Resignation letter Issues
Resigning may seem like a straightforward process, but under the Fair Work Act, there are certain rules surrounding resignation. There are a variety of reasons why an employee might want to resign. Ideally, an employee will resign while still having a positive relationship with their employer but perhaps having found alternative employment. “Resignation letter issues” one of the most googled terms around workplace matters.
The situation becomes more complex when the employment relationship has broken down. (referred to as trust and confidence) In such circumstances, it is important that the resignation letter is effective and cannot be later used against the employee. It is also important that an employee is not forced to hand in a resignation letter by their employer. Additionally, that handing in a resignation letter does not interfere with any later claims against the employer.
This article will outline when and how to hand in your resignation letter. It will also explain how to ensure that your resignation letter does not interfere with potential unfair dismissal claims.
When Should Employees Provide Their Resignation Letter?
When an employee hands in a resignation letter, they are essentially providing notice to their employer that they are resigning after the notice period. There are specified notice periods which provide the time between handing in the resignation letter and ending employment. It is crucial that the employee checks their award or enterprise agreement for this. Employees should hand in their resignation letter when they want the notice period to commence.
If the employee does not have an award or enterprise agreement, their notice period is determined by their employment contract. If there is no employment contract, the employee must provide a ‘reasonable’ period of notice in their resignation letter. People can also resign immediately if their employer agrees to pay out the notice period.
Employees should note that if they do not give the minimum notice period, the employer can deduct money from their wages. Everybody should check their award, enterprise agreement or employment contract for the circumstances in which this can be done. However, it is also important for employees to stand their ground. Although they can question it, the employer cannot reject the resignation letter. Provided the notice period is correct, the employer must accept the resignation letter. (we don’t have slavery in this country).
What Should Employees Write in a Resignation Letter?
Writing a resignation letter can be intimidating. Luckily, there is no specific format that a resignation letter needs to take under law. However, writing a professional resignation letter is still important to maintain a positive relationship with your employer. It may also be important for your own records.
Some important things to include in your resignation letter include:
- The date
- The person who it is addressed to. Often this is someone from the HR Department.
- A brief statement that you intend to resign
- The role that you are resigning from
- The date that your notice period ends
- You may also wish to thank your employer for your employment if you are genuinely grateful.
The Fair Work Ombudsman website has a useful tool to generate a resignation letter for you. In some circumstances, an employer might also provide a resignation letter which an employee can sign. However, where a letter is prepared by an employer, the employee should read the letter carefully to ensure that their notice period is correct and the resignation letter otherwise reflects the manner in which they wish to resign.
Well constructed letter is important
If an employee had a poor relationship with their employer, it may be tempting to rant about the negative aspects of the workplace in the resignation letter, or to deliver the letter in a humorous or sarcastic manner such as a ‘sorry for your loss’ card. Employees should remember that if they want to take legal action against an ex-employer, for example, with a discrimination claim, an unprofessional resignation letter may reflect poorly on them.
In such claims, it is common for employers to counter-argue (whether true or not) that the employee was a poor performer. They may also argue the employee did not have positive relationships with other employees. An employee should not provide a letter of resignation that supports such arguments.
Forced Resignation
One issue is if an ex-employee wishes to an unfair dismissal claim against their employer by arguing they were forced to resign. The Fair Work Commission has set a high bar for what constitutes forced resignation. It must be the case that the employee had ‘no real choice’ but to resign.
The Fair Work Commission found in Bupa Aged Care Pty Ltd v Shahin Tavassoli that an employer should have clarified that employee’s hastily written letter of resignation, made in circumstances where she was distressed, really indicated an intent to resign. [1] Similarly, in Marks v Melbourne Health, the employee sent a letter of resignation while under treatment for mental illness. The Fair Work Commission stated that this should not have been relied upon as a valid letter of resignation.[2]
In these cases, the fact that the letter of resignation was sent while the employee was under pressure meant that the employer should have followed up the intent to resign. By contrast, if an employee writes a highly detailed resignation letter indicating it was written without pressure, the Fair Work Commission might see this as evidence that the employee had free, ‘real’ choice.
Similarly, if the resignation letter contains expressions of gratitude towards the employer, the Fair Work Commission might question whether the working environment was one which the employee was really forced to resign from. Therefore, if an employee feels as though they are being forced to resign, they should not provide a resignation letter which makes it appear that they were happy to resign.
Verbal Resignation
Further, in some cases, the Fair Work Commission has emphasized verbal intentions to resign rather than the written resignation letter. For example, in Ms Ludawan Prince v the Kingsbury Group Pty Ltd, the employee argued that she asked her employer how she would resign If she were to do so.
Following this, her employer provided her with a resignation letter that she could use and which was accepted The employee argued that she had no intention to actually resign on that day and was forced to do so when she was provided the resignation letter by her employer.[3]
Fair work notes
However, the Fair Work Commission noted that the employee had spoken to multiple other employees about her intention to resign. She had also called her husband for help with how to resign.[4] The Fair Work Commission found that given the verbal indications that the employee intended to resign, ‘the letter itself – and the signing of it – was not material to the resignation’.[5]
As this case demonstrates, employees’ actions outside of the resignation letter will be considered. A resignation letter is not the only evidence of an intent to resign. Therefore, if an employee wants to argue that they were forced to resign, they should not act in a way that indicates they freely resigned. It is not enough to rely on the fact that their employer encouraged them to resign by providing a resignation letter.
Should an Employee Provide a Resignation Letter?
It is common for employees to get a sense that they are about to be dismissed. For example, they may be becoming ostracized from other employees or be receiving poor performance reviews. Unfortunately, employees’ predictions are often correct. If the circumstances are unfair, the employee may want to lodge an unfair dismissal claim after being dismissed.
For a dismissal to be unfair, it must be ‘harsh, unjust or unreasonable’. This includes that there was not a valid reason for dismissal, the employee was not notified of the reason, or the employee was not given a chance to respond. In these situations, handing in a resignation letter before being dismissed may prevent the employee from being able to later lodge an unfair dismissal claim. This is because unfair dismissal laws only apply to employees who were dismissed, rather than employees who resigned.
As above, an exception to this is where the employee was forced to resign, but employees should note forced resignation has only been found in limited circumstances. Therefore, provided it is possible, it is recommended for employees to wait for the situation to unfold. Then, if they are dismissed, they can lodge an unfair dismissal application.
Employees should thus not be pressured to hand in a resignation letter or sign a resignation letter prepared by their employer against their will. In sum, a letter of resignation should not be provided unless the employee really wishes to resign.
Conclusion to Resignation letter Issues
I trust the article “Resignation letter issues” was helpful. Most people do not want to be out of a job. We all want to move on by a timing of our own choosing. Not because of some toxic workplace. Being forced to resign could happen to any of us, despite the fact we can do our job well.
We are A Whole New Approach P/l, the nations leading workplace advisors, we lead in advocacy, representation, workplace commentary. (we are not lawyers). All Fair work Commission matters, including unfair dismissals, workplace investigations. If your seeking advice, give us a call, its free, honest, prompt advice, call anytime 1800 333 666. We work in all states. Victoria, NSW, QLD, SA, WA, NT, TAS
