Do you really need to give them more time to consider?
It’s not uncommon for upset employees to say they’re leaving when they’ve just received notice from their employer of a process that may impact their ongoing employment e.g. a restructure, a disciplinary investigation, or a performance management process.
Even if they have mentioned to their employer their plans to resign previously, it has still been a risky move to accept the resignation in that moment, let alone if the employee hasn’t previously given any indication that they were thinking about resigning.
The risk, in that circumstance, has been that the employee would then raise a personal grievance (PG), claiming it was constructive dismissal i.e. they felt their employer had given them no option other than to resign.
So, it has been prudent that if the employer thinks there is any risk of the employee having resigned in the heat of the moment that, as much as they may see a resignation as a solution to their current situation, they instead offer the employee additional time to consider whether they really do want to resign – even if that is just an additional 24 hours. We would also advise that if they later confirmed they do want to resign, the employer accepts the resignation in writing, to document the steps taken up until that decision was ultimately made.
Of course, after reconsidering their decision, they may also say that they don’t wish to resign, and the employer would then continue with the process they had originally initiated.
Interestingly, two recent decisions of the Employment Court may be indicating a turning of the times when it comes to requiring an employer to allow additional time or a cooling off period before considering an employee’s resignation.
In Mikes Transport Warehouse Limited and Vermuelen [Nov. 2021], Chief Judge Inglis noted the following, regarding “unsafe resignations”:
- She said “the Act does not legislate for how a resignation is to be communicated; it may be verbal, in writing, or in some circumstances, by conduct. A resignation will ideally comply with the contractual provisions regarding notice but may also be given on a “summary resignation” or “resignation without notice” basis, where an employee resigns on the spot”
- Unlike employers, who must be justified when making any decision to dismiss, an employee is not required to justify their decision to resign “nor does the decision need to be demonstrably sensible or well thought through.”
- “A dismissal may not have occurred where, for example, the employer’s words and/or actions taken in context were equivocal. The point is that the objective assessment of the key issue (has the employee been dismissed) would not be informed by consideration of whether the employee should have given the employer a “cooling off” period to confirm (or otherwise) the position.”
- “While there are obvious policy concerns which arise in cases involving pressured “resignations”, or those stemming from the employer’s misconduct or breach, those concerns are appropriately addressed via the developed caselaw relating to constructive dismissals.”
In the decision of this case, the Chief Judge said “An employer is entitled to have frank and robust conversations about performance with their staff.” She accepted that discussions in a meeting with the employee were “solely intending to provide support and sales advice to Mr Vermuelen. There was no threat (implied or otherwise) that Mr Vermuelen would be dismissed if he did not resign, there was no course of conduct with the deliberate or dominant purpose of securing his resignation, and there was no significant breach of duty.”
This case, and the four points noted by the Chief Judge, were then referenced in Urban Décor Ltd and Mingxia Yu and Yan Jin [March 2022].
Yu and Jin were curtain makers for Urban Décor Ltd. Following a disagreement involving Yu, Jin and their manager, both employees left the workplace, and their manager claimed they had both said that they were quitting. However, later, both Jin and Yu sent messages to their manager about the disagreement that had occurred.
The manager then sent both employees letters of dismissal, stating that their “employment is terminated effective immediately”.
The court considered “whether a reasonable employer, with knowledge of the surrounding circumstances, would have reasonably considered the employee to have resigned”.
It was found that while using the word “quit” shouldn’t automatically be considered a resignation, in this case the employees did intend to resign, when the context and the employee’s actions, such as leaving the workplace, were taken into account. The employees did not indicate that they wished to return to work when they did contact the manager.
The manager’s letters didn’t change the outcome, because resignation had already occurred, ahead of the letters being provided to the employees.
Going forward, our advice would be that employer’s still act with some caution when a resignation is potentially in the heat of the moment, due to the ability for a PG to be raised whenever an employee feels aggrieved. This is particularly so if it’s unclear why the employee is upset e.g. if it could be a potential health and safety matter that should be investigated. However, employees should also now be a bit more cautious when considering a hasty resignation. They need to ensure that if they in any way indicate they are leaving, and then physically leave the workplace themselves, they make contact with their employer without delay, to provide their reasons for leaving and clarify that they did not intend to resign. This is possibly an area we’ll see a few more cases through the Courts in future, examining the decisions of the two cases noted here, in a wider variety of circumstances.
If you have any questions about this topic, please do not hesitate to contact us.