Unfair dismissal and resignations

Most Australians are familiar with what is commonly (but not necessarily technically) known as a constructive dismissal which is a generic expression for the effect of circumstances in which an employee resigns from his or her employment in circumstances which the law regards as a dismissal or a termnation of employment at the initiative of the employer.

There is a subsidiary issue in this legal space termed “heat of the moment resignations” which refers to the legal effects of a resignation which is tendered by an employee to an employer but which the law regards as ineffective unless and until the employer can be sure that it is sincere and capable of being accepted; even though as a general rule of law the tendering of a valid resignation by an employee operates immediately and does not require that it be accepted by the employer to be effective.

Here is the issue at play in a Fair Work Commission case.

“Heat of the moment resignation

It is an established principle, that an employer is generally able to treat a clear and unambiguous resignation as a resignation. 31

However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise such that an employer may be required to allow a reasonable period of time to pass before accepting the resignation. 32 Further, the employer may have a duty to confirm the intention to resign, if put on notice during that reasonable period that the resignation was not intended.33

The evidence of House of Brews, and its supporting witness evidence, clearly demonstrates that following a period in which Mr Hewa Cottaghe made a call to his family, Mr Hewa Cottaghe returned to the work premises and said words which had the effect of confirming he was resigning with immediate effect, and was therefore no longer an employee of House of Brews.

In the circumstances, I find that this satisfied an unambiguous resignation from his employment with House of Brews, and was not a resignation given in the heat of the moment such that the employer would have a duty of confirming Mr Hewa Cottaghe’s intention to resign, before accepting the resignation. Nevertheless, I accept House of Brews’ evidence that Mr D Kanaghines made a number of attempts to contact Mr Hewa Cottaghe following his resignation, and did not take steps to cancel his sponsorship until a week had passed, during which Mr Hewa Cottaghe was largely uncontactable.”

Hewa Cottaghe v South Pacific Restaurant Unit Trust T/A House of Brews (2019) FWC 1539 delivered 8 April 2019 per Hunt C