Rescinding Resignation

[qanda8]

I've a query around the following situation:

A senior female employee in our company resigned her position citing the unrealistic workload and excessive hours. She had numerous discussions with her manager prior to resigning. The Manager accepted the resignation and he commenced leave a day later, and we have started recruiting a replacement.

The employee has subsequently had second thoughts and would like to investigate the option of part-time work with the company or a job share? There have been no performance issues with the employee (iinfact she has been a strong performer), however the Manager does not want to reconsider her resignation. The employee earns above the 'unfair dismissal' threshold.
Does the panel think we would we be open to any recourse from the employee if we did not consider her request?

**Please note, there is no "panel", just individual contributors - HR Buzz Admin

[Qld IR Consultant]

Well first off she will go for Unfair Dismissal. They all do.... Secondly you just need to ensure that your process was sound. Were her concerns discussed appropriately, was there any steps taken to address the excessive workload and hours etc etc. You need to go through with a fine tooth comb to ensure that FWA criteria for Unfair Dismissal is addressed, then you should be able to defend the claim if or when it eventuates....But in depth answer cut short, no you don't have to reconsider it, just be prepared to defend it.

[qanda8]

THanks for your response. As you suggest I don't think the process has been very robust and the workload issue was adequately addressed at the time. This issue has only come to HR's attention since the resignation!

[Moz]

Originally Posted by Qld IR Consultant

Well first off she will go for Unfair Dismissal. They all do....

That's a pretty pessimistic view. Maybe you only hear about the ones that do

Nevertheless, given the person resigned after lengthy consideration, would it not be potentially an adverse action claim (constructive dismissal) rather than unfair dimissal ?

qanda8 - have you got any details on what was said in the meetings between the manager and the employee before she resigned?

[Qld IR Consultant]

unfortunately Moz yes I only hear about the ones that do. Joys of the job

I would think constructive dismissal went off the table once she had tendered her resignation. The fact that the employer has already accepted it and commenced recruitment to fill the role pretty much seals the decision. It would just be a case now of making sure you construct the unfair dismissal defence making sure you had a robust process....

[qanda8]

Moz, I tend to agree that it could be seen as constructive dismissal, as the workload had been an ongoing issue. It understand the employee's conversation with her manager was brief and occurred late in the evening. Her resignation letter stated she was resigning due to 'the excessive workload and lack of support'.

[ER-Enthusiast]

Originally Posted by Moz

That's a pretty pessimistic view. Maybe you only hear about the ones that do

Nevertheless, given the person resigned after lengthy consideration, would it not be potentially an adverse action claim (constructive dismissal) rather than unfair dimissal ?

qanda8 - have you got any details on what was said in the meetings between the manager and the employee before she resigned?

Moz I agree!! Adverse action could be it especially if she takes the option of 'carer's responsibilities' for being the reason for requesting part time

[SamC]

qanda8 & Qld IR Consultant,

I need advice in relation to retraction of resignation. Firstly, I have not claimed for or intend to claim for Unfair Dismissal. I was employed on a permanent part-time basis for a sports club. The Coaching Agreement I signed with the sports club had been breached numerous times by previous employer's Committee of Management. These breaches inlcuded failure to make payments of wages, removal of staff and maintenance of a motor vehicle. I submitted a letter stating the breaches and would resign if those breaches were not rectified. Committee of Management accepted my resignation letter. I was informed by a Committee Member to retract my resignation which I did as the then committee will be over-turned at the next AGM. Unfortunately this did not occur as some of the then Committee Members told a group of selected Life Membership and General Membership of untruths and had a secret campaign against the opposing Committee Nominees.

Do I have any hope of claiming breach of Coaching Agreement even though I resigned because I was coerced into resignation due to their misconduction, psychological stress and breach of implied mutual trust be former employer?

Thanks
Sam

Sam

[FWI]

Unless the resignation was forced upon an individual, and it was voluntarily done, and the correct period of notice is given, there is not much that can be done to 'force' and employer to reconsider the resignation. Where is this state that the employee was dismissed? Didn’t the employee resign due to a perception of unrealistic workloads and excess hours?

Unless there was an application for flexible working arrangements, and the employee resigned due to it not being agreed (which the employer can do if there is a reasonable business case), the employer it not obliged to reconsider the resignation in any part.

However, if there was room for the request for part time (which appear to have come post the resignation not prior) and she was a model employee and some discussion around reducing the issues, then why not reconsider.

As it has been put (and i know there’s more than one side to the story) there is no adverse action claim in this matter nor an unfair dismissal, as she was not dismissed, which clearly needs to occur and be proven for it even to be considered to be heard by FWA.

