Employee who submitted resignation notice barred from pursuing unfair dismissal claims

Employee who submitted resignation notice barred from pursuing unfair dismissal claims

It is often difficult for employees who have submitted their resignation in writing to successfully pursue an unfair dismissal. Generally, claims are limited to situations where employees acted out of character or `in the heat of the moment’, or where they argue that the separation resulted from an untenable situation caused by the employer, often referred to as a `constructive dismissal’.

The principles were recently covered in a case before Commissioner Paula Spencer involving an administrative officer working for catering giant Compass Australia (Compass) at their site at Groote Eylandt in the Northern Territory. The employee had mistakenly believed she was to receive a serious written warning, and during the discussion, submitted a handwritten note advising of her resignation to her supervisor on 19 January 2021. It was accepted that there had been personality clashes between the employee and the supervisor.

At the hearing, the employee claimed that the employer had taken advantage of her while in a fragile state of mind by providing her with a scrap of paper and encouraging her to submit her resignation during a disciplinary meeting.

She claimed that the supervisor, in doing so, had acted towards her “in a cunning Machiavellian harsh, unjust and unfair manner”.

In contrast, her manager stated that he contacted the employee several times after becoming aware of her resignation, as he wanted to know further details as to the reasons for her resignation, as well as to undertake a general welfare check which was standard procedure for employees working on remote sites. He tried unsuccessfully to explain that the meeting with the supervisor was merely a counselling session without any long term impacts on her employment. He stated that,

“at no time did the Applicant discuss with him that she wanted to retract her resignation. His view of the conversation was that she was not all interested in retracting it”.

In rejecting her claims, Commissioner Spencer determined that there was no `jostling’ of the employee encouraging her to resign. There was insufficient evidence to consider that the employee’s actions resembled a `heat of the moment resignation’.

Despite claiming she had emailed four managers seeking to revoke her resignation, she failed to provide copies of any documentation to support this. Further, she noted, “There was no probative evidence that the employer had brought about the circumstances of the resignation”.

Consequently, “The termination of the employment was at the insistence of the employee”.

Her application was rejected.

J H v Compass Group (U2021/893) 5 July 2021

For questions about responses to resignations, terminations, 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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