Can an employer refuse your resignation?

An effective resignation is a termination of the employment contract. In what circumstances can an employee’s resignation be refused by the employer so that the termination does not take effect? What happens if you don’t give enough notice?

For a termination of the contract by either party to be effective, whether that be by resignation, summary dismissal or genuine redundancy, it must occur in accordance with the clauses of your written employment contract about termination of employment (often called the termination clause) and any applicable industrial instruments such as an award or enterprise agreement.

‘Notice’ is notification of the future termination of employment after a defined period of time has elapsed. Notice allows the non-terminating party to have warning of the contract coming to an end.

Requirements for resignation

Usually, a notice of resignation will need to be in writing to a designated recipient (e.g. a direct supervisor/manager, human resources, business owner, etc) and provide advanced warning of the termination.

Where a resignation is not validly given (for example, the employment contract requires four weeks’ notice but the employee only gives one week’s notice), the employment contract will not be terminated. However, the employer can either accept that defective resignation or affirm the contract, refusing the resignation.

Effectively, even if an employee expresses an intention to resign, it may not necessarily end the employment relationship. This also means that, unless and until the employer accepts the defective resignation, it may be withdrawn by the employee.

What happens if there is no notice period in the employment contract?

Where an employment contract does not provide for a specific notice period to be given upon termination, a term might be implied into the contract requiring a resigning employee to give “reasonable notice”.

What is “reasonable” is determined with reference to how long an employee has been working in that role and the type of employment.

What happens if my resignation is not accepted?

If your resignation is valid (that is, you have met all the requirements under your Award, enterprise agreement or employment contract), then your employer cannot refuse to accept your resignation.

If, however, your resignation has not complied with the requirements of your contract or industrial instrument, your employer may consider it invalid and not accept it.

If it is not in writing, for example, your employer may require you to notify them in writing before the notice period commences, or your employer may require you to work for the whole period of notice you were required to give.

Tips for resigning properly and fairly

1. It is important to read the requirements for resignation contained in your employment contract, award or enterprise agreement. These requirements will determine what you need to do to end your employment with proper legal effect.
2. To avoid the possibility of your resignation being refused due to non-compliance with your contract, it is good practice to discuss your intentions directly with your employer prior to providing formal notice in writing.
3. From time to time, people resign in the heat of the moment only to rethink their decision a short time later. If this has happened to you, you should consider approaching your employer and talking through the issues that led to your resignation. They may be amenable to accepting a retraction of your resignation. Notably, however, if your resignation is valid, your employer has the right to accept it and terminate the employment relationship even if you have changed your mind.
4. When working out your notice period, it’s important to have a positive attitude and assist in the transition. This will lead to a more comfortable period for both employee and employer. It can also assist you with your future employment search, as you can often rely on positive references. Also, it is not unheard of for employees to resign, leave for a period of time and then return to the employer in a new role. A positive and respectful relationship is key to this being an option for you in the future.

Get help from an employment lawyer

In short, your employer cannot refuse your resignation if you have complied with the requirements of your employment contract.

Should your employer refuse your resignation, you should contact an employment lawyer to understand the requirements for valid resignation under your contract and, if your contract is silent on the matter, under general contract of employment law.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au