Bust a move — can you resign by interpretive dance?

Release Date

19 November 2013

What do the latest viral video on YouTube and employment law have in common? Paul Munro investigates.

While searching for WorkplaceInfo article ideas, your correspondent came across this video of an employee named Marina who resigned from her job for a Taiwanese animator through ‘interpretive dance’.

The story has been picked up by media across the globe and ‘gone viral’: In less than four days, the video was viewed more than 7.5 million times on YouTube, which is ironic, since one of the reasons Marina resigned was her employer’s preoccupation with hits, on the videos she produced, rather than quality.

Would it work in Australia?

Because of the ubiquity of social media such as YouTube, Facebook and Twitter, along with other electronic communication such as texting or email, it’s increasingly likely that you will one day receive an employee’s resignation by one of these means of communication (if you haven’t already).

Since a video (particularly one without any speaking) is an unusual way to tender a resignation, it raises a number of questions about whether it’s an acceptable form of resignation for Australian employers:

Is dancing enough?

If you watch the video, the dance routine itself doesn’t clearly convey an intention to resign (although I’m clearly no expert on interpretive dance). It’s the subtitles that explain the reasons for Marina’s resignation, with the final subtitle stating ‘I quit’. However, at no stage does Marina verbalise her intention to resign (or even mouth the words ‘I quit’ in synch with the subtitle). On it’s own, it’s questionable whether this video constitutes a resignation.

How did the employer find out?

The media reports don’t explain how the employer was made aware of the video. Did Marina send a link to it via email to her manager, or was it only released on YouTube? An employee needs to deliver his or her resignation directly to the employer for it to be taken seriously.

Did the employee create the communication?

Being a video production house, the employer would need to be certain the video was indeed produced by Marina and wasn’t a prank by a fellow employee, putting their own subtitles onto an existing video. If you receive a link to a video concerning one of your employees, make sure you contact the employee and confirm (preferably face-to-face) that, in fact, they created it and that they intend to resign.

Security issues surrounding modern communication devices and social media mean that other people may access them without the employee’s permission. Also, because social media is a relatively new technology, many people may not be familiar with some of the security risks involved with social media access.

Is it clearly a resignation?

The issues raised in the interpretive dance video apply to any form of notice of resignation given by an employee. If the words of resignation are unambiguous, then an employer is entitled to treat them as such.

It’s important that you ensure an employee’s intention to resign, because any misunderstanding may result in an unfair dismissal application. The FWC is required to determine whether termination was at the employer’s initiative, or whether the employee resigned of their own accord.

An employee who serves their notice personally to the employer, in writing, is an example of an unequivocal intention of the employee to terminate the employment. Notice by other methods, such as verbally, can be acceptable, although difficulties may arise in verifying the resignation if the employee changes their mind.

The door swings both ways; in unfair dismissal matters, the use of texts or emails by employers to give notice of termination to employees is usually viewed by the Fair Work Commission (FWC) as inappropriate, although circumstances may exist where texting or email is the only viable alternative.

Are you opening yourself to an unfair dismissal claim?

Non-standard methods of resignation (such as interpretive dance) can be problematic for employers. The most common scenarios considered by the FWC when determining whether an employee resigned or was dismissed are a ‘heat of the moment’ decision by an employee, or constructive dismissal (ie the employee resigned but it was due to the employer’s pressure).

Heat of the moment

Words may be said by the employee in the heat of the moment, which industrial courts and tribunals refer to as ‘special circumstances’. Where special circumstances arise it may be unreasonable for an employer to assume a resignation and accept it as such.

A reasonable period of time should be allowed to lapse. If circumstances arise which indicate that you need to dig deeper and confirm whether the resignation was really intended and can be properly be assumed, then such inquiry is ignored at your risk.

Constructive dismissal

The Fair Work Act reflects the common law concept of constructive dismissal, and allows for a finding that an employee was dismissed (perhaps unfairly) if:

the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.

Examples

An employer may demand a resignation with a threat of dismissal. Negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that their resignation may be said to be given freely and without undue influence being brought to bear by the employer.
When there are several instances where a single incident of verbal abuse has given rise to a successful claim of constructive dismissal. In one case, a director said to his secretary: ‘She is an intolerable bitch on a Monday morning’, which amounted to constructive dismissal. Also, an assistant manager saying to an employee: ‘You can’t do the bloody job anyway’, not believing this to be true, was deemed a constructive dismissal. In another case, an employee who was falsely accused of theft was found to have been constructively dismissed.

In an unfair dismissal application, the onus is on the employee to prove they did not resign voluntarily. The employee must prove that the employer forced their resignation.

Technology-related challenges

Apart from the legal obligations surrounding resignation by social media, cases such as this video create internal and external management problems for employers. In the case of Marina’s interpretive dance video, the employer quickly produced its own interpretive dance video countering Marina’s claims and spruiking the benefits of working for the company, in a light-hearted and non-confronting way.

How to deal with that type of problem is the subject of a completely different article.

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Source: Paul has over 30 years’ experience providing advice to employers on workplace issues, with over 25 years as a workplace relations advisor with New South Wales Business Chamber. Paul has also been in a workplace advisory role with employer organisations in the timber industry and club industry.

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