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When is a resignation a … dismissal?

It’s not uncommon, right?

Emotions can run high in a workplace. No less than when an employee and employer see a situation differently, with the former feeling bullied and the latter seeing laziness, inattention or incompetence. Such emotionally charged discussions can sometimes lead people to act rashly. In the case of employees, that can mean making statements in the heat of the moment that seemingly amount to a resignation.

How should an employer treat such ‘resignation’?

The Fair Work Commission (the Commission) recently analysed this situation. Their finding highlighted where it can go wrong for employers in emotionally charged scenarios with their employees.

What Happened

In the recent decision of Tao Yang v SAL HR Services Pty Ltd, the employee (Yang) worked as a storeman for the employer (SAL). SAL said that the worker was constantly late for work, was tardy, did not follow reasonable directions, and did not follow correct processes.

On 6 February, Yang’s supervisor was annoyed due to the Yang arriving some minutes late to work, and not doing his job properly. He raised this issue with the worker. This led to an emotion charged interaction with raised voices, pointed fingers and allegations that the worker was being treated “more strictly” than his colleagues. In the moment, Yang aggressively slammed a metal lighting track down on a packing station.

Following this exchange, Yang said words to the effect that he had had enough and wanted to leave and wanted to/would quit his job. Yang then spoke with SAL’s General Manager.

After this, the supervisor told Yang to “calm down”. Yang responded by removing himself from the warehouse. In a final exchange between the pair, the supervisor stated that he would respect Yang’s choice of wanting to leave/quit and that parting ways would be the most appropriate course of action. Yang drove home.

Later that day, a representative of the employer sent the worker an “Acknowledgement and Acceptance of Resignation Notice” via express post, accepting the oral resignation notice made by Yang.

The Decision

Ultimately, the Commission found that Yang had not resigned. Instead, Yang had been dismissed due to the circumstances in which the ‘resignation’ was made. The Commission found that the resignation was made “… during a highly emotional discussion, and it could not be said that an actual resignation was provided”. The Commission said that the employer should have allowed adequate time for the emotions of the employee to cool, and then confirm the intention to resign with the employee.

The Commission then considered the circumstances of the dismissal, and whether it was an unfair dismissal. On various grounds, it was found that the dismissal was unfair. The Deputy President summed up the ruling by stating that “although the conduct, attitude and performance of the worker on the day in question was not appropriate, his dismissal was disproportionate and harsh”.

SAL had to pay the employee $4,402.90 plus superannuation.

What Does This Mean for Australian Employers?

This is a timely reminder for employers to consider your responses to an employee in an explosive or emotionally charged situation. In this situation, the Commission found that, in the case of a ‘resignation’ by an employee during a heated argument, “it may be unreasonable to assume a resignation and accept it immediately”.

In this case, there was not a reasonable amount of time to allow for the de-escalation of the argument, so the ‘resignation’ did not represent the employee’s express intention of quitting or resigning from his role.

Employers should be aware that a ‘heated resignation’, if accepted, may amount to an unfair dismissal. To avoid this, employers should confirm that the intention to resign was still present after a reasonable amount of time had passed following an argument or “highly emotional discussion”.


This article was prepared by Hicksons Lawyers for Australian Sign & Graphics Association. 


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