Court decision

When is a resignation not ‘legally effective’?

By Adele Garnett and John Hickey / 16 October 2023
5 min.
Worthwhile read for: Employees, employers, Business owners, HR professionals

The Fair Work Commission’s (FWC) recent decision in Rutter v Anglogold Ashanti Australia Ltd [2023] FWC 1891 has confirmed the necessity for employers to consider an employee’s state of mind when deciding whether to accept their resignation – even if the resignation is not given in the ‘heat of the moment’.

Adele Garnett, Special Counsel and John Hickey, Associate from HopgoodGanim’s Workplace and Employment team, provide a summary of this recent FWC case which considers what employers need to be cognisant of when accepting an employee’s resignation. 


Ms Rutter (Employee) was employed by Anglogold Ashanti Australia Ltd (Employer) as a Process Trainee at the Tropicana Gold Mine from 6 April 2023. The Employee suffered from several serious food allergies, which the Employer was aware of. The Employer advised her that it would make certain arrangements at the mine site so that she could eat anything it provided.

On 26 April 2023, the Employee consumed icing from a cake supplied by the Employer without having checked its ingredients (Incident). The Incident led to her having an allergic reaction which required medical treatment.

On 29 April 2023, the Employee sent her email resignation to the Employer, outlining a range of complaints against the Employer in her 20 days as an employee. On 3 May 2023, after having attended the Employer’s office the previous day to discuss ways to improve food safety on site, she sent an email to the Employer seeking to retract her resignation.

On 4 May 2023, the Employer wrote to the Employee to advise that her resignation had been accepted and that her employment would end that day. The Employee produced medical evidence from two different practitioners on 4 May 2023 and 5 May 2023, both of whom gave unequivocal statements regarding her mental state at the time of the Incident and on the day of her resignation.

The Employee then made an application to the FWC, alleging that her dismissal from the Employer was in breach of the General Protections provisions of the Fair Work Act 2009 (Cth) (FW Act). The Employer objected to the application on the basis that she resigned from her employment in terms that were clear and unambiguous by virtue of her email resignation on 29 April 2023.


The FWC held that the Employee’s email resignation was given at a time where she was in a state of high stress, having regard to the findings of the Full Bench of the FWC in Bupa Aged Care Australia Pty Ltd (t/a Bupa Aged Care Mosman) v Shahin Tavassoli [2017] FWCFB 3941 (Bupa).

In Bupa, the Full Bench held that a resignation is not legally effective if it was communicated in the heat of the moment, or ‘when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign’, even if there was a reasonable communication of resignation by the employee. Bupa also confirmed that a resignation that is ‘forced’ by conduct on the part of the employer will constitute a ‘dismissal’ within the meaning of section 386(1)(b) of the Act.

In the present case, Deputy President O’Keefe found that the Employee’s conduct in attending the Employer’s office following her purported resignation to further discuss food safety in the workplace and her subsequent request to revoke her own resignation accompanied by unequivocal medical evidence of her state of mind, should have given the Employer further reason to explore the true intentions of her resignation. It did not matter that the resignation was not given ‘in the heat of the moment’. It was also accepted that the grievances raised by the Employee were not general complaints about unspecified issues (as is often the case with resignations), but rather specific grievances about issues that presented a genuine and significant risk to her individual health and safety.

The FWC ultimately held that the Employee’s resignation did not constitute a valid resignation. As such, it was a termination initiated by the Employer, consistent with the findings in Bupa. The FWC dismissed the Employer’s jurisdictional objection.

Key takeaways: 

  • employers should carefully consider the mental state of an employee when deciding whether to accept a resignation, particularly where the employee has attempted to ‘take back’ their resignation; 
  • where a resignation is given when an employee is in a state of distress, it may not be legally effective, and the acceptance of the resignation may constitute a dismissal at the initiative of the employer under the FW Act;
  • a traumatising incident within the workplace, particularly where the employer arguably contributed to the incident, will be relevant in considering an employee’s mental state and the effectiveness of any resignation; 
  • even a “clear and unambiguous” resignation may be held to be an invalid resignation when considering the mental state of the employee;
  • it is important to carefully consider any medical evidence provided to support a withdrawal of resignation;
  • the FWC may consider post-resignation behaviour of an employee when deciding on whether a resignation was validly made. 

Understanding the validity of a resignation can be complicated, and requires detailed consideration, and analysis. If you require any assistance in dealing with an employee’s termination of employment, please contact our Workplace and Employment team for detailed advice specific to your situation.

With thanks to Legal Assistant Nada Dawood in assisting with this article. 

Key Contacts
Adele Garnett
Special Counsel
Adele is a Special Counsel in our Workplace and Employment practice.
John Hickey
John is an Associate in our Workplace and Employment team.

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