Second thoughts

What happens when your employee wants to retract their resignation?

We all know that people can sometimes say things in the heat of the moment which, on reflection, they didn’t really mean. What happens when your employee quits suddenly, perhaps by storming out of your workplace as a result of a disagreement? As an employer, can you take this as a resignation? What happens if your employee has a change of heart and wants to return to work?

Most employment agreements will provide a notice period that any employee must give when they want to end their employment. This allows you some time to find a replacement and make arrangements for the handover of work.

Sometimes, however, your employee may quit without giving any notice. This often happens after a disagreement or argument between an employer and employee, when you may be looking to investigate your employee’s performance or conduct, or perhaps a stressed employee reaches ‘breaking point’ and decides they can’t work another day in the role.

Sometimes your employee’s words and intentions are clear. For example, they may actually say, “I quit” or words to that effect. Sometimes, however, the situation is not so clear. What if your employee says, “I can’t take this anymore, I’m leaving” and walks out part-way through the working day? Is that a resignation?

What is their real intention?

For an employee to resign, they must unequivocally convey an intention to end their employment. Being absent from work briefly without explanation, or walking away to cool off, will generally not amount to a resignation. If there is any doubt as to the intention conveyed, you should be cautious before acting on an apparent resignation.

In the situation where they walk out halfway through the day, they may have intended to simply take the rest of the day off (rightly or wrongly) and return to work the next day. The easiest way to remove any doubt is to ask them. That is not always immediately possible, of course. But you should follow up with your employee at an appropriate time, which will often be after they have had some time to calm down.

Cooling-off

What happens if your employee cools off and wants to retract their ‘resignation’ and return to work? Can they do that?

The starting point is that if your employee has resigned, they cannot retract the resignation unless you agree. Employment law, however, acknowledges that often even very clear resignations are given in haste and are not truly intended by your employee. Such resignations are often given in stressful and high-tension situations such as those we’ve mentioned. Because of this, employees are entitled to a brief ‘cooling-off’ period. This allows them time and space to think about what they really want to do. In those situations, you would be obliged to allow your employee to return to work if they changed their mind within a short period. If you don’t accept your employee returning to work, your employee could have grounds to raise a personal grievance for unjustified dismissal.

Employees changing their minds

Employees who wish to change their minds following a stomping-off style resignation should not dally. If they did not intend to resign in the first place, but it becomes apparent their employer is treating their words or actions as a resignation, then they should also immediately let their employer know. Not acting promptly could mean it is too late to return to work.

How long can an employee have for cooling off? That will depend on the particular circumstances, but at least 24 hours should be allowed. If their ‘resignation’ occurs on a Friday, in most cases your employee should be allowed to return on the following Monday.

Our tips

If you have stormed off, or employ someone who has done this, then we suggest that:

  • Consider what was said. Was it definitely a resignation, or something less?
  • After an appropriate cooling-off period, if your employee has not made contact you should attempt to be in touch with them to check on their intentions. Your employee should notify you as soon as they think they may wish to return, and
  • If you cannot reach your employee after the cooling-off period, write to them recording their resignation and details of the end of their employment.

If you are faced with a change of heart, whether your own or from one of your employees, and you are unsure how to proceed, we have experts who can help.

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