resignation, i.e. when an employee considers there is no other option but to resign.
The courts have also considered resignations given by employees in the ‘heat of the moment’. In these cases, the circumstances of the resignation are said to put the employer on notice that further inquiry is desirable to see whether the resignation was really intended.
In the Bonser case, at first instance, Deputy President Binet held that the employee was not entitled to an unfair dismissal remedy because he had not been dismissed. He concluded that the employee had given notice of his resignation to his employer, Nexus.
The Deputy President further stated that Nexus was entitled to rely on the verbal resignation and that there is no evidence that he had offered his resignation in the heat of the moment.
On appeal, the employee argued that the resignation was ineffective because he had not given it in writing. A term of the employment contract stated: ‘You may resign from your employment with the employer by giving notice in writing’. The employee said that as he had failed to give notice in writing, the resignation did not take effect.
The Full Bench disagreed, stating, “Even if a written resignation is required by a contract, a resignation is not necessarily invalid because it is verbal.” Furthermore, the employee did not seek to withdraw his resignation until a few days later, which he only asserted “was not given in writing”.