Resignation prevents unfair dismissal claim

An employee who recently resigned from his position in the face of a request to improve performance, and subsequently sought to be re-employed has been prevented from bringing an unfair dismissal action.

The employee, an apprentice chef at a hotel, claimed that he was unfairly dismissed.

On 22 January 2004, the employee’s supervisor spoke privately to the employee, who had been working at the hotel from October 2003, about the need for improved performance. 

However, the employee claimed that at that time, it was clear from the manner in which his supervisor spoke to him that he had to resign or be sacked.

Later that same day, the employee generated a resignation letter in which he resigned from his position. The employer accepted this.  It was subsequently agreed that the employee would work through the notice period.

Two days later, the employee approached the employer, motivated by the intervention of his father and sought to retract his resignation. The employer did not accept this request.

The employee then made a claim for unfair dismissal.  It was argued on the employee’s behalf that it could be demonstrated that in all likelihood the employee was constructively dismissed from his employment.  That construction turned on the fact that despite the employer’s staffing levels being critical:

o  The supervisor did not seek to dissuade the employee when he sought to resign on 22 January 2004, even though the supervisor in giving evidence stated that he was not of the view that a resignation was warranted in the circumstances; and

o  Upon the employee's request to rescind the resignation on 24 January 2004, the employer did not wish to re-employ him.

The employer claimed that the Commission did not have jurisdiction to hear the matter because the employee had resigned his position voluntarily.

The Commission found that the employee put no clear evidence before the Commission as to the reason he was seeking to rescind his resignation, nor could it reach a conclusion or draw any inferences from the evidence that had been put before it that the employer sought the employee's resignation.

The Commission found that there was no obligation arising from the facts which would have required the employer to revisit two days later the decision by the employee to resign his employment.  The Commission further noted that an employee who resigns from his position in the face of a request to improve performance, and subsequently seeks to be re-employed, may not necessarily be deemed to have the requisite commitment to the employment challenges ahead.

The application for relief in relation to termination by the employee was therefore dismissed.

Carla Paratore,

Solicitor - 9288 6940

Michael Jensen,

Associate - 9288 6944





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