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Employee resigns, and then wins unfair dismissal case

A bus mechanic who resigned from his employment with his employer has been found to have been unfairly dismissed by the Fair Work Commission.

In his resignation letter, the employee cited an unacceptable working environment (bullying, harassment and intimidation) and dangerous behaviours (deliberate sabotage of buses) as the reasons for his resignation. The resignation was accepted in writing by the employer.

The employee then attempted to withdraw his resignation and the employer indicated that the employee should make that request in writing. The employee never complied with that request. Relevantly, the employee continued to work, including working significant hours over the weekend.

The following week, the employee received a termination letter from the employer and was asked to leave the premises immediately. When the employee protested that he had retracted his resignation, one of the owners told him that he “…had to be seen to be doing something to save [his] company”.  The employer believed that the employee had been responsible for arranging a recent audit by the regulator that had uncovered a number of defects.

The FWC confirmed that a resignation cannot be unilaterally withdrawn and that there was no agreement by the employer to the employee’s withdrawal of his resignation.

However, the FWC did accept that the resignation was a ‘protest’ to the complaints that the employee had raised about the workplace and that he had sought to withdraw his resignation soon after. On this basis, the FWC determined it was unreasonable for the employer to act on the resignation.

It was also held that asking the employee to work on the weekend ‘…involved an acceptance of the [employee’s] withdrawal of his resignation…’ and restored the employment relationship.  The employee was awarded $20,000 in compensation.

Implications for employers: There is a long line of case law dealing with acceptance of resignations where the resignation has been given ‘in the heat of the moment’.  Care should always be exercised when dealing with this type of scenario as it may well be found that a refusal to accept a retracted resignation may give rise to an unfair dismissal.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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