Resignation or threat to resign; which is it?


Several days ago I published a blog to the effect that the tendering of a resignation by an employee is self fulfilling in the sense that it operates to sever the employment relationship and does not require acceptance by an employer to have that effect. There are many legal cases which are authority for that proposition. I cited both a New South Wales Supreme Court decision, and one by a senior member of the Fair Work Commission as authority for that principle.

Whatever your view about whether it is right or it is wrong to do so however, the Fair Work Commission is consistently wanting to have a bob each way. In the following case, a Commissioner holds that it is legitimate for the Commission to enquire whether the intent of the employee tendering a resignation is in fact to resign, when determining whether there is a resignation; which of course is often a critical jurisdictional issue in unfair dismissal cases since the Commission’s jurisdiction in such cases can only be invoked when there is, in fact, a dismissal.

It would seem that in the real world, the law is that if an employee intends to resign and tenders a communication which is unequivocal about that, then the result is a resignation irrespective of whether the employer accepts it or not. In that case, the actions of the employer are irrelevant.

However if an employee says he or she is resigning, but doesn’t really mean it, then the response of the employer does come into play as a factor. Go figure.

“I have formed the view that the text messages sent by Mr Bartolo to Ms Harbie were equivocal. At best, they indicate his intention to resign sometime in the future. I do not accept that the proper characterisation of Mr Bartolo’s words, viewed objectively, and within the context of the employment relationship as at the time the texts were sent, amount to unambiguous words of resignation. In coming to this conclusion, I have taken into account the fact that the text messages were sent to Mr Kurban and not Ms Harbie and in the context of a deteriorating relationship between Mr Bartolo and Ms Harbie. The relationship between Mr Bartolo and Mr Kurban, however, was one in which Mr Bartolo regarded him as a good friend and confidant  who had brought him into the company, whom he relied on to resolve issues with Ms Harbie, notwithstanding his mistaken view that Mr Kurban was a co-owner of the Respondent. Indeed Mr Kurban acknowledges that he had tried to be the ‘mediator’, ‘to soothe’ and ‘to keep the peace’ between Mr Bartolo and Ms Harbie. In making this finding I have also considered the employer’s response to Mr Bartolo’s text messages as set out in paragraph [31] above.”

Bartolo v Gabriel’s Gateaux Pty Ltd T/A Gabriel’s Gateaux (2017) FWC 2551 delivered 9 May 2017 per Cirkovic C