In a recent case[1], the FWC has shed some light on the law surrounding what can sometimes be the grey area of ‘constructive dismissal’. In the initial FWC decision, it was found that a Bupa aged care worker was constructively dismissed when she submitted her letter of resignation. Bupa appealed the decision and the Full Bench considered whether to treat her resignation as effective or whether it should be truly characterised as termination at the initiative of the employer.

In the lead up to the termination, the employee had been removed from a training session by her general manager and was later taken to a disciplinary meeting where she was informed that there would be an investigation into allegations of misconduct. The employee was required to wait 2 hours outside the meeting room, which she spent worrying about what the allegations were concerning. She assumed they were in relation to a six-pack of beer a resident had given her. Before entering the meeting, she drafted a resignation letter as she feared accusations of theft would be contrary to her cultural background.

During the meeting, she was told there were a series of secret recordings that allegedly showed her neglecting her duties, ignoring residents’ requests for assistance and laughing at the deaths of two patients. The employee was not shown the video footage that was the subject of the accusations and investigation following the advice of the HR department. The FWC likened the process to ‘entrapment’, stating that Bupa had an obligation to show the footage as they formed the basis of the allegations against her.

The employee was told that an investigation would proceed but was visibly upset and distressed and insisted on providing her resignation letter. When she attempted to rescind her resignation the following day, her general manager refused and stated that she was no longer an employee of Bupa.

In accepting her resignation, Bupa argued that the employee voluntarily intended to resign from her employment. Despite conflicting evidence, it was submitted that the employee was not so affected mentally or emotionally that she did not know what she was doing. Her signed letter of resignation represented an active, conscious and deliberate decision to end the employment relationship.

The employee rejected this argument and submitted that her actions were not of someone exercising ‘free will’ rather her resignation was a ‘heat of the moment’ event. The letter she provided was poorly drafted, was incorrectly dated and reflected that her English was limited. Further, she amended the letter by scribbling out the 4 weeks’ notice period.

The FWC carefully considered the events in the disciplinary meeting and decided that the resignation was ineffective and that she had been dismissed at the initiative of the employer. Regard was given to the employee’s lack of understanding as to the allegations against her and her poor English language skills. The general manager should have paid greater attention to the employee’s irrational behaviour and emotional state by not accepting her resignation in these circumstances.

Lessons for employers

• Policies and written employment contracts should state the requirement that resignations are provided in writing or email and that appropriate notice is given.
• Generally speaking, once an employee resigns, employers are not obliged to take them back if they withdraw their resignation unless there are ‘special circumstances’.
• Where resignations occur in the ‘heat of the moment’, allow for an appropriate time period to elapse before you decide that the resignation is accepted. Ask the employee to confirm their resignation in writing 2-3 days later.
• If possible ensure that a witness is present and take notes to record what occurred.
• Consider whether the employee should be offered the opportunity re-consider their resignation if it is made in the heat of the moment.
• When the employment relationship is ending, whether it be at the initiative of the employee or employer, ensure that the employee is afforded procedural fairness.