Handling a Resignation

If you have employees, sooner or later one or more of them are likely to leave you for a variety of reasons.

One of the questions I often hear is, "Does a resignation have to be in writing?"

The short answer is it depends on your employment agreement. While there is no legal requirement for a resignation to be in writing, if your employment agreement requires notice to be "given in writing" by either party then, under those conditions, it is a requirement of the employment agreement for the notice to be in writing. Neither party can unilaterally change or ignore the terms and conditions of the employment agreement.

Another question that arises is, "Can you refuse to accept that resignation?" While the answer here comes down to whether or not you want to the employee to stay, from a legal perspective, an employer cannot refuse a resignation. If you want to retain the employee then you need to have a different discussion to unpick why the employee is leaving and see if you can come up with a strategy to convince them to stay with you. This may mean putting in a counter-offer of a pay increase, which may be effective if the employee is leaving to gain a higher income.

However, always treat a counter-proposal with caution. Often, regardless of whether you are successful in retaining the employee, the employee has already made a psychological decision to move on and retaining them may not always be in your best interest.

An employee does not need their employer to formally accept their resignation. Under New Zealand employment legislation, once the employee has worked out their notice period, you, as their employer, have no recourse to stop them from leaving. However, most employers will formally accept a resignation in writing although verbal acceptance can be exercised as well.

In formally accepting a resignation, it gives the employer an opportunity to thank the employee for their service and also set out what, if any, duties the employee needs to complete during their notice period and what property needs to be returned on the employee's final day.

A third question that often gets asked is, "Can the employee withdraw their resignation?" The short answer to this is "Yes" however, it is up to the employer as to whether they allow the resignation to be withdrawn.

If a resignation has been tendered, verbally or in writing (which includes by email or letter), in the heat of a moment, say for example after an argument with their employer or a manager, or as a result of being invited to a disciplinary or performance improvement discussion, it is recommended that you give the employee at least 24 hours to reconsider their resignation. To accept such a resignation on the spot can expose you to a claim of constructive dismissal.

When you receive a resignation following an emotional or heated discussion, always advise the employee to take some time and even seek some independent advice to reconsider their decision. This is called a "cool down" period. After this "cool down" period, have a discussion with the employee to confirm whether they really do wish to resign. If they wish to withdraw the resignation, then you should allow them to do so.

When an employee resigns, they should give the required notice as specified in their employment agreement, unless you otherwise agree to waive or forgo that notice. If you do not waive the notice period and the employee does not provide or work out any of their required notice, depending on your employment agreement you may be able to seek redress from the employee. Always seek advice before going down this path.

If an employee resigns due to being invited to a disciplinary meeting this does not automatically mean the disciplinary process ends. If the employee has given notice and works that notice period out, you can still continue with the disciplinary process. In matters of serious misconduct, this means an employee who has given notice of resignation could, despite their resignation, still be summarily dismissed if their conduct warranted such an outcome.

If you need assistance in handling a resignation, do not hesitate to contact McKone Consultancy for advice and support.

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