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Introduction to Dismissal or Resignation

Dismissal or Resignation?

An employment relationship can be terminated mutually or at the instance of one of the parties. To address the risk of an aggrieved employee being able to claim for unfair dismissal or wrongful dismissal, it is necessary to distinguish between dismissal, resignation and other ways in which an employment relationship may end.

If you terminate an employee's employment, with or without notice, this amounts to dismissal, in principle giving the employee a right to claim that he was unfairly dismissed or wrongfully dismissed.

If the termination is genuinely at the instance of the employee, it is resignation. But an invitation to resign may well be considered, in reality, to amount to a dismissal, especially if an element of duress is involved. However, if resignation is offered as a genuine alternative (for instance, to a disciplinary hearing or reporting a possible criminal act to the police) then the termination may still be considered a resignation.

Pre-dismissal meetings can be heated and recollections may be confused. If an employee appears to resign, it may still be that he should be allowed a cooling-off time to reconsider. The test is whether a reasonable employer would have taken these words and behaviour to amount to resignation. The employee's real intent behind the words used, particularly where they are ambiguous or said in temper, will need to be assessed. In particular, the resignation should refer to a specific date or time rather than signifying a vague future intention to leave.

If there is a likelihood that a meeting may end in resignation or dismissal, ensure that notes are taken during, or immediately after, the interview. Be clear, orally and in writing, in stating your position.

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