Being offered a new job can be very exciting causing an employee to take quick action by resigning from their current place of employment. At other times, resignation from employment can be brought about as the result of an angry interchange, causing an employee to say or do something rash.

In both instances it is possible that after the excitement subsides, or the emotions of a heated exchange cool, an employee might have second thoughts about leaving their current position. In the event of a change of heart an employee might be left asking to remain with their current employer. In this post, we look at the legalities of whether an employee can cancel their resignation.

A resignation can be given in two acceptable forms. Per the standards of the Industrial Relations of New South Wales Government, a resignation can be given either orally or in writing.  

Either form must show the following;

1) The employee is giving clear notice to the employer that they wish to terminate their employment

2) Notice is given with a proper amount of time before the employee intends to leave their position

In the instance that notice is given orally, it is best for the employee to follow up with a written statement that confirms their intentions. The written notice should clearly state that the employee will be leaving the employ of the employer and give their last date of employment. If the resignation is given in writing, it should include the same information. In both cases the employee should retain a copy of the statement for their records.

Under these circumstances, if the employee is clear in their oral and/or written statements, it is highly unlikely that they will be able to withdraw their resignation and force their employer to allow them to stay.

However, things sometimes go awry and if an employee finds that they need to request permission to remain employed with their current employer, they should take the following steps.

  • Ask to speak with their immediate supervisor privately
  • Be prepared to explain the reason why you are asking to stay on
  • Answer any questions the manager might have regarding why the decision was made to terminate their employment; finances, lack of challenging work, a desire to learn new things, a poor working situation with a co-worker or an uncomfortable working environment
  • Be honest and forthright about your future intentions with your current company
  • Apologize for the unintended change of circumstances

An employee who is willing to speak clearly and truthfully about the reason why they intended to leave their position might be able to improve upon their current situation with their employer. If the employer was hoping to not lose the employee, it is possible the employer will be willing to make some changes to enhance the employee’s current position creating an improved situation for everyone.

While an employer rarely has to accept an employee’s withdrawal of a clearly stated resignation, there are two exceptions that can change the outcome of the situation.

  1. The employee resigns in the “heat of the moment”
  2. The employer takes an action that forces the employee to resign

If an employee resigns in the heat of the moment, such as during an argument with the employer or a co-worker, it is possible to have legal grounds for reinstatement of employment. If the employee can show that they resigned during a heated exchange or were in a compromised state of mind, due to stress or confusion, the employer may be required to allow the employee to rescind their resignation. However, it is imperative that the employee be able to prove up at least one of the aforementioned intervening circumstances.

The second possible test for reinstatement after resigning, is if the employer acted in a manner that forced the employee to proffer their resignation. For example, if the employer;

  • Made offensive remarks
  • Acted in a discriminatory manner
  • Asked the employee to perform an illegal activity
  • Or any other such conduct that made it impossible for the employee to remain in the employ of the employer

Again, under this type of claim for reinstatement of employment, the employee must be able to show that the actions of the employer led directly to the event of their resignation. In either situation, the employee must remember that the closer in time the withdrawal is to the resignation date, the more likely a reinstatement is possible.

While it is always best to make a clean break from and old employer to a new employer, it is possible that events and circumstances can cause an employee to either have a change of heart, or be forced to request reinstatement. Under these circumstances, it is best to seek the advice of a professional who is familiar with the nuances of the rights of employees.

In the event that you find yourself in need of assistance regarding employment rights, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 780 770.