Pub­li­ca­tions

Resign­ing from your employ­ment — can you with­draw your res­ig­na­tion? — Lat­est developments

In recent times there has been a string of deci­sions from the Fair Work Com­mis­sion direct­ed to whether and in what cir­cum­stances, an employ­ee can assert that a res­ig­na­tion giv­en in the heat of the moment which is with­drawn, may not be relied upon by their employer. 

To those fol­low­ing the titan­ic strug­gle between BUPA Aged Care Aus­tralia Pty Lim­it­ed and its for­mer employ­ee Shahin Tavas­soli, it may not come as a com­plete sur­prise that there has been a fur­ther deci­sion from the Full Bench of the Fair Work Com­mis­sion. This was hand­ed down on 9 May 2018

The fact that there have now been 4 deci­sions from the Fair Work Com­mis­sion (2 from the Full Bench and 2 from indi­vid­ual Com­mis­sion­ers) with­out a final res­o­lu­tion, may seem like a lawyer’s pic­nic. How­ev­er the lit­i­ga­tion has result­ed in a detailed exam­i­na­tion of the pro­vi­sions of the Fair Work Act which are engaged in this area of the law.

In trac­ing devel­op­ments, it is con­ve­nient to incor­po­rate a large extract from my arti­cle Aus­tralia: Res­ig­na­tion from employ­ment — can you with­draw it”.

DECI­SION OF COM­MIS­SION­ER RIORDAN

The employ­ee, Ms Tavas­soli, was employed by BUPA’s Mos­man Aged Care Facil­i­ty as a nurse. She was a refugee from Iran with lim­it­ed Eng­lish lan­guage skills. She claimed to have been dis­missed from her employ­ment notwith­stand­ing that she resigned from her employ­ment on 16 Novem­ber 2016 by the pro­vi­sion of a writ­ten notice of res­ig­na­tion on that date.

On 16 Novem­ber Ms Tavas­soli was not ros­tered to work but attend­ed a train­ing ses­sion at the work­place in the after­noon. At approx­i­mate­ly 2.00 pm, a Mr Brice from the employ­er went to the train­ing room and asked Ms Tavas­soli to step aside. He walked her out of the build­ing and then informed her that quite seri­ous alle­ga­tions had been made against her and he was await­ing doc­u­men­ta­tion to come through before he could dis­cuss it with her. 

Mr Brice sug­gest­ed Ms Tavas­soli get a cof­fee and await fur­ther instruc­tion. In any event, some two hours passed before she was sum­moned to the meet­ing. Dur­ing that peri­od Ms Tavas­soli sat out­side the facil­i­ty with no idea why she had been escort­ed off the premis­es. She actu­al­ly had no mon­ey on her, so had nowhere to go. 

Whilst sit­ting out­side on the foot­path and deeply upset, Ms Tavas­soli came to the con­clu­sion that the alle­ga­tions against her involved a six pack of beer that had been offered to her by a res­i­dent. Ms Tavas­soli tes­ti­fied to the Com­mis­sion that she did not want to be accused of being a thief or ter­mi­nat­ed for steal­ing, due to her cul­tur­al back­ground. As a result, she asked for help from a col­league to draft her res­ig­na­tion letter.

When Ms Tavas­soli re-entered the facil­i­ty, she hand­ed Mr Brice her res­ig­na­tion let­ter which con­tained the pro­vi­sion of 4 weeks’ notice. Mr Brice did not accept the res­ig­na­tion at that time. Anoth­er employ­ee then read out let­ters from BUPA con­tain­ing alle­ga­tions of mis­con­duct (which had noth­ing to do with a six pack of beer) and advised her of her paid sus­pen­sion and the upcom­ing inves­ti­ga­tion of the alle­ga­tions. The alle­ga­tions them­selves con­cerned issues around Ms Tavassoli’s atti­tude to res­i­dents and res­i­dent care.

Mr Brice did not pro­vide Ms Tavas­soli with a copy of the cor­re­spon­dence which was read out at the meet­ing. Ms Tavas­soli did not ful­ly under­stand the cor­re­spon­dence, how­ev­er she did not want to par­tic­i­pate in the inves­ti­ga­tion and pressed her resignation.

