Last updated August 2022
This chapter explains how to determine whether your employee has legally resigned and how you should respond.
When has a lawful resignation occurred?
For a resignation to be lawful, an employee must advise you:
- of their decision to leave; and
- when they intend their last day to be.
The last day the employee works must comply with the employee’s obligation to give you a certain period of notice of resignation.
If a resignation is lawful, it will take effect even though the employer might not accept it.
Case Law: UWU v Bervar Pty Ltd (2022)
In UWU v Bervar Pty Ltd (2022), the Court had to determine whether an employee who had been the victim of racist bullying and harassment had resigned. After the employee had gone home upset, her human resources (HR) manager telephoned her home as part of a welfare check. The employee’s husband answered the phone.
He complained that the employee had been bullied and harassed.
The HR manager denied any knowledge of this and asked when the employee would be returning to work. The husband said twice that his wife would not be returning to work and that they would be making a claim to the Fair Work Commission (FWC).
The employer argued it could treat this exchange as resignation by the employee. The Court disagreed, ruling that a statement from the husband that the employee was never coming back would be entirely consistent with the behaviour one would expect of a husband or wife who had just learned that their partner had been subjected to workplace bullying. The Court ruled it did not amount to the employee resigning because only the employee could resign, and there was no evidence that her husband was authorised to terminate the employment contract on her behalf.
The HR manager’s assumption that the husband had that authority to resign was misplaced because he took no step to verify the existence of any authority. The employee was upset and it was reasonable to ask her husband to take the call. However, the authority given by the employee to her husband to take the call did not extend to giving notice of resignation.
The manager was an experienced HR professional who was calling to conduct a welfare check. In the course of that welfare check, he learned the employee was too upset to look after her children or speak on the phone, and that she had allegedly been subject to bullying and harassment. The manager should have checked about the employee’s intention to resign with the employee directly.
An employee’s resignation may be unlawful if the employee:
- has given you insufficient notice or more notice than required;
- previously agreed to serve a fixed term within your company;
- is forced to resign;
- is constructively dismissed; or
- abandons their employment.