Backdating a Resignation

An employer must always notify an employee that they are terminating a contract of employment and advise the actual end date unless, of course, the contract of employment includes such a provision such as the end of a task or is a fixed term contract. In return, an employee is under the same obligation to notify the employer that they are resigning and when the resignation takes effect.

In a recent case in the Fair Work Commission the employee had backdated the letter of resignation which then raised the question of whether the employee had lodged their application for unfair dismissal within the 21-day time limit. The employee was claiming he had been forced to resign because of the behaviour of his employer and it was therefore a constructive dismissal.

This issue was considered in Stay v R & K M Jordin Pty Ltd (2024). An employee emailed a resignation letter indicating he had resigned with effect 4 days earlier. The Fair Work Commission needed to determine when the employee’s employment terminated to ascertain if his unfair dismissal claim had been lodged within the 21-day limit.

The Commission recognised the problems that arise if backdating took place. For example, both parties are bound to comply with the employment contract and duties therein until the employer becomes aware of the resignation.

The Commission further noted that it would be unusual if the employee claimed to avoid a breach of the contract or not performing their duties if then sought to retrospectively resign, thus stating that they were not employed at the time of the breach.

Therefore, the termination date was found to be the date on which the resignation the employer was advised of the termination and therefore the unfair dismissal claim was ruled to be within the 21-day time limit.