Withdrawing a Resignation

Sometimes an employee resigns from their job in the heat of the moment and almost immediately regrets the decision. In such cases, the employee might try to withdraw their resignation. In this situation, whether the resignation can be withdrawn will depend on whether the resignation was effective in terminating the employment relationship, and whether special circumstances exist that allow it to be withdrawn.

Doctrine of special circumstances

Resignation is an independent legal action, whereby an employee informs their employer that they are leaving their job. Typically a resignation precedes a period of notice during which the employee continues to work for their employer, giving them time to make arrangements. For a resignation to be valid, it must reflect the employee’s free choice to terminate their employment.

Generally, employees can only withdraw a valid resignation if they can secure their employer’s agreement. If the employer does not wish to resume the employment relationship, then the resignation stands, and the employment is at an end. However, there is an exception to this rule if the employee resigns ‘in temper or in the heat of the moment or under extreme pressure’. This is the doctrine of special circumstances. Because of this legal exception, when an employee resigns abruptly their employer is obligated to follow up with the employee about their resignation and clarify the employee’s true intentions. If the employer fails to follow these steps and refuses to resume the employment relationship upon the employee’s request, they are opening themselves up to an unfair dismissal claim.

How to withdraw a resignation

When an employee regrets their resignation, they should notify their employer as soon as possible. The employee should submit a written request to withdraw the resignation that clarifies their true intentions. They should then:

1. follow up with their own supervisor and the HR department about their request
2. continue to attend work and
3. wait for a formal response from their employer.

If the employer refuses the request, the employee can consider making an unfair dismissal application. In that case, the employee needs to act without delay, as they only have 21 days from the date of dismissal to apply to the Fair Work Commission. The date of dismissal will probably be the date when the employer confirmed that they were not allowing the employee to withdraw the resignation.

Case study

In the recent case of Dwayne Anthony Brunné v David Mansart[2024], the FWC found that a resignation was not legally effective because the employee was in a state of mental confusion or emotional stress at the time.

Mr Brunné alleged that he had been dismissed from the Ginger Jar Bakehouse in contravention of the General Protections provisions of the Fair Work Act 2009. Mr Brunné was employed as the manager on a full-time basis, responsible for managing the retail end of the Bakehouse, as well as preparing and serving food with assistance from casual employees (though he was often the only employee in that section of the bakery).

On 9 September 2023, Mr Brunné was the only employee working during a particularly busy Saturday at the bakery. Despite repeatedly asking for help from his employer, Mr Brunné did not feel that he was receiving adequate assistance. At this point, the applicant abruptly told his boss he was ‘sick of everything’ and was leaving. The next evening, Mr Brunné sent his employer a text saying, ‘Saturday was Saturday, tomorrow is a new day, see you in the morning’.

On the Monday, Mr Brunné attended work late and out of uniform and had a conversation with his employer regarding his employment. At this point the accounts diverge, with the applicant claiming that he informed his employer that he needed time off as sick or annual leave to ‘sort his head out’. He subsequently obtained a medical certificate establishing that he was not fit to work until 25 September 2023. The employer maintained that the applicant came to the workplace to resign and return his keys, an account supported by a fellow employee who allegedly overheard the conversation. The employer claimed that during this conversation he questioned the text message and Mr Brunné replied that he was ‘over it’ and quitting. In support of this version of events, Mr Mansart produced a text message exchange that the applicant had with a former employee of the Bakehouse, where Mr Brunné wrote ‘yeah finally got out. I walked out mid-morning last Saturday… I will let you know what I end up doing with myself, all kind of happened really fast that I didn’t plan my exit properly’.

Thereafter, Mr Brunné received an email stating he terminated his own employment by ‘self-action’ and that a week had been deducted from his annual leave entitlement because he had resigned without notice. The applicant claimed this was the first time he was aware that his employment was terminated. He subsequently made a FWC claim stating that he was dismissed because he utilised his protected right to take leave. His employer objected on the grounds that the applicant was not dismissed because he resigned his employment.

Despite the evidence that the applicant intended to resign, the suddenness of the resignation engaged the special circumstances provision. Under this provision, an employer must confirm or clarify after a reasonable time that the employee genuinely intended to resign. Otherwise, the termination of the employment is at the employer’s initiative. Deputy President Wright found that in this case the employee had not resigned, allowing Mr Brunné to pursue his complaint. 

At Go To Court Lawyers, our lawyers are experienced in unfair dismissal applications and employment law in general. Please get in touch with our friendly and helpful team on 1300 636 846 for any legal advice.