"I'm not coming back" -- is an employee's resignation valid?
The CCIQ employer assistance team has had an increase in inquires relating to resignations and what is a valid resignation.
Instances where a disagreement between an employer and employee have occurred resulting in resignation. When harsh words are said by both parties and the employee walks out yelling “I’m not coming back.” Is this a valid resignation?
This week’s article addresses what is a valid resignation on how you can best deal with an employee who wishes to resign.
Is the resignation valid?
Just because an employee resigns, it does not necessarily mean the resignation is valid. A valid resignation occurs when an employee provides their employer with formal written notice stating:
• the correct notice period, as specified in their employment contract or other relevant industrial instrument, such as a modern award; and
• the date they intend to be their last day.
If an employee does not comply with both of these requirements, you are well within your rights to reject their resignation or to seek clarification on the details of the resignation. You can inform the employee that they must comply with these legal requirements if they wish to resign.
What is not a valid resignation?
Sometimes an employee will indicate that they would like to leave your company or mention they are looking for another job. This is not a resignation. The employee has not specified the date they will be leaving and does not have a definite intention to leave their current employment.
If an employee walks out after a discussion on their performance or behaviour stating ‘I am out of here, I’m not coming back’ or ‘I quit’ this is also not a valid resignation. In these circumstances, it is best not to retaliate by replying with ‘don’t worry you’re fired anyway’ or ‘don’t bother coming back’ as this has implications relating to unfair dismissal.
What to do when an employee resigns?
When an employee resigns, take the following steps:
Step 1: Consider whether the notice of resignation is lawful
If the notice is not lawful, you don’t have to accept the resignation. Seek further clarification form the employee.
Step 2: Remind the employee of their obligations during the notice period
Remind the employee that until the close of business on the last day of their employment they remain subject to their usual duties, such as:
• faithfully serving your best interests;
• maintaining the confidence of your confidential information;
• respecting your intellectual property; and
• not doing anything that might lead to a conflict with any of these duties.
Confine the employee’s access to the office during the notice period (or block access completely if the employee is placed on gardening leave).
Direct the employee not to communicate anything about their resignation to your clients. Tell the employee that you will inform clients about the resignation using business appropriate approved communication.
NOTE: It may be in your best interests for the employee to cease working as soon as they hand in their resignation. Normally, you are able to simply pay the employee in lieu of notice period.
Step 3: Organise the return of property
Reach an understanding with the employee regarding the documents and other items they may take with them upon leaving, if any.
Recover all items from the employee that belong to your business, clients or suppliers, e.g. corporate credit cards, mobile phones, laptop computers, manuals, guidelines, precedents or client lists.
Step 4: Advise the employee how you will handle communications for them post-departure
If appropriate, tell the employee that you will reply to any emails received for a specified period after departure, e.g. 3 months.
Example: “[Name of employee] no longer works at [name of your business]. Please direct all enquiries to [contact] on [phone number] or at [email].”
Step 5: Advise the employee of their post-employment obligations
Remind the employee that even after their employment terminates, they remain subject to the following duties:
• to respect your intellectual property;
• to observe any contractual post-employment restraints, e.g. not to solicit other employees or customers; and
• not to disclose or misuse your confidential information.
Remember: The obligation not to disclose or misuse your confidential information exists in every employment relationship, even if it is not written in the contract of employment. The obligation continues after the period of employment has finished.
Can an employee withdraw their resignation?
If an employee gives notice of resignation in clear and unambiguous terms in accordance with their employment contract, they cannot withdraw the notice unless you agree. The only exception to this is if they have resigned 'in the heat of the moment'.
When an employee resigns in the heat of the moment, employers must not act hastily. Ensure you speak with the employee and have them tender a formal written resignation. There is a risk of unfair dismissal if an employer replies to an employee’s verbal resignation with ‘you’re fired anyway’.
Employers are encouraged to call CCIQ’s Employer Assistance Team on 1300 791 988 or email@example.com prior to taking actioning an employee resignation.
DISCLAIMER: This document is an information source only. Despite our best efforts, CCIQ makes no statements, representations or warranties about the accuracy or completeness of the information and disclaims responsibility for all liability for all loss or damage you might incur as a result of the information being inaccurate or incomplete in any way, and for any reason. The information contained in this document is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.