Updated: Aug 1
We've all been there, the supervisor or boss has touched our last nerve, pushed a little too much and we snap, mostly in our head visualising walking out or resigning .. but what happens if you verbalise, resign in the heat of the moment, because for whatever reason it all got too much in that particular moment.
What should you do, as an employer what are your rights, does your employer have to accept, can you take it all back?
Highlighting these very questions and concerns, are two recent cases heard by the FairWork Commission (FWC); one with a casual charity worker and his employer, and the other an employee at a packaging company.
It is vital as an employer you understand what your obligations are when accepting and confirming heat of the moment resignations, this is certainly the time to pause and reflect.
In the case of Harvey v Valentine Hydrotherapy Pools Inc (2021). Not only was this a rare case but it also brings to light why employers should ask for verbal resignations after such an incident, or at least a written confirmation of a verbal resignation to negate ending up in front of the FairWork Commission.
Put simply within this case, a casual pool cleaner raised his underpayment concerns with his Newcastle based charity employer Valentine Hydrotherapy Pools, they didn't respond in the way Mr Harvey was expecting and he 'stormed out' of a meeting with them yelling ''that's it, I resign then'', as he left.
After taking a few days sick leave the employee sent a text message to his employer saying he intended to resign, however after speaking with his mother he changed his mind and sent another text to his employer saying he won't be quitting now and will attend work as per normal, which he did do.
Four days later, the employee received a termination letter from his employer, stating his resignation had been accepted. Upset at this, the employee took his complaint to the FairWork Commission.
The FairWork Commission ruled in his favour for two reasons:
The nature of the employees resignation. It was an intent to resign, not a formal resignation, not only that but the employee also retracted his intent to resign.
The employee continued to turn up for work and to do his normal job.
Employment lawyer Mariam Chalak of JFM Law shares her insights and three-tiered approach for employers to these particular circumstances with hrmonline below:
Analyse the situation. Especially if it involves high conflict. Conduct an analysis of all the circumstances. If an employee gave a verbal resignation, this could constitute a resignation but often breed ambiguity. Chalak also says; ''It is very hard to be clear and unambiguous in verbal communications, and it obviously gives rise to an argument that the verbal notice of resignation wasn't clear. But I don't think a verbal notice of resignation would, on it's own mean that it's not effective as a notice of resignation, if it has been expressed clearly and on terms that cannot be disputed''.
Allow breathing space. Allow a reasonable amount of time to pass after the employee signals an intention to resign, so both enter into conversation rational and objective. Chalak also says ''A lot of employers rush into accepting a notice of resignation, especially in high conflict situations or when there are performance management issues, or if there is a workplace investigation. The reason they do that is because a voluntary resignation in the truest sense prevents and employee from following up with an unfair dismissal application. From a best practice point of view and also to reduce the liability that a small business might be faced with, take that extra step to verify the circumstances around the resignation, because if it goes wrong, the business will essentially be grappling with a legal claim [anyway]''.
Seek clarification by sending correspondence. Chalak suggests employers get confirmation in writing. She says ''These types of matters arise because there is a lot of uncertainty. There is usually one party that hasn't communicated clearly, whether that's verbally or in writing, so to ensure that someone has resigned, you would want to do that in writing so that you could rely upon that later if the employee files an unfair dismissal application''. It's also best for an HR consultant to step in and seek that clarification, says Chalak. ''Get someone who is not a conflicted party, but an objective representative to get that clarification''.
The Society of Human Resource Management provides a great template for gaining clarification by correspondence, if your organisation hasn't got something already in place.
Another interesting case in 2017 was Sean Jen Eyong v Vital Packaging  FWC 887, the FairWork Commission considered an unfair dismissal application from the employee, where the termination of employment arose from a heated discussion with their employer.
In this particular case, the employer met with the employee for a disciplinary meeting. During the meeting, the employee became visibly agitated, raising his voice at the employer and making inappropriate remarks. The employer attempted to calm him down, but with no success and the employee, whilst using abusive words and yelling, verbally resigned before leaving the meeting and collecting his personal belongings.
The next morning to the shock of the employer, the employee attended work as usual. When he was asked to leave by the employer due to declaring his resignation the previous day, the employee lodged an unfair dismissal claim with the FairWork Commission.
Upon review of the circumstances the FWC considered that the employee had unambiguously meant to resign during the time of the meeting. The FWC held that by making these statements to the employer when he was agitated and angry, it amounted to 'special circumstances', as it was said during a heated exchange.
The Commission noted that the employee resigned on midday Friday and had the opportunity for the remainder of the day and over the weekend to withdraw his resignation if he wished to, but did not. Given the employee’s conduct during and after the meeting, the employer was entitled to accept the employee’s resignation. As the Commission held that the termination of the employee’s employment was by way of resignation and not by the employer, the unfair dismissal application was dismissed.
Tips for Employers
If there is uncertainty surrounding an employee's intention to resign, it is important to clear that up. Before accepting a verbal resignation it is a good idea to ensure that:
A conversation has been had with the employee to clarify the resignation and they have been asked to reconsider (if appropriate).
Allow the employee an agreed cooling off period to confirm resignation.
If the employee still wishes to resign, confirm the resignation to the employee by written form.
Keep detailed records to support the resignation.
According to the latest legislation around Unfair Dismissals, covering each of these points will help to ensure the employer is protected against an Unfair Dismissal claim.
Although employers should be always bear in mind that a heat of the moment resignation might be considered special circumstances by the FairWork Commission and therefore the employee could possibly take action against the employer for Unfair Dismissal to protect their workplace rights.
Any such action should be carefully considered and not taken lightly.
If you are unsure whether an employee has completely resigned or you have any questions, contact us for advice.
About the author
Sean Murray is Partner at HR Headquarters, specialising in Outsourced HR and Business Improvement for the SME sector. He is a leader in the areas of Human Resources strategy, DiSC personality profiling, Emotional Intelligence and Business Benchmarking to improve organisational capability.