Don’t Quit! Why You Should Talk to an Employment Advocate Before You Resign.

Resigning from a job during a dispute can feel like the only option sometimes. Perhaps things at work have become impossible, you’ve been treated unfairly, or you believe your employer has broken their obligations. But resigning carries serious consequences. Before you take that step, it is often wise to speak with an employment advocate. This post explains how your position changes once you resign, what rights you may lose (or preserve), and how an advocate can help.

In New Zealand, employment law gives employees certain protections including rights to raise a personal grievance, rights under the Employment Relations Act 2000, the duty of good faith, minimum leave, and other statutory entitlements.

It is very rarely advisable for an employee to resign during a dispute before seeking legal advice as resignation can severely limit options and potential remedies. Resigning signals the end of the employment relationship and the employer is under very little obligation to accept a retraction, even if the resignation is made in the heat of the moment. 

What changes when you resign?

To really understand why it matters to get advice before resigning, we need to compare what your legal position is before you resign, and what it becomes once you resign.

Ability to Raise Issues / Grievances

Whilst you are still an employee, you have ongoing rights to raise a personal grievance, disadvantage claims, or claims under the Employment Relations Act 2000 (for example for harassment, unfair treatment, constructive dismissal). You can seek remedies, negotiate, or pursue mediation.

Once you've resigned, your ability to claim depends on what kind of claim and whether you can show the resignation was forced (i.e. constructive dismissal). Voluntary resignation limits what you can claim because a key feature is that you chose to leave.

Burden of Proof and Legal Thresholds

While you are still employed you can request that your employer remedy things. If the employer has breached contract or duty, you can use internal grievance processes, mediation and possibly reach settlement. It’s can also be easier to gather evidence of your dispute while still employed.

After resigning, if you claim constructive dismissal, you must show that the employer’s breach was serious, that you had no real alternative than to leave, and that you resigned in response to that breach within a reasonable time frame.

Negotiation Leverage

While you are still employed you typically have more leverage. The employer may prefer to resolve things with you before they escalate to a resignation and/or legal action.

After resignation, some of that leverage may be lost. The employer may argue you voluntarily resigned without giving them a chance to fix the issues. They may say that your resignation has ended your employment relationship so certain remedies are no longer available.

Speed of resolution

While you are still employed, raising a complaint can often help you achieve a resolution much more quickly than if you have already resigned.

After resignation, a grievance can be delayed in lengthy negotiations, mediation and ERA hearings and drag out for a long period of time before resolution.    

Financial / Practical Consequences

If you are still an employee you continue to receive your pay, leave, and other entitlements while the dispute is resolved. You also can often continue working ensuring you are still receiving an income and other benefits.

When you resign, you pay will cease including employee benefits, and you may have obligations under notice periods.

Resigning isn’t just quitting.  It often means changing from a position where you have multiple tools to a position where many of those tools are curtailed.

What can an Employment Advocate do for me if I haven't resigned yet?

An employment advocate is someone who understands employment law, the remedies available, and how disputes are resolved in practice. Here’s how they can help before you resign.

Assess the Strength of Your Case

An advocate will help you figure out whether your claims are likely to succeed. Is the conduct of your employer a breach of the employment agreement or of statutory obligations (e.g. good faith)? Is it serious enough that it could amount to constructive dismissal? What is the evidence?

Plan Steps to Raise the Issue

Sometimes just making the issue known to the employer (in writing, through internal grievance processes) can change things. It shows you’ve given the employer a chance to fix things. This can strengthen your case later. An advocate can help plan your approach and ensure you follow the right processes.

Advise on Timing and Evidence

An advocate can help you assess things like how long you have waited after bad conduct before resigning, whether you have sufficient documentation (emails, performance reviews, minutes, etc.), and whether you have witnesses. Their experience with similar cases can be invaluable to understanding the best approach in your circumstances.

Negotiation and Mediation

An advocate can assist in negotiating with your employer to try to resolve the dispute without resignation. Perhaps you can get changes, compensation, or a settlement prior to, or instead of, ending the employment relationship.

Evaluate Notice Periods, Contract Terms, Obligations

An advocate can help you understand the terms of your employment agreement including how much notice you must give, what notice obligations exist, whether resigning early would breach your contract (and what cost that might have), and whether there are clauses which will apply after your leave such as non compete or restraint of trade.

Emotional and Practical Advice

Workplace disputes are stressful. An advocate can help you through the emotional, financial, and practical side‑effects: e.g. what happens to your pay, leave, references, and planning what to do next if you leave.

What are the risks of resigning without legal advice?

Some of the risks people face if they resign without talking to an advocate include:

• Losing the ability to claim certain grievances: If you resign voluntarily rather than being forced, you may lose the ability to claim unjustified dismissal, or you may make it significantly harder.

• Weak evidence: Because you resigned, it may look like you left of your own accord, or without giving the employer a chance to respond.

• Surprise costs: You may owe notice, or forfeit some pay or benefits, or breach contract terms.

• Emotional regret: Later wishing you'd tried to hold on or see what could be done.

• Lost leverage: Employers may be more willing to negotiate while you are still employed.

Real‑World Example:

Sarah works in a small firm. She’s been consistently overworked, with her role expanded, and deadlines tightened without support. Sarah has asked her manager, in writing, to clarify expectations. Nothing changes. Sarah becomes stressed, mentally and physically. She thinks she should resign.

If Sarah talks to an employment advocate first, the advocate might advise her to:

• Keep gathering evidence (emails asking for support, showing expanded role, sick leave if relevant).

• Raise a formal concern / grievance.

• Consider whether the behaviour is a breach of contract or duty of good faith.

• Advise how long she should wait, or whether to resign immediately.

• Negotiate a settlement or change with the employer if possible.

If she resigns right away without that, her advocate later may find it harder to show she was forced to leave: employer might say she chose to go, or that there was no serious breach, or that she didn’t give them a chance. Her claim for constructive dismissal might be harder to succeed, and she may lose out on compensation or other remedies.

Resigning is a big change.  Your legal status, ability to raise issues, burden of proof, remedies and rights shift significantly. It isn’t just stepping away, it often means closing off some paths.  Getting advice first is almost always worthwhile.  An employment advocate can help you understand your situation, your rights, how strong your case is, and what your options are. Resignation isn’t your only tool in a workplace dispute.  There are other paths such as a personal grievance, negotiation, mediation, etc which may preserve your rights better.  

A Mathews Walker advocate commented that while some employees think they should just resign when the going gets tough, but that can mean losing the opportunity to address concerns while still employed and losing the ‘home court advantage'.  Speaking with someone who knows the terrain, such as an employment advocate, can help you make an informed decision for a better outcome. If you are considering resigning, call us today for a free consultation.  MathewsWalker.co.nz | 0800 612 355

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Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.