Last week I posted a blog about the legal implications, particularly for unfair dismissal cases, of heat of the moment resignations. Generally, the law will be content to hold a person liable for his or her own actions however the Fair Work Commission has consistently said that there will be occasions when an employee will be permitted to revoke a resignation, for example when it was delivered in the heat if the moment and was an expression of frustration rather than the delivery of an enforceable and effective resignation. Some may think that the somewhat paternalistic view of the Fair Work Commission may be evidence of an inherent bias by the enabling legislation towards employees, but I am not going to go there.
You may be your own judge from the following passage from a recent decision of a senior member of the Commission.
“Mr Wederay’s verbal resignation was impulsive and made in the heat of the moment. Ms Crook herself said that Mr Wederay was “high and low” and “up and down” 39 during the conversation, one moment refusing to sign the warning, the next saying he would, the next refusing again.40 I find that he was frustrated with prior counselling and warnings given to him by Ms Crook, believing them unwarranted or concerning minor issues. Rightly or wrongly, he felt that Ms Crook had formed a negative view about him since he was injured at work in mid-2016 and had spent six months on a managed return to work plan. He had verbally foreshadowed resigning two weeks earlier. On 19 April, in the heat of the moment, the written final warning about the 31 March incident tipped him over. His previous threat became a reality. He said he was resigning and he then affirmed he was resigning. He took off his security pass, tossed it on the table, and left. In the heat of that moment, he was not open to negotiation or persuasion to another course.
The law recognises that, in special circumstances, a heat of the moment resignation may not result in termination of an employment contract if an employee acts quickly to inform the employer that it was not intended and if, in the circumstances, it was unreasonable for the employer to act on the resignation. 41
I find that the reality of his heat of the moment resignation hit home to Mr Wederay the following day when he realised that his employer had forwarded his security pass to airport security control, rendering him unable to work future shifts. For that to occur, he had to re-negotiate his way back into the workplace and to do that he had to engage with management. He did not turn up for his shifts on 22 or 23 April but did make two aborted visits to the office on 21 and 24 April, unsuccessfully phoned Mr Crook and Mr Priestley on 24 April, unsuccessfully emailed Mr Priestley on 26 April, sought advice from his union and then a solicitor. On his instructions, his solicitor emailed Mr Priestley on 27 April.
These actions are consistent with a person who had second thoughts about his verbal resignation and was seeking to clarify whether it had been accepted. While he did not at any stage recant his verbal resignation, he did not confirm it in writing despite Ms Crook’s request that he do so and his heat of the moment promise to do so. While the evidence is that he did take progressive steps over seven days to ascertain his employment status, he did not move with speed to seek that clarification.
Although I make some allowance for Mr Wederay’s casual demeanour, different cultural background and lack of specialist knowledge about employment rights, I do not consider that Mr Wederay acted with sufficient urgency or decisiveness to inform his employer that either (in his view) he had not resigned or to recant his verbal resignation. Mr Wederay’s post-resignation conduct, in isolation, is not sufficient to constitute special circumstances that would re-characterise a heat of the moment resignation as a dismissal.”
Wederay v Airline Cleaning Services Pty Ltd T/A Cabin Services Australia (2017) FWC 4603 delivered 6 September 2017 per Anderson DP