Many of us when deciding upon leaving a place of work, will do so without giving it a second thought. However, there may be some instances where notice has been provided, but either the employer or employee may then wish to retract the notice. Therefore, the obvious question is: Can notice be withdrawn?
First, notice can be withdrawn at any time before it is received. Obviously.
Turning to a scenario where notice has been received, the common law regards valid notice of termination as a unilateral act. So as a consequence, the notice will take effect in accordance with its terms as Gray J observed in Birrell v Australian National Airlines Commission (1984) 5 FCR 447 (at 458):
“[T]he purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disputed, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties.”
Where applicable, upon the reception of notice to terminate the contract of employment, may not be withdrawn once it is received, as Spigelman J said in State of New South Wales v Paige NSWLR 371 (at 277):
“Subject to any contractual or statutory provision to the contrary, the act of resignation from employment, or from membership of an organisation, is a unilateral act that takes effect in accordance with its terms and does not depend upon acceptance by the person or body to whom the resignation is directed. This common law principle is a reflection of the significance the common law has always attached to personal autonomy. Where this principle applies, unilateral withdrawal of a resignation or notice of termination is not possible.”
Can notice made at an emotional moment or under duress be withdrawn?
Although the autonomy of the individual has been recognised, the common law does make a qualification where the retraction of notice may be permissible if the free will of the person was absent, as was the case in Paige (at 286): “By reason of the significant purposes served by the common law principle, the qualification should be restricted to circumstances in which the act of resignation was not, in truth, a manifestation of the personal autonomy of the individual.”
In Martin v Yeoman Aggregates Ltd (1983) ICR 314, an employer was in an emotional state, resulting in an act where the employer dismissed an employee. However, the notice was withdrawn within five minutes, and under such circumstances, may provide a qualifier to the usual common law position.
Additionally, resignations made under duress or made involuntarily due to a confused or emotional mental state, can also be instances where a unilateral and swift retraction can be acceptable (per Birrell v Australian National Airlines Commission (1984) 5 FCR 447 at 459; Gunnedah Shire Council v Grout (1995) 62 IR 150 at 160).