When will a resignation not count?

Surprisingly often, the Fair Work Commission is required in an unfair dismissal case to determine whether an employee has resigned or been fired.

And equally as often, that issue is not entirely clear. Fort example what is the legal situation if an employee loses his or her cool and abuses the boss in terms which would not normally be consistent with a harmonious employment relationship. Is that a resignation. Can it be accepted by the employer? Can it be withdrawn by the employee? Well here is the answer.

“The preliminary issue to be determined in this case was whether Mr Tan did resign or not on Friday, 11 November 2016.

The Courts have in the past found that where there are special circumstances it may not be reasonable to immediately accept an apparent resignation but rather that a reasonable period should first be allowed to pass to see if circumstances arise which put the employer on notice that it would be desirable for them to make further enquiry to ensure that resignation was really intended. That said where an employee unambiguously communicates their intention to resign no further enquiry is required.

A Full Bench of the Australian Industrial Relations Commission in Ngo v Link Printing Pty Ltd (1999) 94 IR 375 explained these principles and then applied them as follows:

“[12] We have had regard to the various decisions to which we were referred relating to resignations of employment. In particular we have considered the decisions that assert the existence, in certain circumstances, of a duty to clarify a resignation. The position was referred to by Murphy JR in Minato v Palmer Corporation Ltd [(1995) 63 IR 357 at 361-2] as follows:

‘The legal position was set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said:

“In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise…

However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.”

Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows:

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as ‘special circumstances’. Where `special circumstances’ arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer’s risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively.”’

[13] We are prepared to assume, without so deciding, that it was incumbent on Link, following Mr Ngo’s statement that he resigned, to allow a reasonable period of time to elapse to ascertain whether circumstances arose during the period that put Link on notice that further enquiry was necessary to see whether Mr Ngo’s resignation was really intended. Mr Ngo spoke his words of resignation on the afternoon of 8 June 1998. He then resumed work for the balance of the shift, went home, resumed work the next day and, when approached by Mr Corrigan, said that he was not resigning. In our view, any reasonable period of time had elapsed well before Mr Ngo said this.

[14] We have considered the evidence of Link’s witnesses as to their reaction to Mr Ngo saying that he resigned. Even if they did not believe Mr Ngo when he said that he resigned, the fact remains that Mr Ngo did not tell Link, until the following day that he was “not resigning”.

[15] We have also considered the effect of Mr Corrigan’s words (as recorded in Mr Ngo’s statement) “Okay, you must give us a letter in writing, and give it to me tomorrow”. It was submitted by the appellant that a contract was formed under which Link agreed to accept the withdrawal of the resignation and the resignation would only take effect if it was submitted in writing. In our view, this submission cannot be sustained. There is, we think, nothing in the evidence to support the view that the brief reference to providing a letter created the contractual relationship contended by the appellant.

[16] The next point is whether Mr Ngo was entitled to withdraw his resignation. The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission (referred to in paragraph [8]). The conclusion to be drawn from that case is, we think, clear – a unilateral withdrawal of a notice of termination of a contract of employment is not possible (p.110). There was some suggestion by the appellant that Birrell has been overtaken by later cases. We do not agree; Birrell was applied by the Federal Court in 1993 in Saddington v Building Workers Industrial Union [(1993) 49 IR 323 at 336], by the Commission in the same year in Ampol Ltd v Transport Workers Union of Australia [(1993) 54 IR 134 at 138] and in 1995 by Ryan J as a member of the Industrial Relations Court in Fryar v Systems Services Pty Ltd [(1995) 60 IR 68 at 87-88].

[17] In Birrell, Gray J referred to Martin v Yeoman Aggregates Ltd [1983] ICR 314, a decision of the Employment Appeal Tribunal (UK), in which it was held that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat had died down. Gray J said that he regarded this decision as confined to its facts and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly (pp.110-111).

[18] In Mr Ngo’s case, assuming in his favour that his resignation was given in the heat of the moment, it was not retracted swiftly. In our view, Mr Ngo was not entitled to withdraw his resignation on the day following the giving of it.” (Underlining added.)

The Commission’s role is to judge objectively whether indeed Mr Tan intended to resign on Friday, 11 November 2016.

Mr Tan’s submissions impliedly recognise, quite rightly, that words he agrees he said on that Friday such as “You can keep your fucking job” could objectively be understood to amount to a resignation dependent upon the circumstances.

In any event in this case I am satisfied that the multiple statements Mr Tan made to Mr and Mrs Vickery on the Friday, which included “You can keep your fucking job” and “I resign” and “No, I am going, I’ve had enough, I am out of here” unambiguously meant he had resigned at that time.”

Tan v Vital Packaging (2017) FWC 887 delivered 21 February 2017 per Williams C