Employer does not accept a retraction of resignation

Mr McKenzie worked as a procurement portfolio manager for Housing New Zealand Corporation (Housing NZ). Another employee made a bullying complaint against Mr McKenzie which Housing NZ investigated. On 25 February 2016, Mr McKenzie met with his manager, Ms Morton, for a regular operational meeting. Mr McKenzie resigned by email the following morning, saying that he was taking up “other opportunities”. Ms Morton accepted the resignation and later the same day, Mr McKenzie indicated by email how he would advise his team of his resignation. About an hour later, Mr McKenzie emailed Ms Morton retracting his resignation.  Housing NZ did not agree to Mr McKenzie withdrawing his resignation and his employment ended on 24 March 2016.

Mr McKenzie subsequently alleged he was unjustifiably dismissed and/or suffered an unjustified disadvantage when Housing NZ refused to allow him to retract his resignation. The sole issue for the Authority was whether Housing NZ acted properly in declining Mr McKenzie’s retraction

The Authority cited a previous Employment Court case which stated different categories of resignation as: where the employee unambiguously resigns; where there is an ambiguous communication that is misunderstood by the employer as a resignation; where the employer seizes on unintended words not reasonably capable of amounting to a resignation; and where the resignation comes in the context of an emotional reaction or outburst. 

Housing NZ was adamant that Mr McKenzie’s resignation fell into the first category above, in that it was unambiguous, referred to him taking up other opportunities, and identified his final day of employment. Housing NZ did not agree to Mr McKenzie retracting his resignation because Ms Morton was unable to establish why Mr McKenzie maintained that his relationship with her had deteriorated. Despite Ms Morton’s efforts to find out why Mr McKenzie had said that, she was unable to establish from Mr McKenzie sufficient details of his concerns to enable her to understand it. 

While Mr McKenzie agreed that on the face of it, his resignation appeared to be unequivocal, he found fault with Housing NZ’s failure to make allowances for the circumstances in which he wrote it. Mr McKenzie claimed that in a meeting between himself and Ms Morton on 29 February, he tried to explain that an altercation with another staff member was the tipping point which activated his resignation. He also cited the bullying inquiry about him as a factor. 

The Authority considered that Housing NZ had not acted in good faith. The Authority noted that once Mr McKenzie purported to withdraw his resignation, Mrs Morton met with him twice for a detailed discussion. The Authority was satisfied on Ms Morton’s evidence that if Mr McKenzie had been able to provide details of the deterioration in their relationship, there may have been a different outcome, however Mr McKenzie did not provide such details.

The Authority concluded that Housing NZ acted appropriately in the wake of Mr McKenzie’s unambiguous resignation and was entitled to not to allow him to retract it. The Authority dismissed Mr McKenzie’s claims. 

McKenzie v Housing New Zealand Corporation [[2016] NZERA Auckland 394; 02/12/2016; J Crichton]


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