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25 Nov 2015
Ordinarily, an employee’s resignation can readily be accepted without risk of legal claims. However, there are certain situations in which organisations need to consider carefully how to deal with an employee’s resignation.
Warning bells should sound when a letter of resignation intimates some significant complaint in relation to working conditions or the behaviour of someone towards him/her, e.g. bullying. This potentially highlights the risk of a claim of constructive dismissal. A constructive dismissal takes place where an employee is dismissed, even though he/she has terminated their contract by resignation (with or without notice), in circumstances in which they are entitled to do so without notice because of their employer’s conduct including the conduct of the employer’s employees. Where such a resignation is received, an employer ought prudently to consider arranging a meeting with the employee and offering the company’s grievance procedure in an attempt to resolve the issues. In such circumstances, we recommend that specific legal advice is taken.
In certain circumstances, an express resignation may not be able to be relied upon by the employer. If the employer seeks to rely upon it, it can create scope for an unfair dismissal claim, be it a straight forward claim or a constructive dismissal claim.
One specific example could be when there is a heated altercation between a manager/ owner/supervisor and an employee, resulting in their resignation in the heat of the moment. Subsequently, the employee may seek to retract that resignation. If the employer refuses to retract that resignation, then it may be possible for the employee to argue that refusal to retract the resignation amounts to an unfair dismissal, reflecting the circumstances in which the resignation was delivered.
Case law suggests a reasonable cooling off period. If anything about the employee suggests that the employee’s intent was not to resign or it was a “heat of the moment” reaction, the employer should review the situation. Where an employee walks out after an argument, employers prudently would contact the employee and provide them with an opportunity to come back into the business and seek to resolve the issues. If, however, an employee is provided with the opportunity to reconsider their decision and declines to do so, and then seeks to retract the resignation at a significantly later date, it will probably be possible for the employer to rely upon the resignation.
If a letter of resignation raises some form of complaint against the employer, it would certainly be best practice to meet with the employee to try and address the situation.
Sometimes the question arises as to whether an employer can refuse to accept a letter of resignation. Legally, if an employee gives a valid notice of resignation, that resignation is effective and cannot be rejected by the employer or “withdrawn” by the person giving it, without the agreement of the other party (subject to the points made above about “heat of the moment” resignations).
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