Mr Brice told Ms Tavas­soli that unless the date of res­ig­na­tion was changed so it had imme­di­ate effect she would still be required to par­tic­i­pate in the inves­ti­ga­tion. In response to this, Ms Tavas­soli then scrib­bled out the ref­er­ence to 4 weeks’ notice and hand­ed her let­ter of res­ig­na­tion back to Mr Brice. 

On 17 Novem­ber 2016 Mr Brice sent Ms Tavas­soli a let­ter con­firm­ing accep­tance of her res­ig­na­tion. On 18 Novem­ber at 9:00 am Ms Tavas­soli attend­ed the facil­i­ty and tried to rescind her res­ig­na­tion but this request was refused. She then filed a claim for unfair dismissal. 

The mat­ter came before Com­mis­sion­er Rior­dan in July 2017. The main argu­ment advanced on behalf of Ms Tavas­soli was that she had resigned from her employ­ment but was forced to do so because of the con­duct of the respon­dent employ­er (and there­fore had in effect been dis­missed by her employ­er with­in the mean­ing of s. 386 (1) (b) of the Fair Work Act (Act)).

The respon­dent assert­ed that it had not con­duct­ed itself in a man­ner which had forced Ms Tavas­soli to resign. Fur­ther that once a res­ig­na­tion is giv­en, an employ­er is enti­tled to accept that resignation. 

Com­mis­sion­er Rior­dan hav­ing crit­i­cised the con­duct of the respon­dent and how it impact­ed on Ms Tavassoli’s state of mind which had tra­versed into the realm of con­fu­sion and self-con­dem­na­tion in an attempt to jus­ti­fy the actions of a long term employ­er”, con­clud­ed that Ms Tavas­soli had been con­struc­tive­ly dis­missed. He fur­ther found that Mr Brice should have accept­ed Ms Tavassoli’s attempt to rescind her resignation. 

He con­sid­ered that the peri­od of time for some­one in her state of mind, hav­ing regard to her poor Eng­lish skills and emo­tion­al state, was such that her deci­sion to seek to rescind her res­ig­na­tion occurred with­in a rea­son­able peri­od. He con­clud­ed that the respon­dent had act­ed in an unrea­son­able man­ner and that the dis­missal was harsh and unjust and ordered reinstatement.

DECI­SION 1 OF FULL BENCH OF FAIR WORK COMMISSION

BUPA applied for per­mis­sion to appeal Com­mis­sion­er Riordan’s deci­sion. The Full Bench grant­ed per­mis­sion to appeal on cer­tain of the applicant’s grounds. Hav­ing reviewed the author­i­ties, it then pro­ceed­ed to pro­vide guid­ance as to how the rel­e­vant sec­tions in the Act: s. 386 (1) (a) and 386 (1) (b) should be inter­pret­ed in the con­text of a res­ig­na­tion by an employee. 

S. 386 (1) (a) of the Act states that a per­son has been dis­missed” if their employ­ment has been ter­mi­nat­ed on the employer’s ini­tia­tive”. Even if the employ­ee resigns this may be a dis­missal on the employer’s ini­tia­tive if it hap­pens in the heat of the moment”. In the Full Bench’s words:-

47 (1) There may be a dis­missal with­in the first limb of the def­i­n­i­tion in s.386(1)(a) where, although the employ­ee has giv­en an osten­si­ble com­mu­ni­ca­tion of a res­ig­na­tion, the res­ig­na­tion is not legal­ly effec­tive because it was expressed in the heat of the moment” or when the employ­ee was in a state of emo­tion­al stress or men­tal con­fu­sion such that the employ­ee could not rea­son­ably be under­stood to be con­vey­ing a real inten­tion to resign. Although jostling” by the employ­er may con­tribute to the res­ig­na­tion being legal­ly inef­fec­tive, employ­er con­duct is not a nec­es­sary ele­ment. In this sit­u­a­tion if the employ­er sim­ply treats the osten­si­ble res­ig­na­tion as ter­mi­nat­ing the employ­ment rather than clar­i­fy­ing or con­firm­ing with the employ­ee after a rea­son­able time that the employ­ee gen­uine­ly intend­ed to resign, this may be char­ac­terised as a ter­mi­na­tion of the employ­ment at the ini­tia­tive of the employ­er.

