Withdrawal of resignation - not a unilateral decision

Cases

Withdrawal of resignation - not a unilateral decision

An employee may tender his or her resignation from a position without it being accepted by the other party. However, notice can only be withdrawn by the consent of both parties.

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An employee may tender his or her resignation from a position without it being accepted by the other party. However, notice can only be withdrawn by the consent of both parties.

In Delaroche-Souvestre and Public Transport Corporation (Print R1395, [1999] 107 IRCommA) about 24 October 1997 the PTC commenced an investigation of ticketing irregularities at Ormond station where the employee worked as a station officer. On 27 October the applicant tendered his resignation giving seven days' notice. The resignation was not accepted by the PTC. He was advised that he should attend a meeting on 29 October to assist the PTC's investigation. During the course of the conversation the employee claimed to have said 'does this mean that you will take me back if I can't start in a new job?' and that this constituted withdrawal of the resignation.

The employee did not attend the meeting as requested and on 30 October the employee's solicitor wrote to the PTC seeking confirmation of the resignation. The Australian Industrial Relations Commission took this move as indicative of the employee's intention that the resignation was still on foot. The PTC responded saying that the resignation was not accepted while the employee was off pay and refusing to attend duty in accordance with his conditions of employment.

Later, on 20 November the PTC wrote to the employee advising that his employment was terminated from 25 November.

The Commission found that the employee resigned and did not withdraw his resignation, or if so, withdrawal was not consented to. The Commission adopted the views of Gray J in Birrell v Australian National Airlines Commission [(1984) 9 IR 101] that giving notice consistent with a contract is a unilateral right and is not dependent on acceptance by the other party. Notice can be withdrawn by the consent of both parties, but notice cannot be unilaterally withdrawn (possibly except in the case where the giver of notice is in a highly emotional state and retracts when (s)he recovers from the emotional state).

The Commission found the employee's termination was effected by way of resignation effective 4 November. It was irrelevant that the PTC then subsequently wrote 'terminating' the applicant effective 25 November.

 

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