Can an employee retract their notice of resignation without the employer's consent?

For instance, an employee resigns and gives their manager one month's notice after finding a new job. The employee then attempts to withdraw their resignation after the new job falls through. The employer prefers that the employee's resignation stand, as the employee has been counseled previously for poor performance.

Does the employee have an absolute right to withdraw their resignation?

 

Notice of resignation 

Notice, once given by an employee, cannot be withdrawn, except with the agreement of an employer. 

The requirement to give an appropriate period of notice is to allow an employer enough time to fill a position. If an employee could withdraw notice at any time it could leave a replacement employee without a job, as that person has resigned from a previous employer to accept the vacated position. 

The same logic applies when an employer wants to withdraw notice of termination to an employee. An employer cannot unilaterally withdraw notice of termination as an employee may have already obtained employment with another employer. 

If an employer could unilaterally withdraw notice, an employee could be bound by two concurrent contracts of employment. See Birrell v Australian National Airlines Commission [1984] FCA 378 9 IR 101 / 5 FCR 447 (7 December 1984) . 

An exception to this is where the mental state of an employee at the time of a resignation meant the giving of notice was not considered a voluntary act.  

 

The heat of the moment – unfair dismissal 

Employees have claimed unfair dismissal on the grounds an employer was unreasonable in not accepting the withdrawal of notice.

If the words of resignation are unambiguous, an employer is entitled to treat them as such. However, words may be said by an employee 'in the heat of the moment', which industrial tribunals refer to as ‘special circumstances’.

Where special circumstances arise it may be unreasonable for an employer to assume a resignation and accept it forthwith.  A reasonable period of time should be allowed to lapse; if circumstances arise during that period that suggests further enquiry is needed to determine if the resignation was really intended, then such inquiry is ignored at an employer’s risk.

An employer runs the risk that evidence may be forthcoming which indicates that in the ‘special circumstances’ the intention to resign was not the correct interpretation when the facts are viewed objectively. See Canh K Ngo v Link Printing Pty Ltd – 771/99 N Print R7005 [1999] AIRC 57; (22 January 1999). 

The bottom line: Neither an employee nor an employer can unilaterally withdraw notice of termination except with the agreement of the other party.