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Is a verbal resignation OK, or should it be in writing?

Can you accept an employee's verbal notice or resignation?
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Is a verbal resignation OK, or should it be in writing?

Is a verbal resignation OK, or should it be in writing?

18 August 2020

Can we accept an employee's verbal notice or resignation, or should we insist it be in writing?
 
This question was recently sent to our Workplace Advice Line.

Q Our company operates in the financial services sector. An administrative employee who has been employed for nine months has given one week’s notice of termination to his manager. The notice has been given verbally although it has been requested it be provided in writing. This is in compliance with our company policy.

Does the company have to accept a resignation provided verbally or does failure to provide written notice of termination mean the worker’s employment has not actually been terminated?

A There is nothing to prevent an employer from accepting a verbal resignation, however you should request that it be in writing to avoid any misunderstanding. This may be difficult to obtain from an employee in some circumstances.

Where verbal notice is given by an employee at the workplace it may be prudent for the employer to have a witness to the resignation. This would verify an employee’s resignation and would also avoid any ‘heat of the moment’ decisions that an employee may later regret. See Commonwealth of Australia – re P.T. Wilson v Australian Tax Office, PR901127 [2001] AIRC 163.

An employer is likely to receive an employee’s resignation via mobile phone text or email. This is considered by the courts as written notice. (see below)


Heat of the moment resignation

If the words of a resignation are clear and unambiguous then an employer is entitled to treat them as such.

However, where a resignation is given in the heat of the moment or under extreme pressure, the Fair Work Commission refers to this as ‘special circumstances’. A reasonable period of time should be allowed to lapse. An employer may have a duty to confirm the intention to resign if, during that time, they are put on notice the resignation was not intended. Not making any further enquiries could be at the employer’s risk.

Ultimately evidence may be forthcoming which indicates that in the ‘special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively. In the context of an unfair dismissal matter such a resignation could be deemed a ‘constructive dismissal’. See Canh K Ngo v Link Printing Pty Ltd (1999) 94 IR 375.


Verbal notice by the employer

The Fair Work Act (s117) requires an employer to give an employee notice of termination in writing. Failure to do so is considered a breach of the Fair Work Act, however it may not necessarily mean a termination of employment has not been effected.

Generally, a termination of employment is considered not to take effect unless and until it is properly communicated to the other party. This could include notice being given verbally (although this would not satisfy the Fair Work Act).

The Acts Interpretation Act 1901 [Cth] (sections.28A & 29) provide how notice may be given. In particular, the notice may be given to an employee by:
  • delivering it personally
  • leaving it at the employee’s last known address, or
  • sending it by pre-paid post to the employee’s last known address.


Unfair dismissal

In the context of an unfair dismissal claim, a dismissal can be effected where the notice is given verbally to an employee. This means the Fair Work Commission can still hear the application as the dismissal has been effected, provided it was properly communicated to the employee. See Plaksa v Rail Corporation NSW [2007] AIRC 333.


Notice via phone text or email

The Fair Work Act (s117(1)) requires notice of termination by an employer to an employee to be in writing. A question for consideration is whether notice given via email or mobile phone texting is considered to be “written notice” for the purpose of the Fair Work Act.

The (then) Federal Magistrates Court determined that a text message advising an employee of dismissal is a form of writing that complies with the notice requirement under the Fair Work Act.

(Then) Fair Work Australia determined that notifying a shop assistant of her dismissal by text message was an inappropriate means of notification because it deprived the employee of an opportunity to respond, offer explanation or a defence on the issues raised and this denied her natural justice. It also implied a lack of courage to face the employee. See Sokolovic v Modestie Fashion Australia Pty Ltd [2011] FWA 3063.

In another matter before the same tribunal, it was determined that, in most situations, telephone or texting is not appropriate when terminating an employee’s employment. However, in this case, it was determined that had there been a face-to-face meeting, the outcome would have been the same.

The employee had been given a chance to respond to the allegations during a telephone conversation and the employer texted the dismissal because the employee was away on leave and about to go overseas. See Martin v DecoGlaze Pty Ltd [2011] FWA 6256.

The bottom line: Verbal notice of termination by an employee is legitimate provided it is properly communicated and unambiguous. Conversely, the employer is required by the Fair Work Act to provide written notice when terminating an employee’s employment.
 

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