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July 25, 2018

Can a worker who resigns still make a claim against their employer?

One of our worker’s performance had been declining over the past 6 months and she has not been meeting her targets. We offered her training assistance and in-house support and even a reduced role (reduction in responsibilities and salary) or a redundancy. She took the reduced role but in the 2 months following this, her performance has continued to deteriorate and she has taken personal leave days.

Last week, in a one-on-one meeting, she asked if she should resign as she felt she couldn’t do the work and was suffering from depressing. I said I could not respond to this as I am not a neutral adviser. I further advised her not to make a decision if she felt unwell. I called in her manager to the meeting and the employee verbally resigned. She has not followed this up with written advice, so I sent an email confirming what she’d said in the meeting and asked her to reply, but I haven’t received a reply yet.

Can we consider this resignation final? If we do, does this mean the staff member has no further recourse to say that she had a mental illness and was not allowed sick leave?

The employee resigning from her employment would not affect her ability to lodge a general protections claim against the company or a claim for workers’ compensation. This does not necessarily mean that she will, or that she would succeed in bringing a claim. Every situation is different and will depend on each individual’s circumstance. If you are concerned about the employee bringing a claim against the company, you could consider asking her to provide a deed of release in exchange for the company making an ex-gratia payment to her.

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