The Full Bench then con­sid­ered s. 386 (1) (b) of the Act which states that a per­son has been dis­missed if the per­son has resigned from his/​her employ­ment but was forced to do so because of con­duct or a course of con­duct engaged in by his/​her employ­er. In this con­text, it con­sid­ered that whether or not an employ­ee will be found to have been dis­missed will depend upon the employer’s con­duct, and whether or not it engaged in con­duct with the inten­tion of bring­ing the employ­ment to an end or know­ing that it was the prob­a­ble result of its con­duct. In the Full Bench’s words:-

47 (2) A res­ig­na­tion that is forced” by con­duct or a course of con­duct on the part of the employ­er will be a dis­missal with­in the sec­ond limb of the def­i­n­i­tion in s.386(1)(b). The test to be applied here is whether the employ­er engaged in the con­duct with the inten­tion of bring­ing the employ­ment to an end or whether ter­mi­na­tion of the employ­ment was the prob­a­bly result of the employer’s con­duct such that the employ­ee had no effec­tive or real choice but to resign. Unlike the sit­u­a­tion in (1), the req­ui­site employ­er con­duct is the essen­tial ele­ment.

The Full Com­mis­sion then con­sid­ered the appeal in the con­text of the above tests. It con­clud­ed that Ms Tavas­soli could not suc­ceed in rela­tion to the test under s. 386 (1) (b) as it was not sat­is­fied that her for­mer employ­er had so con­duct­ed itself as to cause her to resign in the first place. The fact that Mr Brice had told her that she would have to resign imme­di­ate­ly in order to avoid an inves­ti­ga­tion, may have influ­enced her deci­sion to alter the notice peri­od. How­ev­er Mr Brice’s action was not the cause of Ms Tavassoli’s pri­or deci­sion to resign in the first place. The Com­mis­sion reit­er­at­ed that the fact that an employ­er rais­es alle­ga­tions of mis­con­duct against an employ­ee and gives notice of an inves­ti­ga­tion is not with­out more, forc­ing the employ­ee to resign. 

BUPA sub­mit­ted that Ms Tavas­soli had advanced her case on the basis she was dis­missed with­in the mean­ing of s. 386 (1) (b) and such a case could not suc­ceed either before the Com­mis­sion or now. 

The Com­mis­sion was sat­is­fied that Com­mis­sion­er Riordan’s deci­sion was appeal­able because he had applied the spe­cial cir­cum­stances” test (being a test applic­a­ble to a case advanced under s. 386 (1) (a)), to the case Ms Tavas­soli had advanced, which was a case for con­struc­tive ter­mi­na­tion under s. 386 (1) (b). Notwith­stand­ing this, his deci­sion did expose at least the pos­si­bil­i­ty that the Commission’s juris­dic­tion might have been suc­cess­ful­ly invoked under s. 386 (1) (a)”.

In the cir­cum­stances the Full Bench grant­ed per­mis­sion to appeal but referred the ques­tion of whether or not Ms Tavas­soli had been dis­missed with­in the mean­ing of s. 386 (1) (a) to Com­mis­sion­er Cam­bridge to decide. The rea­son for not decid­ing this ques­tion them­selves was that the Full Bench con­sid­ered that pro­ce­dur­al fair­ness demand­ed that BUPA be giv­en the oppor­tu­ni­ty of mount­ing an evi­den­tiary case which addressed a dif­fer­ent argu­ment being the argu­ment under s. 386 (1) (a).

In sum­ma­ry, the Full Bench con­sid­ered that Ms Tavas­soli had a claim with suf­fi­cient mer­it to be argued but which had not been ade­quate­ly argued at first instance.

DECI­SION OF COM­MIS­SION­ER CAMBRIDGE

Com­mis­sion­er Cam­bridge was essen­tial­ly tasked to deter­mine whether or not Ms Tavas­soli had been dis­missed at the ini­tia­tive of her employ­er. This involved an exam­i­na­tion of Ms Tavassoli’s state of mind and con­sid­er­a­tion of whether her res­ig­na­tion had been sub­mit­ted in the heat of the moment”.

BUPA assert­ed that the cir­cum­stances sur­round­ing the res­ig­na­tion did not amount to spe­cial cir­cum­stances”. That is to say the res­ig­na­tion was a con­scious and delib­er­ate act and the con­duct was unam­bigu­ous. Ms Tavassoli’s lev­el of Eng­lish skills and oth­er cul­tur­al or eth­nic­i­ty fac­tors did not estab­lish any spe­cial cir­cum­stances. In essence, the con­duct of Ms Tavas­soli was an active con­scious deci­sion demon­strat­ed by her per­sis­tence to resign when she resub­mit­ted a res­ig­na­tion let­ter after its ini­tial rejection.

