Is your resignation legally effective?

Posted on March 6th, 2018

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If you have resigned, in certain circumstances it is possible that you may have unfair dismissal remedies available to you.

A resignation is not legally effective if expressed “in the heat of the moment” or when an employee is in a state of emotional stress or mental confusion such that they could not reasonably be understood to be conveying a real intention to resign.

If an employer accepts a resignation made “in the heat of the moment” the resignation may be characterised as termination of employment at the initiative of the employer and could result in the employee having unfair dismissal rights, allowing the employee to be reinstated or compensated. If a resignation is made “in the heat of the moment”, the employer should clarify or confirm with the employee after a reasonable time that the employee genuinely intended to resign. 

Further, a resignation that is forced by conduct of the employer will also be considered a dismissal. In deciding whether an employer has forced a resignation, the Court will consider whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was the result of the employer’s conduct such that the employee had no effective or real choice but to resign. Again, in these circumstances, the employee may have unfair dismissal remedies available and may be able to seek an order for reinstatement or compensation.

Katie Thompson, Solicitor at Mullane & Lindsay Solicitors, NewcastleKatie Thompson is a Solicitor at Mullane & Lindsay Solicitors and practises in the Commercial dispute resolution and litigation teamIf you require any assistance in this area please contact Katie Thompson to arrange a consultation or contact our Newcastle or Sydney office. 

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