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Can I take back my resignation

Can I take back my resignation 

Resignation is a unilateral act of termination by an employee and does not require an employer’s agreement. Unlike a dismissal, a resignation does not need to be justified and can be made for unreasonable or rash reasons. Sometimes resignations occur in stressful circumstances when emotions are running high, are these resignations still valid? This question was reconsidered in the recent case of Mikes Transport Warehouse Limited v Vermuelen.

The employee in this case was employed as a sales rep, but he struggled to make sales. One day his employer called the employee into a meeting to discuss his performance and in the early stages of the meeting he became upset and agitated. During the meeting he acknowledged that he was struggling and announced his resignation. After he announced his resignation, the parties then discussed another role that could be available in the company group.

Subsequently Mr Vermuelen argued that his resignation from Mikes Transport Warehouse was made in the heat of the moment and should not have been accepted by his employer. He argued that the employer’s failure to give him a “cooling off” period to consider his decision meant that he had been unjustifiably dismissed. In support of his claim Mr Vermuelen relied on previous caselaw which had established this “cooling off” principle.

In this case, Chief Judge Inglis decided not to follow the approach taken in the “cooling off” decisions. The Chief Judge held that questions regarding whether resignation was given in a moment of distress, or whether a fair and reasonable employer could have accepted such a resignation were not the correct questions to ask. Instead, she held that the key question is whether the employee resigned, which is a question that is determined objectively in the circumstances.

In the circumstances the Court concluded that Mr Vermuelen resigned from his employment. If the circumstances had been different, Mr Vermeulen’s resignation may have been a dismissal. For example, if his employer had told him in the meeting that he would be dismissed if he did not resign then this would have been a clear case of constructive dismissal. But on the facts, his resignation was clear and came at his initiative. As a result no dismissal had occurred.

 

If you have any questions or queries in relation to this topic, please get in touch with the Watermark team directly. We are happy to advise you.

Kylie Hudson

Associate

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