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Case Summary

When is a resignation not a resignation?

Rodney Harvey v Valentine Hydrotherapy Pools Inc [2021] FWC 3373 (10 June 2021)

Employers often believe they are in the clear once an employee resigns.

But beware – the resignation must have taken effect or any end to the relationship will be deemed a termination.

Nina Hoang
Published:

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In the case of Rodney Harvey v Valentine Hydrotherapy Pools Inc [2021] FWC 3373 (10 June 2021) a pool attendant working for a volunteer charity organisation was disputing his hours of work and claiming an underpayment. During a disagreement, he mentioned to some Board committee members that he was going to hand in his notice. The employer took this to mean he had resigned, but they did not confirm this.

The employee did not work the next day as he said he was unwell, but he did continue to work two more shifts as per his roster. He then sent a text message that he will be handing in his resignation letter tomorrow and he was going to see a lawyer. He then sent a follow-up text saying he decided against quitting and intended to work, he then worked a shift that night. The next day when he attended work, he was informed they had accepted his resignation and he no longer worked for them.

Unsurprisingly an unfair dismissal claim was filed, with the employer arguing there was no dismissal ‘at the initiative of the employer’ due to the resignation. The employer made a clear mistake by not accepting his resignation as soon as he provided notice and permitting him to continue work, all these things suggested the relationship was continuing. The Fair Work Commission found that resignation does not take effect when notice is given.

There is a material difference between “I am resigning” or “I resign” (which is immediate) and “I will hand in my notice” (which suggests an intention they may or may not go through with). Once an employee effectively provides notice of their resignation then there is no requirement to accept it, as the employment relationship has ended.

The Fair Work Commission found there was a dismissal and that it was harsh and unfair since there was no valid reason for dismissal.

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Lessons for Employers

  • Keep copies of any resignation letters or make contemporaneous notes of verbal resignations
  • Confirm and acknowledge the resignation in writing as soon as receive notice to avoid miscommunication, and avoid the employee continuing to accrue entitlements
  • Confirming the resignation end date will also ensure there is no confusion as to the end date when considering 21-day time limit for unfair dismissal claims
  • Avoid having a resigning employee continue to work as at this stage they have mentally checked out. If they have resigned during a hostile time, best to keep them away to avoid causing further trouble and leaks of confidential information.
  • If you wish to reduce the notice period of a resigning employee, ensure this is done by mutual agreement so that it does not turn into a termination

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Managing Principal - Victoria

Principal Lawyer and Head of Workplace