When an employee you don’t value highly suddenly resigns after an incident at work, or when obviously under stress, it may be tempting to willingly accept it without asking questions – or without asking the employee whether they're sure about it. But if the employee later changes their mind, it can cause problems if the employer insists the resignation stands. This case illustrates how things can go wrong.

Facts of case

The employee had suffered an allergic reaction from eating cake icing at work. She had notified her food allergies before starting employment and was assured they would be accommodated at her work site.  

Her reaction to the cake icing required medical treatment. She claimed that food labelling at the workplace was inadequate. She was a fly-in fly-out employee, and two days after returning home from a shift she sent her resignation in an email. It also complained about safety risks at the workplace (a gold mine).

When she received no response, she visited the employer’s head office in Perth to try to raise her concerns about on-site food safety. A further two days later, she sent an email retracting her resignation, but the employer’s response was to confirm it had accepted it, to be effective the same day.

Given the above timeline (five days), the Fair Work Commission (FWC) found that the resignation was clear and unambiguous and not made “in the heat of the moment”. However, it had been made while the employee was under considerable stress.

For several weeks, she had found it difficult to find sufficient food she could eat (which she claimed was due to inadequate labelling by the employer), and the reaction to the icing added to that stress level, which was backed up by medical certificates describing her mental state.

The employee claimed she was dismissed, but the employer objected on the jurisdictional ground that she had clearly resigned.

The FWC had to determine whether her level of stress was such that she had no real intention of resigning. If she had not expected the employer to accept her resignation, then submitting it was more of a “cry for help” than a genuine intention. The three-day gap between eating the icing and “resigning” was a crucial factor to consider.

Decision

The FWC found that the employer’s action of accepting her resignation without questioning it amounted to dismissing her, given the events that followed the initial resignation email.

The FWC described the employer’s action as “bureaucratic intransigence”, and said it should have made further enquiries about her real intentions. The employer knew about her allergies and the icing incident and should have realised she was under considerable stress at the time.

Visiting the head office to seek improvements to food safety, and then attempting to retract her resignation was evidence that she did not absolutely intend to resign.

The FWC rejected the employer’s objection and listed the matter for conference.

What this means for employers

If an employee suddenly resigns after an incident at work, and/or when they appear to be highly emotional or under a great deal of stress, it is risky to accept the resignation without question. Ask “are you absolutely sure that’s what you want to do”, and perhaps wait until the employee appears to have calmed down, then attempt to discuss and clarify the matter further. Also, consider providing an opportunity to withdraw the resignation.

If you eagerly accept it and refuse to back down when the employee later changes their mind, the employee may be able to claim that dismissal occurred.

Read the judgment

Bethan St John Rutter v Anglogold Ashanti Australia Limited [2023] FWC 1891 (31 July 2023)