Com­mis­sion­er Cam­bridge had this to say about a heat of the moment resignation:

41 One such cir­cum­stance is that of a heat of the moment” res­ig­na­tion where­by because of spe­cial cir­cum­stances and/​or a com­bi­na­tion of oth­er fac­tors, it was unrea­son­able for the employ­er to assume that the res­ig­na­tion was gen­uine­ly intend­ed. In these cir­cum­stances, if an employ­er accepts the res­ig­na­tion forth­with, and acts upon it, it may be held to have been a legal­ly inef­fec­tive res­ig­na­tion and the actions of accept­ing the res­ig­na­tion estab­lish that the employ­ment was ter­mi­nat­ed on the employee’s [sic] ini­tia­tive, and in sat­is­fac­tion of the terms of s. 386 (1) (a) of the Act.

Com­mis­sion­er Cam­bridge was of the view that Mr Brice had sig­nif­i­cant­ly mis­judged the men­tal state of the appli­cant and failed to recog­nise that she was act­ing irra­tional­ly or as a result of a dis­turbed mind. The amend­ed res­ig­na­tion was not giv­en freely, delib­er­ate­ly or as a result of any rea­soned delib­er­a­tion. The lev­el of con­fu­sion was reflect­ed by Ms Tavas­soli writ­ing the wrong day of the week on the res­ig­na­tion letter. 

When all of the cir­cum­stances of the 16 Novem­ber meet­ing were care­ful­ly exam­ined it was in Com­mis­sion­er Cambridge’s view, clear that Ms Tavas­soli was express­ing irra­tional behav­iour at the time. Her lev­el of emo­tion­al dis­tress was sim­ply not recog­nised. In those cir­cum­stances the res­ig­na­tion should not have been accept­ed, par­tic­u­lar­ly hav­ing regard to the applicant’s lack of Eng­lish skills and cer­tain eth­nic and cul­tur­al fac­tors which played a part. 

In those cir­cum­stances Com­mis­sion­er Cam­bridge con­clud­ed spe­cial cir­cum­stances exist­ed such that the res­ig­na­tion of the appli­cant was legal­ly inef­fec­tive. There­fore the employ­ment of the appli­cant was ter­mi­nat­ed on the employer’s ini­tia­tive and in sat­is­fac­tion of the mean­ing of dis­missed” under s. 386 (1) (a) of the Act. Com­mis­sion­er Cam­bridge then returned the file to the Full Bench to decide what orders should be made.

DECI­SION 2 OF FULL BENCH OF FAIR WORK COMMISSION

This Full Bench deci­sion which was a two to one deci­sion, con­cerned an appeal by BUPA against Com­mis­sion­er Cambridge’s find­ing that Ms Tavas­soli had been dis­missed on the employer’s ini­tia­tive with­in the mean­ing of dis­missed” pro­vid­ed by Sec­tion 386(1)(a) of the Act.

In his minor­i­ty deci­sion, Deputy Pres­i­dent Col­man chal­lenged some of the find­ings made by Com­mis­sion­er Cam­bridge con­cern­ing Ms Tavassoli’s state of mind. In the first place, it was not appar­ent to Col­man DP that Ms Tavassoli’s res­ig­na­tion was not giv­en freely. In par­tic­u­lar there was no con­tention that she had been forced to resign.

Sec­ond­ly he not­ed that there was no sug­ges­tion that Ms Tavas­soli was act­ing irra­tional­ly in any clin­i­cal sense” (and there­fore had no capac­i­ty to form an inten­tion to resign). If how­ev­er Ms Tavas­soli was act­ing irra­tional­ly in a non-clin­i­cal sense it was not clear to him how rel­e­vant this was to the ques­tion of whether she actu­al­ly intend­ed to resign. In his words:

At least arguably, it would appear to relate to a dif­fer­ent ques­tion, name­ly whether she was act­ing sen­si­bly or in her own best inter­ests. Sim­i­lar­ly, whether her res­ig­na­tion was a result of any rea­soned delib­er­a­tion’ appears to go to the ques­tion of whether Ms Tavas­soli made a good deci­sion, rather than whether she intend­ed to resign. But there is no statu­to­ry cool­ing off period’.”

