An employer should be active in seeking to determine whether the resignation of an employee is real and meaningful, and intended to be effective, if there is any doubt on an objective level about that, for example when an employee resigns in a “heat of the moment” context.
“If I am wrong about that, and Mr Sjahlendra genuinely believed that Mr Wheeler had
resigned, he had a duty to clarify or confirm with Mr Wheeler after a reasonable time that he
genuinely intended to resign. In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman
v Shahin Tavassoli2
, a Full Bench of this Commission summarised the position under the Act
in relation to resignation that may amount to a termination at the initiative of the employer and
observed, in relation to section 386(1)(a), that:
“(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where,
although the employee has given an ostensible communication of a resignation, the
resignation is not legally effective because it was expressed in the “heat of the moment”
or when the employee was in a state of emotional stress or mental confusion such that
the employee could not reasonably be understood to be conveying a real intention to
resign. Although “jostling” by the employer may contribute to the resignation being
legally ineffective, employer conduct is not a necessary element. In this situation if the
employer simply treats the ostensible resignation as terminating the employment rather
than clarifying or confirming with the employee after a reasonable time that the
employee genuinely intended to resign, this may be characterised as a termination of the
employment at the initiative of the employer.”
Wheeler v Daniel Sjahlendra T/A Al Dente [2023] FWC 1071 delivered 9 May 2023 per McKinnon C