Can an Employee Backdate their Resignation? Insights from a recent FWC Decision

Not all employment relationships are built to last.

When an employee decides to resign, it is essential that they communicate this decision to their employer. The communication can be either in writing or verbal and the date on which this occurs is the deemed date of notice. However, what would happen in a situation where an employee retrospectively nominates a date?

This was considered by the Fair Work Commission (FWC) in the matter of Stay v R & K M Jordin Pty Ltd (2024).

What happened in this case?

It was widely acknowledged that the employee had difficulties with his employer, R & K M Jordin, and on 22 March 2024 resigned his employment. However, the employee backdated the resignation to be effective from 18 March 2024, which was 4 days earlier. The employee then lodged an unfair dismissal claim in the FWC. The employer then raised a jurisdictional objection noting that the termination was from 18 March 2024 as this was the date nominated by the employee. The employee’s challenge was that the backdated resignation would place his unfair dismissal application outside the mandatory 21-day filing period, as stipulated by Section 394 (2) of the Fair Work Act 2009 (Cth).

The question before the FWC was which date applied?

The FWC noted that there were practical problems with the position that the earlier date applied. Essentially, a termination can only be construed as effective and final once it is communicated by the employee. In other words, it cannot be done retrospectively. It was on this basis that the termination date was found to be on the date that the resignation was communicated, that being 22 March 2024. Therefore, the unfair dismissal claim was within the 21-day limit.

Need Advice?

Disputes involving employee resignations, workplace conduct and termination decisions can have significant legal and commercial consequences for businesses. Clear documentation, consistent processes and timely advice can help minimise risk and avoid costly disputes.

Whether you're managing a resignation, responding to a workplace dispute or reviewing employment-related processes within your business, understanding your options early can help you make informed decisions.

Matthew Hicks, Director & Principal Lawyer and Head of HOCW's Commercial Litigation & Insolvency team, advises businesses on commercial disputes, risk management and strategic legal issues affecting business operations.

Visit Matthew Hicks's profile to learn more about his experience and how he can assist your business.

^{This article was originally prepared by lawyer Jim Babalis, during their time at Hicks Oakley Chessell Williams}