In the complex landscape of workplace relations, handling resignations given in the heat of the moment requires a nuanced approach. A recent decision by the Fair Work Commission (FWC), cited as C2024/2920, offers critical insights for employers. The case involved a clinical support nurse who resigned after being placed on a performance improvement plan (PIP), highlighting the importance of verifying an employee's genuine intent to resign under emotionally charged circumstances.

Case Background

The Employee began her role as a dementia clinical support nurse in September 2023, providing bedside education on managing dementia patients. Issues arose in March 2024 when she handled a family's complaint about a Consultant Geriatrician by noting it in the patient’s history without informing the Consultant directly, causing tensions.

Concerns about her performance escalated, leading to the initiation of a PIP on April 16, 2024. During an April 18 meeting to discuss the PIP, the Employee became agitated and verbally resigned, tearing up the PIP letter and stating, "No, No, No, No. I will not be performance managed again." She later reiterated her resignation via text and email.

Legal Considerations

Commissioner Williams addressed the legal framework surrounding "heat of the moment" resignations. According to s.386(1)(a) of the Fair Work Act, a dismissal can occur if a resignation is expressed under emotional stress or mental confusion, making it legally ineffective. If an employer treats such a resignation as final without clarifying the employee's genuine intention, it may be considered a termination initiated by the employer.

Conversely, s.386(1)(b) states that a resignation "forced" by employer conduct is also a dismissal. The test is whether the employer's conduct intended to end the employment or made resignation the probable outcome, leaving the employee with no real choice but to resign.

FWC Decision

The FWC found that the Employee was not dismissed within the meaning of the Fair Work Act. Commissioner Williams concluded, "If clear and unambiguous words are used to convey a resignation and these are understood by the employer, then the proper conclusion to draw is that the employee has resigned." The follow-up communication by the HR Business Partner, and the Employee's subsequent confirmation of her resignation, indicated it was voluntary.

Practical Advice for Employers

1. Document Performance Issues: Meticulously document performance issues and any steps taken to address them. This can serve as crucial evidence if disputes arise.
2. Clear and Calm Communication: Address performance concerns clearly and calmly, ensuring employees understand the implications of their actions and the organisation's expectations.
3. Support Persons: Allow employees to have a support person present during meetings related to performance management. This helps mitigate claims of unfair treatment or procedural unfairness.
4. Handle Heated Resignations with Care: Employers need to consider the facts and circumstances that give rise to an employee giving an oral resignation, whether in the heat of the moment or not. If an employee resigns in the heat of the moment, don’t accept the resignation at face value. Follow up to confirm their intention. Employers should take genuine steps to clarify an employee's intention to resign, ensuring the employee understands they have conveyed a willingness to end the employment relationship. A resignation from an employee should be clear and unambiguous and, as a matter of best practice, confirmed in writing clearly identifying the final date of employment.
5. Balance Fairness and Discipline: It’s essential to balance procedural fairness with the need to enforce workplace policies. Provide employees with a fair opportunity to improve performance while holding them accountable to organisational standards.

Conclusion

This FWC decision serves as a valuable reminder of the complexities in managing performance issues and the importance of fair and transparent processes. By documenting issues, communicating clearly, offering support, handling heated resignations with care, and balancing fairness and discipline, employers can navigate these challenging situations effectively.

For more detailed information, you can access the full decision here.

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