Resign or be fired

Resign or be fired!

September 13, 2018 | By Charlene Woodbine, Vitil

You have just performance managed an employee and have concluded that termination is the appropriate outcome. Can an employer ask the employee to resign instead? What if the employee requests to resign?

In both of the above situations, HR Managers across Perth, need to tread carefully to avoid risk of claims made by an employee following a termination.

There is a common view that if an employee resigns (albeit as an alternative to termination) that the Perth employer is immune from any claims. Conversely, the employer may actually feel that they are doing the employee a favour by offering them the opportunity to resign rather than be terminated.

This is fraught with danger

In these situations, the employee may still bring an unfair dismissal claim on the basis that they were constructively dismissed. In making such a claim, the employee will be claiming that they had no option but to resign.

Section 386(1)(b) of the Fair Work Act provides that where an employee who has resigned but was forced to do so because of the employer's conduct, will be considered to be a termination by the employer- otherwise known as a constructive dismissal.

Here are some tips for Perth business leaders who are faced with this dilemma:

  • Ensure that you are clear about the decision to terminate the employee's employment. This should include outlining reasons for the termination following a fair process that meets the requirements of procedural fairness under the Fair Work Act.
  • Do not offer the option of resigning when you are communicating the termination decision.
  • If the employee requests a resignation, be clear that the decision is termination of employment. Any consideration to change a termination to resignation should be done after the employee has been advised of the termination.
  • If you wish to accept an employee's resignation under these circumstances, it is strongly advised that the employee signs a Deed of Release to offer protection to the employer of any potential claims the employee may make.

If you are faced with this dilemma, you are strongly advised to seek advice from one of our experienced Human Resource Consultants who will be able to assist you in managing this situation and minimising your risk of a claim.

Vitil Outsourced HR Consultants

Vitil Outsourced Human Resource Consultants is a boutique HR consulting firm based across Perth, which offers flexible, reliable and affordable outsourced human resource support and recruitment services, where your team is the key focus. By outsourcing HR to an expert in Human Resource Services, our experienced professionals can objectively assess your environment, your human capital needs, and ensure we provide advice and support to further develop your team and your businesses performance.

Contact us to discuss tailoring HR solutions to your business needs.

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