By Andrew Hobbs
SETTING an agreed end-date for a worker who has resigned will help to avoid misunderstandings and, as in a recent case, a visit to the Fair Work Commission (FWC).
A Melbourne restaurant and function centre had to defend its actions when a former employee took the business to the FWC on allegations of unfair dismissal.
On 10 March this year, the worker had sent a text message to the general manager of the restaurant complaining about the behaviour of another staff member.
In part, the worker wrote: “I’ll speak to you tomorrow when you come in but let me know how much notice you want because I’m not staying anymore. Sorry Frank, I really like you and I’ve always given my best but I’ve had enough.”
The general manager told the FWC the worker reiterated that he was leaving when they met later that day, where he asked how much notice he needed to give.
At the time, the worker was asked to stay on until the general manager returned from leave in late April, which the worker agreed to do.
The matter was not discussed again until the general manager returned from holiday on 26 April – when he called the worker to ask about his resignation and the worker denied he had done so.
On 29 April the general manager called the worker into his office, telling him that his resignation still stood but he was prepared to keep him on for another three to four weeks while he found another job.
The worker left the restaurant immediately, saying he could no longer work with his colleagues – and later telling the FWC that he believed his employment had been terminated from this point.
Making your intentions clear
The worker told the FWC that while the intent in sending the text message was to resign, everything was “okay” following the meeting. He said he believed the resignation had not been accepted.
Commissioner Michelle Bissett disagreed, saying the message was “clear and unambiguous”, and ruling that because the worker had resigned, there was no basis for an application for unfair dismissal.
“The words are clear – ‘let me know how much notice you want’ and ‘I’m not staying anymore’ and ‘I’ve had enough’ cannot, on any construction, convey anything else,” she said.
“Even if it might be seen that [the worker] did send the message in the heat of the moment, he had ample opportunity to withdraw it – when [the manager] rang him and later that evening in his conversation… but he did not do so.”
Commissioner Bissett said the fact that the notice period was never put in writing, nor discussed for two weeks, could “create some confusion”.
“Whilst [the manager] should have done more to finalise the matter (which he accepts), I am satisfied that he took from [the worker’s] inaction that he would work out an extended notice period until [the manager] returned around the end of April,” she said.
“Having resigned and agreed to a notice period, it was no longer [the worker’s] right to unilaterally retract his resignation. His actions, or lack of action, after the resignation text cannot change the text message.”
Rules for resignations
According to the recently updated Chapter R3 Resignation of the Employment Law Practical Handbook, an employee cannot officially withdraw their resignation once it is given in clear and unambiguous terms in accordance with their employment contract.
However, there is an exception when a worker resigns in the heat of the moment – where some courts have found that an employer has a responsibility to clarify whether the employee has in fact resigned – despite what may have been very unambiguous language of the part of the employee.
In most cases, an employee must advise you of their decision to leave and what they intend their last day to be – with this date in line with a pre-agreed notice period, present in their award or enterprise agreement.
Agreeing to a date in writing will help put both parties on the same page and can, in some cases, put a decision in perspective, if it has been made in the heat of the moment.