When 'intent to resign' becomes 'resignation'

Cases

When 'intent to resign' becomes 'resignation'

The Industrial Relations Commission of New South Wales has found that the repeated expression of the intention to leave a workplace and lack of protest on departure was in effect a resignation.

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The Industrial Relations Commission of New South Wales has found that the repeated expression of the intention to leave a workplace and lack of protest on departure was in effect a resignation. In Towers v Manning, [2001] NSWIRComm 108(22 May 2001), Harrison DP found that an employee's failure to question the advertisement of his position or the termination of his employment in anyway takes his action from 'intent to resign' to 'resignation'.

Background

The employee began employment at Chatham Fresh Bake in September 1999. Throughout the early part of 2000 the employee had repeatedly expressed his dissatisfaction with the work, stating he was going to quit, sell up and move on. Approximately two months prior to the employee's termination of employment, the employer requested he delay his resignation and departure until a replacement could be found. The employee agreed. Once a replacement employee became available the applicant was paid 1 week's pay in lieu and his employment terminated. On being told his employment was being terminated the former employee shook the employer's hand, thanked him for employment, and left the bakery.

The employee then lodged an application for unfair dismissal pursuant to section 84of the Industrial Relations Act 1996, claiming that he did not actually resign. He relied upon the dictionary definition of the term 'resignation', which he put was 'to give up' or 'go' to distinguish between his actions in the months prior to the termination of his employment. While conceding that he had expressed various dissatisfactions and had intended to leave, the applicant claimed that he had not given up or gone as the term 'resignation' means and that he did not actually provide any firm departure date or resignation in writing. As such it was argued that the termination was at the initiative of the employer without cause, and accordingly harsh, unjust and unreasonable. The applicant claimed that the payment of 1 week's pay in lieu and the advertisement of his position in the weeks prior to his termination supported his claim.

Conclusion

Based on the facts of the matter, Harrison DP found that the termination of employment by the employer could not be regarded as harsh, unjust or unreasonable as it had occurred in accordance with the former employee's wishes. In coming to this conclusion Harrison DP noted that the advertisement of the position prior to the date of the termination of employment was consistent with the evidence of the employee's expressed intentions of departure and the employer's request that he stay on until a replacement was found. The one week's pay in lieu was not considered a determinant in this matter, but rather an ex gratia payment by the respondent.

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