Test Your Knowledge

RESIGNATION V DISMISSAL – Cooling Down Period.

Q.   An employee going through a disciplinary process resigns.  Is that the end of the matter or is there some risk?

A. An employee may resign from their employment while going through a disciplinary investigation process.  The best practice for an employer is to acknowledge the notice of resignation, provide time for the employee to “cool down” and to reconsider their resignation, and make it clear the disciplinary process is not intended to instigate a resignation or to put them under pressure to do so.

Q.  But what if the matter is serious and dismissal is a likely outcome anyway?

A.  All disciplinary processes must be procedurally fair. Decisions cannot be predetermined and only after following a reasonable investigation can you make a finding.  If an employee offers their resignation before an investigation is completed then it is advisable for the employer to give the employee the opportunity to reconsider their resignation.  If the employer were to accept the employee’s resignation at this point they could potentially risk facing a claim of unjustified constructive dismissal as they could claim they were under unreasonable pressure or duress to resign during the process. However the employee needs to be aware that if they chose to withdraw their resignation, that the investigation will still continue. 

Q.  Does this mean I cannot dismiss an employee who resigned and subsequently withdrew their resignation?

A. No.  The disciplinary process has a purpose and the employer is obliged to complete this should the employee decide to stay. This process should be outlined in any letter offering for them to reconsider their resignation so that they are very clear on what to expect.  The offer for them to reconsider their resignation ensures you have not predetermined the outcome of the investigation.