Emotional Resignation Effective

11 March 2010
Posted in General Employment

An employee who resigned in an emotional state was found not to have been dismissed from her employment and consequently barred from making an unfair dismissal application in a recent decision in Fair Work Australia.

In Pritchard v ISS Security Services Pty Limited [2010] FWA 1740, a security employee located at Brisbane Airport retained a bottle of perfume surrendered by a passenger contrary to security policies. The employee was initially interviewed by the employer, followed by the Federal Police, after which she sought to resign in an emotional and distressed state. After the employee calmed down, the employer asked if she would attend a disciplinary interview the following day, but she refused and left. Earlier that day, she had asked for one weeks’ annual leave, but approval was subject to her completing a form, which she failed to do.

A week later, the employee returned to work with a medical certificate and acted as though she had not resigned. She had a depressive illness, of which her employer was unaware until her return to work.

Fair Work Australia found that the employee had resigned and in the circumstances, her employer could accept her resignation. In this case, the employer had tried to discourage the employee from resigning and was unaware of her medical condition. The employee’s annual leave had not been properly approved and the employer had asked her to attend a disciplinary meeting the following day. Given these circumstances, it was the employee and not the employer who had a positive duty to clarify her employment status and the employer could accept her resignation.

Implications for employers

This case illustrates that when an employee resigns in an emotional or distressed state:

• The surrounding factual circumstances are key in determining whether an employer can accept the resignation.
• An employer may have a duty to review or clarify a person’s employment status after a resignation in an emotional state if the employee re-engages in a positive manner within a reasonable time or where the employer knows the employee had a medical or psychological condition.
• If an employer is unaware of an employee’s medical or psychological condition, or if an employer has made genuine attempts to persuade an emotional employee not to resign, it is less likely that an employer will have a duty to contact an employee and clarify their employment status.

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