The law surrounding unfair dismissal in Australia is plenty.
Avenues are afforded to employees in order to ensure that their employment is not terminated harshly, unjustly or unreasonably.
A preliminary matter which has become contentious is whether termination has occurred at the initiative of the employee or the employer. In determining if an employee has a right to lodge a complaint for unfair dismissal, the Fair Work Act 2009 requires that the termination must be at the initiative
of the employer. The law has found it difficult to ascertain which party initiates the termination where resignation is given by an employee during an emotional outburst.
This will generally occur where an employer seeks to discuss disciplinary matters with an employee. Where an aggravated employee provides their resignation in ‘the heat of the moment’, an employer must err on the side of caution when accepting this as an unequivocal termination of employment. Case law has established that an emotional outburst cannot be validly relied on as resignation by the employee and if such is solely relied on, the
conduct may amount to constructive dismissal and therefore held to be termination at the initiative of the employer.
In order for the court to be satisfied that the termination was at the initiative of the employee, it must be shown that the termination was a ‘deliberate, voluntary and considered action’. In order to ensure that such is the case, a prudent employer should adopt a termination of employment policy that ensures an employee is afforded procedural fairness in accordance with the law.
Confirmation of the resignation must be requested by the employer in writing after the employee has had a reasonable amount of time to cool down. This may include a formal letter of resignation, or an email sent by the employee confirming their intention to terminate their employment. Written confirmation will provide the employer with evidence to support the termination in the event an unfair dismissal claim is made by the employee. If the employee refuses to provide written confirmation of their resignation, an employer must ensure that a meticulous record of events is kept of the incident as evidence of the employee’s initiation of the termination.
In the event an employee attempts to rescind a verbal resignation provided during an emotional outburst, and an employer refuses to accept this, case law suggests that such actions may result in a constructive dismissal at the initiative of the employer. With the adoption of appropriate procedures, an employer is able to avoid liability for unfair dismissal, and provide to an employee procedural fairness.
