Thu Aug 15

‘They won’t let me go’. Can your boss stop you from resigning?

Written by: Joellen Riley Munton, Professor of Law, University of Technology Sydney

You are working long hours, being repeatedly rostered to work weekends and are increasingly anxious and unhappy in your job. Enough’s enough, you decide to quit, but your boss won’t let you.

The ABC’s Four Corners program ^[1] presented this scenario as part of an investigation called “Don’t Speak” into alleged bullying of staff at the Seven Network, which screened on Monday night.

The woman who reportedly experienced this, told a colleague she felt like “I had a noose around my neck”. She also said she tried to quit, but “they won’t let me go”.

So can an employer reject a resignation and what are your legal rights when it comes to quitting a job?

An employee’s rights

In Australia, employment is a contractual relationship ^[2], which means the employee’s rights will generally be governed by the terms of the contract. Every employment contract includes a term allowing employees to resign.

If there is no written term, it will be implied the contract can be terminated by giving “reasonable notice”^[3]. What is “reasonable” depends on the nature of the job. Professional jobs often require longer notice than manual jobs.

Often, the employment will be governed by a modern award ^[4] or enterprise agreement ^[5] that provides for a certain number of weeks’ notice.

What if you are resigning because you are miserable and can’t tolerate the thought of serving out a notice period? No one can actually make you work.

People cannot be forced to work

The law will not require a person to serve another person ^[6], but you might (in theory) be asked to pay damages for any loss you cause your employer by failing to comply with your contract terms.

The fact an employee might be required to pay damages was confirmed in the case of Zuellig v Pulver 2000 NSWSC ^[7] The case was about whether an employer could stop employees from leaving and going to a competitor, after the employer had already accepted their resignations on short notice.

Damages might include the extra cost of hiring a temporary staff member to cover your notice period. You’ll forfeit any pay you would have earned during the notice period if you choose not to work but you should still receive any accrued annual leave entitlements.

While an employer can’t make you work, they can usually get an injunction ^[8] stopping you from working elsewhere during your notice period, as long as the time isn’t so long as to constitute an illegal restraint of trade.

Getting an injunction is an expensive process, so an employer is unlikely to do this unless they are particularly aggrieved by your early resignation.

Why an employer might reject a resignation

This brings us to why an employer might reject a resignation. If the employer wants to stop you going somewhere else, they will need to demonstrate that they did not accept your immediate resignation.

It is also possible an employer will be thinking about a possible unfair dismissal claim ^[9] from an employee who resigned in a state of distress, and regrets it later.

Angry man gesticulating to distressed women

Employers need to be careful accpeting resignations from a distressed employee. Tiko Aramyan/Shutterstock ^[10]

A resignation offered in the heat of the moment may be found legally ineffective ^[11], and an employer who accepts it can be found to have unfairly dismissed the worker if they don’t let their employee withdraw their resignation.

A wise employer wants to avoid being sued for constructive dismissal ^[12] that is, for creating a hostile environment that gives the worker little choice but to quit.

They also don’t want to be accused of taking “adverse action” against an the employee who has made a complaint. The best way to avoid these circumstances is to not accept a resignation made during difficult conversations.

In the end, however, employees who don’t want to remain in their jobs can resign, and can make it clear to the employer that they do not wish to serve out their notice period.

Entitlement to wages will cease as soon as the employee leaves, and so will any further accrual of leave entitlements. An employer might succeed in stopping the employee from taking up another job during the notice period, but they won’t be able to force an employee to come to work.