Resignations not deemed dismissals


Resignations not deemed dismissals

Attempts by two employees to have their apparent resignations designated as dismissals have failed before the AIRC.


Get unlimited access to all of our content.

Attempts by two employees to have their apparent resignations designated as dismissals have failed before the AIRC.

Resignation over allegations by management

The AIRC found that an employee had effectively resigned when she objected to actions by a manager in allegedly suggesting she may have removed certain CDs from the café where she was working. The employee argued with the manager and told him she was resigning. The employee later argued that the manager's actions had provoked her reaction and she had not freely resigned.

Commissioner Foggo found that the evidence favoured the employer and declined to hear the application for unfair dismissal:

' I am unable to accept the submission for Ms Wilson that the fact that Mr Houghton ordered Ms Wilson off the premises, immediately and directed her not to return to the hotel in future, represents a termination of employment by Mr Houghton. ...

It is unfortunate that Ms Wilson acted as she did on 25 September 2004. She appeared in the giving of her evidence to be a confident and intelligent young woman who nevertheless was forthright in her views on the operation of the hotel and the management skills of Mr Houghton. Mr Houghton stated that she was a key member of staff in the cafe area.

All Ms Wilson's actions on 25 September 2004 point to a resignation from her employment. It appears on her evidence that she did not like a number of elements of her work at the hotel or Mr Houghton and the incident on 25 September 2004 regarding the music was the catalyst for Ms Wilson's resignation. ...

I do not accept that this was a situation where the actions of the employer left Ms Wilson with any option other than to resign her employment.'

Danielle Wilson v Rye Pub Pty Ltd trading as Rye Hotel - AIRC - Foggo C - 18/

Ultimatum sealed fate

The AIRC considered that tendering an ultimatum to management by the applicant was the final act in terminating his own employment. The letter (ultimatum) set-out a list of demands and the employee failed to present for work the next day. Taken in context the Commission considered the events amounted to a resignation.

Commissioner Larkin concluded:

'At approximately 9.00pm on that night he forwarded a text message to Mr. Siltchenko in which he stated, "You cannot expect me to work when I get given accusations about sales and stealing".

Sometime during the Friday night or early on Saturday 7 August 2004 he composed a letter to his employer setting out a list of demands. He delivered that letter to the hotel with his keys on Saturday 7 August 2004.

Mr. Herth did not attend for duty at the hotel on Saturday or Sunday. On Monday 9 August 2004 Mr. Herth lodged his application under s.170CE(1). I am satisfied that at no time did Mr. Herth attempt to speak to his employer regarding his future employment at the hotel.'

Shane Ashley Herth v Corum Investments Pty Ltd trading as Excelsior Hotel - AIRC - Larkin C - 18/


Ask an Expert - resignation

Withdrawal of resignation - not a unilateral decision

Resignation legitimate despite perceived employer pressure

When 'intent to resign' becomes 'resignation'

Post details