An intention to resign may not actually mean resignation

An intention to resign may not actually mean resignation.png

An intention to resign may not actually mean resignation

Employers need to exercise care when responding to announcements from an employee that they intend to resign. It is possible that the proposed resignation does not occur, and the employment relationship is found to have been severed `at the initiative of the employer’, giving rise to an unfair dismissal application.

The situation was recently addressed by Deputy President Saunders in a case involving a casual pool attendant employed by a not for profit charity. The employee `RH’ had been employed as a casual pool attendant from April 2015 until his alleged dismissal on 19 February 2021. Neither party contended that he was not employed on a regular and systematic basis or that he did not have a reasonable expectation of continuing employment.

VHP operates a public swimming pool, in addition to a hydrotherapy pool facility for use by people with a disability, the elderly, and injured persons undertaking rehabilitation.

It appears that RH had a relatively uneventful work history until the election of a new management committee in September 2020. There appeared to be ongoing negativity from both sides and exacerbated by RH’s diagnosed personality order, which led to committee members finding him aggressive and difficult to work with.

On 15 February 2021, RH approached several committee members claiming to have not been paid for several hours he had worked the previous week. They responded by questioning the number of hours he worked, his daily start times and suggested he spent considerable time during work on his mobile phone. Several members claimed that RH was agitated and, during the brief meeting, stated, `that’s it, I resign then’.

He went home that night and, while reading the relevant Modern Award, formed a belief that he was entitled to a minimum payment of three hours per shift, when often he had only been paid for two. He met with the committee the following day, but did not work as he was unwell.

He worked a normal shift on Wednesday, 17 February 2021. Critically, as noted by the Deputy President, “Nobody suggested to Mr H that he had resigned and should not be at work”. After he had worked on Thursday, he sent a text stating, “I’d like you to inform committee I’ll be handing in my resignation tomorrow”. Shortly thereafter, after advice from his mother, he recanted by texting, “I’ve been told not to quit so I will be into work as per normal”.

On the following day, he commenced work but was advised during the shift that the committee had accepted his resignation, and he was handed a letter confirming their position. He did no further work for VHP. RH claimed, which the Deputy President accepted, “that he had not handed in a letter of resignation and had not resigned. He said that he only stated that he intended to resign”.

In answering the question of whether the termination was `on the employer’s initiative’, the Deputy President commented, “It plainly was. Mr H did not voluntarily leave the employment relationship. He wanted the relationship to continue…The actions of VHP were the principal contributing factor, which resulted in the termination of Mr H’s employment.

In finding the dismissal to have been harsh and unreasonable, the Deputy President determined that the relationship was likely to have continued for only a further four weeks due to the fractious relationship with several committee members. He awarded $2,778.21 in compensation.

R H v VHP Inc [2021] FWC 3373 (10 June 2021) (austlii.edu.au)

For questions about resignation, notice periods, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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