Can they retract resignation?

[HeidiC]

Here is an interesting case I am working on at the moment, any advice would be gladly accepted:

I have an employee that was given a final written warning for sexual harassment (we had counselled him on this previously). He was obviously upset but stated he understood and accepted the warning (signing off the warning forms after our meeting of investigation). We told him he was on paid suspension until we could change the roster to accomodate the request by the female employee not to work along side him.

The following day he decided to take two days sick leave as he informed us he was very distressed and could not sleep (a medical certificate was issued to cover those two days). On the third day the employee submitted (via post) his resignation, effective immediately and informed us that we were only to contact him in writting as he would not accept any phone calls from us. Duely we accepted his decision for us not to contact him and processed his final payment. We sent him the acceptance of resignation letter along with his final pay details. 2 days later the now ex-employee wrote stating that he wishes to retract his resignation as he made the decision to resign while under duress (we never asked him to leave or threatened his position) and mental stress (the investigation was very diplomatic and calm).

To add to this; the ex-employee wrote emails to his colleages stating what a disgrace this process was and further farewells to select staff members prior to retracting his resignation (one email stated that he may have to apologise to this person but didn't know if he had offended her!).

We do not wish to reinstate this ex-employee due to his follow up behaviour to the final warning and am wondering if the ex-employee has the right to insist on reinstatement under his reasoning of mental stress at the time of resignation? I can imagine the uproar from our staff if we did this as he was not well liked.

[Mark D]

You've accepted his written resignation and he's been paid his entitlements. Sounds like you (and other staff) would not want him back, so you are under no obligation to reverse his resignation just because he's had second thoughts several days later. If he goes you for unfair dismissal using a constructive dismissal defence (ie. "I was pressured to resign"), if you have the history fully documented and the investigation was fairly and properly conducted, then you have nothing to worry about.

[kevinh]

Assuming the sexual harassment issue was irrefutable you should be okay. Otherwise I would get some legal advice from an employment law specialist. Just to be on the safe side!

Alternatively if you are in Victoria and a member VECCI they can probably give you some advice. I don't know if there are similar organisations in other States.

[lukohr]

Hi HeidiC

While seeing your case, based on that you have taken few steps.. which is really effective and professional. in between that particular employee requested sick leave and continued to that he has submitted his resignation letter. based on that resignation letter you have replied acceptance of resignation letter. till this its fine.

here we need to know
What he mentioned in his resignation letter (reason for resignation).
Did you receive any formal complaint letter from that female employee.

Based on his resignation letter, female employee complaint letter, warning letter (with his acceptance signature) and all other documents relates to this case (Sexual harassment) your steps is in correct direction.

As per my opinion you no need to worry about any thing.

Luko Hr

[kevinh]

Heidi,
Can you let us know how you get on with this. I'm sure a few of us are interested in learning from your experience.

Cheers,
Kevin

[HeidiC]

KevinH and Lukohr,

I do have a signed statement of complaint from the female employee (one of the first things I made sure we had!). The resignation letter does not state a reason for his resignation, just that he intended it to be effective immediately and we were to attend to all activities required to terminate his employment (along with the statement that all communication must be in writing as he would not accept any phone calls from us).

We issued a letter last week (responding to his retraction letter), reconfirming our acceptance of his resignation on the 30th and that we have no intention of reversing our decision. (All actions were taken that day to finalise his employment with us and he would have received his final payout the next day). I also asked him not to contact our employees in the workplace (as he had sent a few dissparaging emails to their work email addresses).

As it is the begining of a new week, I am waiting to see if he will respond to our letter.

I will keep you up to date with how this pans out and if it goes any further. Wish me luck!

Heidi

[Pete]

Heidi

In cases where someone has verbally resigned in the heat of the moment, then comes back the next day to apologise and retract, general rule is that we should allow retraction (for example the disciplinary process does not go well, the employee is disputing your finding and when told that they will be given a final warning states effectively that "you can shove your job" and storms out, but then reflects on this and wants to return).

In this case, as he has left the workplace quietly, had three days to think about it, taken the time to consider and to then write confirming his resignation, expressly instructed you not to ring him, written to other staff telling them that he is leaving, there can't really be any argument that this was any other than his considered and chosen response, and therefore should not be allowed to be retracted.

As with other people's advice above - if you ran a fair and full investigation and the final warning was the appropriate outcome, (especially if previous counselling on same issue has been recorded) then constructive dismissal should be easily defendable as you were actually doing your best to allow him to continue in the workplace, given the substantiated serious complaint against him.

Cheers

Pete

[Pete]

of course - if you did reinstate him you would need to investigate and respond formally to his behaviour after the meeting .........

[HeidiC]

Hi Pete,

Excellent advice. So far we have not had a response to our "reconfirmation of resignation acceptance" letter. I don't know if "no new is good news" or not at the moment. I do not believe we would reinstate the ex-employee in any case, as I believe it would reflect badly on management (we would loose our credibility completely as everyone knows what happened - thanks to his emails) and his behaviour towards a warning was evident that he is not the right person for our organisation. I think we made the right decision.

HeidiC

[tmsmith]

Hi HeidiC,
I've dealt with a very similar situation. When the employee tried to rescind his resignation about 3-4 days after submitting a carefully worded, detailed resignation, we responded with a letter stating that his resignation had been accepted, that the timeframe and manner in which it was submitted indicated that the decision was not rash or ill-considered, and for these reasons, we would not consider reinstating him. He sought legal advice and we received a letter from his solicitor, however, we reiterated our position and outlined the process leading up to his resignation, and never heard another thing! We were very confident that he could not have claimed duress, and our system was transparent and robust, so we were confident he didn't have anything on which to base a claim. Whilst all cases have to be looked at on their merits, your actions appear to be industrially and ethically sound. Fingers crossed for you.

[CHankins]

retractions of resignation are potentially valid when made in the heat of the moment or when the person is in some way incapacitated from making sound judgements. stress validated from his treating doctor would maybe suffice in this situation, unless you contend the doctors diagnosis or the person acts in a way contrary to the doctors diagnosis. The emails in this situation may, depending on their content be an avenue. Also factoring into this equation is whether the employee has been replaced or there is a position they could return to.

However even if constructive dismissal is granted that per se only entitles them to be classified as terminated. The most accessible and likely claim would be for unfair dismissal, where an employee can seek reinstatement or copmensation for loss of wages (not damages however). If the employee seeked reinstatement, given his pre and post employment behaviour, you would have a pretty strong claim that the working relationship was unfeasible. Provided there was procedural fairness, which you have indicated there was, given that he was on final warning, this would mitigate the claim for compensation significantly.

You have acted correctly in every way so far. The impact of reinstating such an employee would be more damaging to existing staff than the potential of a termination claim, which is pretty weak.

[Pete]

Hi Heidi

How has this progressed? All gone quiet or are you getting letters from a lawyer?

[HeidiC]

Hi Pete,

I am sorry that I haven't kept everyone up to date! :-)

We had a positive outcome in this case, where the only contact I had in regards to the reinstatement request was a call from Centrelink (Department of Welfare, for those outside of Australia) where I explained that he had resigned and wasn't terminated; but we had declined his reinstatement request due to his behaviour following the warning.

We haven't heard anything more. I have to say that we were quite lucky because if this had happened after the 1st of July, it could have been much more difficult!