Can you accept an employee’s heat of the moment resignation?
Heat of the moment resignation are not rare. They often occur following a disagreement with an employee where they proclaim “I am done”, “I am out of here” or even “I quit!” before walking away. In some instances they may even take their belongings with them. But does this mean that they have resigned? What do you need to do when accepting a heat of the moment resignation?
The normal rule is that once an employee clearly communicates their resignation they cannot later withdraw that resignation however, there is an important exception if an employee resigns when under extreme pressure or in the heat of the moment. A heat of the moment resignation can put you at risk of an unfair dismissal application for constructive dismissal so it is important that you are mindful of how you respond to a in the heat of the moment resignation.
An example of how this may be applied in practice can be found in a 2018 Fair Work Commission (“FWC”) decision relating to an aged care home where an employee had been removed from a training session and taken to a disciplinary meeting where she was informed that there would be an investigation into allegations of misconduct. The employee was required to wait 2 hours outside the meeting room. She assumed the allegations of misconduct related to a six-pack of beer a client had given her. While waiting for the meeting, she drafted a resignation letter.
During the meeting, she was told there were a series of secret recordings that allegedly showed her neglecting her duties, ignoring elderly residents’ requests for assistance and laughing at the deaths of two patients. The employee was not shown the video footage that was the subject of the accusations and investigation. The FWC said that the employer had an obligation to show the footage as the footage formed the basis of the allegations against her.
The employee was told that there would be an investigation but was visibly upset and distressed and insisted on providing her resignation letter during the meeting. When she attempted to rescind her resignation the following day, her manager refused and stated that she was no longer an employee of the company.
The employer argued that the employee voluntarily intended to resign from her employment. Despite conflicting evidence, the employer argued that the employee was not so affected mentally or emotionally that she did not know what she was doing and that her signed letter of resignation represented an active, conscious and deliberate decision to end the employment relationship.
The employee rejected this argument and submitted that her actions were not of someone exercising ‘free will’ rather her resignation was a ‘heat of the moment’ event. The letter she provided was poorly drafted, was incorrectly dated and reflected that her English was limited. Further, she amended the letter by scribbling out the 4 weeks’ notice period.
The FWC carefully considered the events in the disciplinary meeting and decided that the resignation was ineffective and that she had been dismissed at the initiative of the employer. Regard was given to the employee’s lack of understanding as to the allegations against her and her poor English language skills. The general manager should have paid greater attention to the employee’s irrational behaviour and emotional state by not accepting her resignation in these circumstances.
There are a number of key takeaways from employers from decisions like this. Where these special circumstances exist and there is some uncertainty surrounding the employees intention to resign an employer should ensure that they do the following:-
- clarify the resignation with the employee and ask them to reconsider if appropriate;
- allow your employee a reasonable ‘cooling-off’ period to confirm his or her resignation. You may decide to ask them to confirm their resignation in 2-3 days time;
- confirm their resignation by written correspondence to the employee; and
- keep adequate records surrounding the purported resignation including considering whether a witness should be present during meetings to take notes on what occurs.
