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Employers should not accept heated resignation

Date: 20/12/2017

Frustrations can run high in the lead up to Christmas. It is a time when many people are just “over it”, and this can result in some out of character behaviour. In the employment context it is not unheard of for employees, in a fit of pique, to scream “I quit”, or something more colourful, and walk off the job.

This becomes difficult where the employer accepts this as a resignation, but the employee returns having calmed down, wanting their job back.

A recent case in the Employment Relations Authority illustrates the trouble that employers can run into if they accept a resignation from someone who may not have been thinking clearly at the time, and then refuse to let them withdraw it.

The University of Waikato was found to have unjustifiably dismissed Eric Messick, a psychology supervisor, after they made the decision to accept an email from him as his resignation. Messick had been suffering from depression, and while he had been provided with support through the employee assistance programme (EAP), his request for further sessions was refused.

Things came to a head when the University attempted to undertake a disciplinary process in relation to the way Messick had managed a class.  Despite Messick refusing to engage in the process, he was issued with a final written warning. In response, Messick raised a number of issues that he had with his employment agreement, and the way he had been treated.

After an unsuccessful meeting with his managers, Messick then sent an email stating that “I’d like to finish my employment at the University of Waikato with a big Fuck You”. Either dismiss me by the end of today or I will come to the University tomorrow and destroy something that you have to [sic].”

The University of Waikato responded an hour later advising Messick that they were accepting his email as his intention to resign, with immediate effect and without notice.

The Authority held that the University of Waikato was “opportunistic”, and that they had “a good faith obligation to be active and constructive in maintaining the employment relationship”.

This case demonstrates that an employer should be careful about accepting an emotional or impromptu resignation. The Authority said that in Messick’s case, the University should have at least allowed him a 24-hour period of reflection. Also, given that the University was aware of his emotional state, it would have been prudent to propose a meeting to discuss the situation.

The irony in this case is that it is likely that the employer could have justifiably dismissed Messick for serious misconduct given his outburst.

In another case, involving Mica Developments Limited, the Employment Relations Authority held that an employee was unjustifiably dismissed after he called the company director and made statements to the effect that he was resigning. The following day the employee called to say he had reconsidered his resignation, and decided that instead he would be taking sick leave due to stress. He then resigned two weeks later.

The employer refused to pay the employee the two weeks sick leave on the basis that it had accepted the previous resignation. However, the Employment Relations Authority found that the company could not accept the earlier resignation because it was given in the heat of the moment.

In its decision the Authority provided helpful guidance on the rights and obligations of the parties in these cases.

The starting point is that an unequivocal resignation cannot be withdrawn without the consent of an employer. But if a resignation is given during a heated discussion, an employer should act with caution and allow a ‘cooling off’ period before taking reasonable steps to ensure the resignation is genuine.

So employees who momentarily lose the plot and tell their employer to shove it, may be entitled to a second chance. Word of caution though, it would not pay to play Russian roulette in this way because it is equally possible that the resignation may stick. This will all come down to how the Authority sees it on the day.