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You can read the full decision here.
When an employee resigns it is best practice to accept the resignation in writing. Despite the following decision, a resignation once given and accepted cannot be unilaterally rescinded.
The employee in question had worked as a security officer for the company since December 2012. The employee decided that he no longer wished to be a full security officer with the company but designated a casual as required.
The employee tended his resignation in writing, providing the required notice period.
When not offered casual employment, he made application for an unfair dismissal.
Was the Applicant dismissed?
The Deputy President, presiding in this matter considered the Mohazab case:
“The issue of dismissed at the initiative of the employer was considered by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab). The Full Court stated in its decision that:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because `he felt he had no other option’. His Honour described those circumstances as:
“… a termination of employment at the instance [of] the employer rather than of the employee.”
And at p 5:
“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.”” (Emphasis added)
Not impressed with the manager’s lack of action
The Deputy President was far from impressed with the company’s manager, which the DP observed to be
“[at] times inconsistent, those inconsistencies were not in my view so significant as to make his overall evidence unreliable. If anything, his evidence reflected a somewhat lackadaisical approach on his part in effecting the Applicant’s resignation. In particular I found it surprising that [the manager] appeared not to have mentioned the Applicant’s resignation to anyone in the Security Department until his meeting on 26 August 2019. Further, in circumstances where [the manager’s] evidence was that he said to the Applicant on 1 August 2019 that he could not guarantee him any casual position, he may not need his services and that his services may not be required, I consider it poor management practice that he subsequently did not have the courtesy to contact the Applicant to let him know that he would not be engaged as a casual employee. Similarly, [the manager’s] failure to respond to the Applicant’s email of 28 August 2019…with greater urgency does not, on its face, reflect well on him. Conversely, the Applicant’s failure to pick up the phone and talk to [the company representatives] following the latter’s email of 28 August 2019 and his stated reason for not doing so (i.e. he wanted things in writing) beggars belief in the circumstances. Further, the Applicant’s failure to take steps to retract his resignation in the light of [the company representative’s] email of 28 August 2019 is inconsistent with his submissions. Ultimately, however none of these observations go to the issue of whether the Applicant was dismissed at the Respondent’s initiative”. [My emphasis].
The DP: found that the applicant turned up to a meeting with his manager with a pre-prepared letter, which did not reflect that the resignation was based on his being instead being employed as a casual.
Whilst the applicant did do some casual shifts following his resignation, these shifts were ceased when it was realised by the company that the applicant had not been offered casual employment.
The application for unfair dismissal was dismissed as the:
“Applicant’s employment was not terminated on the [the company’s] initiative but rather ended as a result of his voluntary and self-initiated resignation”.