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It can be stressful when an employee resigns, particularly if they do so in the heat of the moment on a difficult day. It can get even more complicated when the employee then seeks to withdraw their resignation. Your obligations as an employer differ depending on the circumstances of the resignation. If there is ambiguity surrounding the resignation, you should give them the benefit of the doubt. This article sets out:

  • the usual resignation process; and
  • how your obligations as an employer differ in a few of the most common situations.

How Resignation Typically Works

An employee can resign at any time. Usually, as an employer, you would then:

  1. check the employment agreement to confirm the notice period;
  2. accept the resignation request;
  3. calculate the employee’s final pay; and
  4. collect any company property they may have.

Note that while some employers may have exit interviews with employees who resign, this is not compulsory or mandatory by law. However, it may be in your business’ interests to get a fuller picture of your employee’s reasons for resigning.

As soon as the employee has given the required notice set out in their employment agreement, you cannot stop them from leaving at the end of that period. This is even if you do not formally accept that notice. Accepting notice is acknowledging that the employee is resigning.

If an employee has resigned verbally, you should document this and ask the employee to write the date they propose to finish work. You can then follow up by accepting their resignation in writing.

However, if an employee tries to withdraw their resignation later, it is a more complicated situation. Your good faith obligation as an employer is important to consider whenever there is ambiguity.

When An Employee Tries To Withdraw An Unambiguous Resignation

If an employee clearly resigns and later seeks to take it back (particularly after time has passed), usually they cannot do so unless you consent. Most resignations are relatively clear in this way, and the employment relationship will end unless both you and the employee agree otherwise. You do not have a legal obligation to accept a withdrawal request in these circumstances.

When An Employee Tries To Withdraw An Ambiguous Resignation

However, there are a different set of obligations where you may have misinterpreted an ambiguous statement as a resignation. This is very common where there are discussions around resignation, and some employers may think that their employee had resigned when the employee did not intend to do so. 

For example, an employee does not say the words “I resign” but says something like “I am considering resigning”. Here, you should not leap to the conclusion that the employee has resigned. Your obligation of good faith as an employer requires you to enquire into what the employee meant.

In this kind of situation, you cannot simply rely on your interpretation of what the employee said (or did) as a valid resignation. The law requires you to take steps to clarify and be sure the employee intends the resignation. This can be as simple as checking in with the employee and asking them to resign in writing. 

When An Employee Tries To Withdraw An Emotional Resignation

It is also a complicated situation when a resignation from an employee comes in the context of an emotional reaction or outburst.

For example, you are having a strong disagreement with an employee. They then say something like “I can’t take this anymore – I resign” and leave the office. This is not necessarily a legally clear or valid resignation.

If they change their minds after a day or two, your obligation of good faith requires you to let the employee withdraw that kind of emotional resignation.

Generally speaking, employers should give their employee who has resigned emotionally a reasonable opportunity to reconsider their decision and potentially withdraw the resignation if they choose to.

Key Takeaways

When an employee tries to withdraw a resignation, your options depend on the manner of the resignation in question. If there is a clear and unambiguous resignation, particularly one put in writing by the employee, you do not have an obligation to accept the request to withdraw. 

However, if there was ambiguity, or if the employee resigns after an emotional day, you do have a good faith duty to not consider the resignation as final. Generally, you should give your employees in these situations a chance to cool off and reconsider their decision. If you want to know more about responding to an employee trying to withdraw their resignation, contact LegalVision’s New Zealand employment lawyers on 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

Can an employee withdraw their resignation?

This depends on the circumstances. In general terms, an employee cannot withdraw clear resignations. Ambiguous or hastily made resignations may be withdrawn if there is sufficient doubt that an employee genuinely intended to resign.

Does my good faith obligation as an employer still apply if an employee has resigned?

Yes, your good faith obligation still applies. This is true if, for instance, you believe they resigned, but they say that they did not.

Is it legally required to carry out an exit interview for employees who resign?

No, it is not legally required to carry out exit interviews.

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