[ER-Enthusiast]

I'll just put it out there, I have had a case go to hearing for unfair dismissal that was a resignation. The employee resigned, definately was not forced, and was still heard. Just thought you may find that interesting, otherwise I agree FWI

[SamC]

ER-Enthusiast & FWI,

I thank you for your replies. Firstly, the hours of employment were flexiable with training/coaching conducted 3 nights per week during the pre-season and 2 nights per week plus game day during the season. Secondly, the resignation occurred at the end of the football season in 2009 after the final breach had occurred by then employer. At time of resignation, employer had lied about monies paid for reimbursements for expenses and withheld wages to the point I was in-debt. The workplace did cause me physical distress due to having no available motor vehicle as I had to walk long distances (6km each way) to do food shopping as there was no public transport. The resignation relieved an excessive amount of psychological stress. My former employer was happy to see me 'jump ship' with no offer of making salary payments they had withheld.

There are other matters to many to list. It appears that in my situation, an employer can make numerous breaches to an agreed contract cause me ill-health then have no recourse when I chose to resign.

[HRK]

HI All,

This is a long one, so forgive me! I need some advice please...an employee submitted a resignation in June, citing personal reasons (his partner had been sick in hospital and he was preparing to move to another state). A month later, the same employee requested an extension of the resignation date which was agreed to by his manager and HR (new date was Oct).

Recently, the same employee has asked to rescind his resignation and stay on. The manager has declined and stated the extended date of Oct should stand. The employee has been with the company for almost 6 years and with the exception of an almost 6 month period prior to submitting the initial resignation, there have been no performance issues.

I have had recent contact with this employee who has stated that the performance issues were never formally addressed - no written warnings, no performance management, etc.

His story re the 6 month period of performance issues is:
*he was promoted into the role in which he is resigning from, but was given no training, no handover and little support from his manager
*during that time, the company was going through it's third process restructure in as many years and two divisions were forced to merge
*during that time, his mother was diagnosed with cancer
*he also experienced health issues
*during the discussion with his manager where he was told she would not allow him to rescind, the manager stated that he had improved by 80 or 90%, but that there were still some 'trust' issues with regard to his fellow managers and whether or not they believed he had changed/improved. In the same conversation, he was also told that his manager hadn't solicited any feedback from his colleagues and was only going on what had been told to her 'unsolicited'


The manager's story re the 6 month period of performance issues is:
*this employee was frequently late or didn't show up for work at all (although he did make contact and was able to provide medical certificates for some absences)
*at some point, the employee "checked out" mentally and while they showed up and did work, they weren't engaged and/or not "mentally" present for the team they managed (approx 12 people)
*several staff meetings were missed
*the lateness/absences were addressed verbally, but nothing was ever formalised in writing
*the employee had an unplanned absence of two weeks when his partner was hospitalised and while he was in touch with the manager and provided somewhat regular updates, the manager felt he left his team (and the business) in the lurch and several things fell down during his absence
*the manager feels that if the employee had not submitted his resignation when he did, he would have received a formal written warning and perhaps would have been performance managed

A note about the resignation extension: this was done officially through HR with the understanding that the manager would conduct a review of the employees performance after a 4-6 week period. This never happened and to date, the employee states he never received any feedback (positive or negative) from his manager since the initial extension discussion. He states he requested this several times and was always put off by the manager.

The employee now feels that he should be able to rescind his resignation and that his manager's denial of that request is a "thinly veiled dismissal" and that if there are performance issues, they should be addressed via the performance management process.

My questions (after all of that!) are:

1. Based on the fact that very little of the performance issues were documented and/or formally addressed, is the manager required to continue employment and if not, does any of this leave us open to unfair dismissal? (I'm concerned this manager has not been as diligent as she should have been, especially regarding the extended due date and the review that wasn't completed).

2. Are we better off to continue employment and performance manage the employee out of the business? (this would obviously take longer, but given the employee doesn't finish until Oct, we could be talking about a similar exit timeline)

Any feedback/suggestions would be most welcome!

Thanks all,
HRK

[Qld IR Consultant]

Well the issue you put forward is in terms of lack of documented process and lack of understanding on how to performance manage is prevalent amongst employes so don't beat yourself up over it too much. FWA does look in detail at how robust the process was before the dismissal so to cut a long answer short go for option 2, it will save you time and possibly money in the future.

[Qld IR Consultant]

Originally Posted by SamC

qanda8 & Qld IR Consultant,

I need advice in relation to retraction of resignation. Firstly, I have not claimed for or intend to claim for Unfair Dismissal. I was employed on a permanent part-time basis for a sports club. The Coaching Agreement I signed with the sports club had been breached numerous times by previous employer's Committee of Management. These breaches inlcuded failure to make payments of wages, removal of staff and maintenance of a motor vehicle. I submitted a letter stating the breaches and would resign if those breaches were not rectified. Committee of Management accepted my resignation letter. I was informed by a Committee Member to retract my resignation which I did as the then committee will be over-turned at the next AGM. Unfortunately this did not occur as some of the then Committee Members told a group of selected Life Membership and General Membership of untruths and had a secret campaign against the opposing Committee Nominees.

Do I have any hope of claiming breach of Coaching Agreement even though I resigned because I was coerced into resignation due to their misconduction, psychological stress and breach of implied mutual trust be former employer?

Thanks
Sam

Sam

Sam, without knowing all the details I would say from the info you have provided yes you could make a claim through FWA.