Third­ly, Col­man DP not­ed that whether a res­ig­na­tion was ratio­nal or rea­soned is with­in the province of an individual’s per­son­al cir­cum­stances and pref­er­ences. Such assess­ment is high­ly sub­jec­tive. A deci­sion to resign rather than face an inves­ti­ga­tion may or may not be a good or sen­si­ble deci­sion. Cer­tain­ly an employ­er is not in a posi­tion to eval­u­ate this mat­ter. An objec­tive analy­sis of the sit­u­a­tion is required. 

Col­man DP con­clud­ed that Com­mis­sion­er Cam­bridge had not includ­ed any spe­cif­ic find­ing that Ms Tavas­soli did not intend to resign when con­sid­ered objec­tive­ly, nor was her coun­sel able to iden­ti­fy dur­ing the hear­ing where any such find­ing was made. 

Whilst a fair read­ing of the deci­sion as a whole might reflect such a find­ing, there was at least an arguable case that Com­mis­sion­er Cam­bridge had not made any such find­ing and instead had relied on sub­jec­tive con­sid­er­a­tions for con­clud­ing that Ms Tavassoli’s res­ig­na­tion was legal­ly inef­fec­tive. The Com­mis­sion­er con­sid­ered this con­sti­tut­ed an appeal­able error and grant­ed per­mis­sion to appeal.

The major­i­ty of the Full Bench (Catan­zari­ti VP and Bis­sett C) refused the appli­ca­tion for per­mis­sion to appeal Com­mis­sion­er Cambridge’s deci­sion. They were not sat­is­fied that there was any arguable case of error in rela­tion to any aspect of the decision. 

The Full Bench con­sid­ered that Com­mis­sion­er Cam­bridge had fol­lowed the ear­li­er Full Bench’s approach by tak­ing into account whether in the cir­cum­stances of the case, the res­ig­na­tion was pro­vid­ed in the heat of the moment or when the employ­ee was in a state of emo­tion­al stress or men­tal con­fu­sion such that the employ­ee could not be rea­son­ably under­stood to be con­vey­ing a real inten­tion to resign”.

The Full Bench not­ed that Com­mis­sion­er Cam­bridge had con­clud­ed that:

(52) The res­ig­na­tion of the [Respon­dent] should not have been accept­ed in these cir­cum­stances. Par­tic­u­lar­ly when one has regard for the [Respondent’s] lack of Eng­lish lan­guage skills and cer­tain eth­nic and cul­tur­al fac­tors, I am com­pelled to con­clude that spe­cial cir­cum­stances exist­ed such that the res­ig­na­tion of the [Respon­dent] was legal­ly inef­fec­tive (empha­sis added by the Full Commission).”

In essence, the major­i­ty of the Full Bench con­sid­ered that Com­mis­sion­er Cam­bridge had in effect made an objec­tive assess­ment of whether or not the Respon­dent had been con­vey­ing a real inten­tion to resign in accor­dance with the rel­e­vant cri­te­ria and had not fall­en into appeal­able error. 

Con­clu­sion

The most recent deci­sion of the Full Bench has result­ed in the mat­ter return­ing to a Full Bench until its fur­ther order. 

The ques­tion for the employ­er in res­ig­na­tions giv­en in the heat of the moment is to con­sid­er whether the employee’s emo­tion­al state or con­fu­sion is such that they can­not rea­son­ably be under­stood to be con­vey­ing a real inten­tion to resign. If in doubt employ­ers need to clar­i­fy the sit­u­a­tion with the employ­ee at a rea­son­able inter­val after the pur­port­ed res­ig­na­tion (such as the next day). 

The dis­sent­ing judg­ment of Col­man DP is inter­est­ing with its focus on whether there was capac­i­ty to resign and on the notion that a deci­sion might lack any rea­soned delib­er­a­tion, but nev­er­the­less still con­sti­tute a res­ig­na­tion made with the appro­pri­ate inten­tion to resign. 

How­ev­er it is clear from the Full Bench deci­sion, that sep­a­rate from any issue regard­ing the qual­i­ty of the deci­sion to resign, the key test is whether a real inten­tion to resign can be dis­cerned giv­en the con­text in which res­ig­na­tion took place and the appar­ent state of mind of the employee.