Can an employee withdraw their resignation?

The Industrial Relations Commission of New South Wales (IRC) has recently decided on a case where an employee decided to withdraw his resignation even after the employer accepted it.

The main question was whether the employee had the right to withdraw her resignation unilaterally or if it was too late due to the employer’s approval? The case offers HR a closer look that could be helpful in a similar situation.

The employee was a general administrative support officer at the Sydney City Police Area Command in the NSW Police Force. She wrote a resignation letter and gave it to the HR duty officer.

The employee detailed cited bullying and harassment as factors contributing to her resignation. A part of her letter reads:

“Not only is it unconscionable for me to work in such a hostile environment, it is also physically and mentally debilitating to work under such stressful circumstances.”

The officer then replied to her email and attached a “resignation form for completion” with an instruction that it should be returned upon filling out the necessary details.

After a brief exchange over email, the employee suddenly wanted to withdraw her resignation. A part of her correspondence with the duty officer states:

“I’ve been provided with advice that I am to retract my resignation. Based upon grounds I’m not thinking rationally due to stress…”

Can the employee unilaterally withdraw her resignation?

Upon review of the Commissioner of Police, the latter set out the accepted common law position, ruling that “notice of resignation, once given, cannot be unilaterally withdrawn, except where the notice is given in the ‘heat of the moment,’ and the withdrawal occurs immediately after the ‘heat dies down’.”

One of the employee’s arguments stated that she failed to return a signed form regarding her resignation. Thus, making the resignation “ineffective.”

She further said that her employer constructively dismissed her as “a consequence of being bullied and harassed by her manager” and the subsequent “requirement that she attend a medical assessment.”

What the common law says

According to the decision, the common law states that an employee could resign unilaterally but would be unable to withdraw it, except in “very limited” circumstances, like a resignation done in “the heat of the moment.”

As to the employee’s case, the IRC said that “there was no unfairness in the circumstances surrounding the [Police Commissioner’s] decision not to accept the withdrawal of the [employee’s] resignation.”

“Consistent with the common law, it provides that any member of the NSW Police Force may resign from their employment. It does not provide that the resignation must be accepted for it to be effective,” the IRC said.

“It proscribes the process by which a resignation is to occur: it must be by way of written notice to the [employer]. The [employee’s] resignation complied with the [employer’s policy], as it was in writing and delivered to the Human Resources Duty Officer.”

Can the common law rule be modified?

Yes, the common law can be modified or displaced by statute. “There are numerous examples where the legislature has seen fit to modify or displace the common law. However, this is usually done in plain and unambiguous terms. In this case, no such words exist,” the IRC said.

Thus, the IRC dismissed the employee’s claim that she was unfairly denied withdrawal of her resignation, noting that the employee’s actions were consistent with her resignation.

“[She] did not attend a scheduled medical appointment required by the [employer], she did not attend work and there was no evidence of any follow up to require this. Finally, [she] was provided with paperwork associated with her resignation, consistent with the understanding that she had resigned her employment,” the IRC said.

The decision was handed down on 5 April.