What you need to know before resigning

Before you resign, be prepared and carefully consider what steps you need to take to ensure your exit from employment is smooth, and your reputation remains positive at the conclusion of your employment.

The way you work your final days after giving notice to your employer can be just as important as the way you started out. And regardless of whether your work experience has been positive or not, the best approach is to resign in a polite and considered manner.

Here are some of the dos and don’ts to consider when resigning.

Notice periods

The Fair Work Act 2009 (Cth) sets out the minimum period of notice you are required to give your employer when you resign. However, your employment contract or an industrial instrument that applies to your employment could contain a longer notice period, so it’s prudent to confirm your notice period before communicating your intention to resign.

You can reduce your notice period only if your employer agrees. With this in mind:

  • Do seek to negotiate a shorter notice period if this is relevant to your circumstances. However, if you elect to do so, be prepared. Develop a comprehensive transition and handover plan that shows your employer you can complete your outstanding tasks and handover in a shorter period of time. An employer is more likely to discuss or consider a shorter notice period if you can demonstrate you won’t be leaving them in the lurch.
  • Don’t fail to give the required notice. If you fail to do so, depending on the terms and conditions of your employment, your employer may be entitled to withhold money from the termination payments that you would otherwise receive.

Sick leave and annual leave

You’re entitled to access sick leave during your notice period, so:

  • Do access your sick leave if you’re genuinely unwell.
  • Don’t take sick leave, and then post a picture on social media lying on the beach, drinking with friends or generally looking healthy as ever.

If you’ve accrued annual leave, this entitlement will be paid to you when your employment ends.

If you’ve accrued annual leave and you do want to use it during your notice period, you’re entitled to access it, provided your employer agrees to your request to take annual leave (the Fair Work Act states that an employer must not unreasonably refuse an employee’s request to take annual leave). However, it’s important to remember that the whole point of the notice period is to give your employer time to transition a new employee into your role and to deal with your handover and exit. So:

  • Don’t just march in and announce, “I’ve got a holiday booked, so I’ll be taking annual leave during my notice period.” This will likely go down like a lead balloon.
  • Do go in prepared and justify why your requested period of annual leave will not compromise your ability to complete your outstanding tasks and handover.

Restraint of trade clauses

Check your employment contract to see whether it contains any restraint of trade clauses. Basically, such clauses aim to prevent you, for a certain amount of time and within a particular geographical area from:

  • working for a competitor or client;
  • approaching your previous employer’s clients once you begin your new employment; and/or
  • soliciting staff from your previous employer.

If you do have one of these clauses in your employment contract and you’re thinking of resigning, it’s important to fully understand its effect.

  • Do seek legal advice regarding the enforceability and interpretation of the clause. It could potentially limit your options for future employment.
  • Don’t go to work for a competitor, for example, without understanding the risks you face should you act inconsistently with your post-employment obligations.

Timing and communication

When you resign, there are practical considerations you should turn your mind to, including your timing and how you communicate your resignation to your employer.

Each employee’s circumstances will differ, depending on the nature of the employment relationship. Nevertheless:

  • Don’t storm in while your boss is in the middle of something and announce, “That’s it! I’m leaving!” This will reflect badly on you.
  • Do afford your manager the courtesy of letting them know first, before you tell the rest of your team.
  • Do ask for a meeting with your boss at a mutually convenient time and in a private area.
  • Do be honest about your reasons for leaving; however, don’t fall into the trap of being too exhaustive in your list of reasons, particularly if they’re all negative reasons.
  • Do focus as much as possible on the positives, such as the new opportunities or career progression you’re pursuing. This is a safe way to play it, particularly if you’re requesting a shorter notice period or need a reference in the future.
  • Do be professional and polite. You don’t want your employer’s final impression of you to be negative, and avoid doing anything that damages your reputation in the market.

Finally, at the end of the employment relationship, you can seek legal advice if you want to confirm that your final pay is correct and that all legal entitlements have been paid to you.

TOPIC: Employment law
RELATED LEGAL SERVICES: Employment law

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Mia Pantechis

Maurice Blackburn Sydney
Mia Pantechis is an employment and industrial Senior Associate, practising in Maurice Blackburn’s Sydney office. She is listed by the prestigious Doyles Guide as a member of one of the top law firms for employee & trade union representation in NSW in 2017. Mia graduated from the University of Sydney with degrees in law, economics and social science, with majors in industrial relations and human resource management. She worked for two years at a specialist employment law firm before joining Maurice Blackburn in 2014. Mia is an ambitious and dedicated lawyer with experience providing advice to clients across a range of employment law issues including, employment contracts and policies; award interpretation; restructures and redundancies; performance management; terminations; discrimination and harassment; unfair dismissals; and adverse action matters. Her advice to clients is strategic, practical and solution focused, and she is driven to fight by the challenge of achieving fair outcomes for employees who are faced with the power imbalance in the employment relationship. “Employment is a unique area of law that is constantly evolving. It was this, together with my desire to fight for people who have been treated poorly by their employers that lead to my decision to practice in this area,” says Mia. Memberships & accreditations Law Society of NSW member Awards Lawyers Weekly 30 Under 30 Workplace Relations, Employment and Safety finalist 2016 ...

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