UDD1753

Background

The Complainant commenced employment as an Assistant Planner with the Respondent in November 2000. His employment ceased on 17^thMarch 2016 at which stage he was working as an Executive Engineer. The Complainant states that while he initiated the early retirement process he then changed his mind about retiring. He notified the Respondent in writing that he had changed his mind but the Respondent refused to let him withdraw his application for retirement.

Complainant’s case

The Complainant told the Court in evidence that in December 2015 he notified Longford County Council of his intention to retire in order that they could make provision for his lump sum in their annual estimates. On 6 subsequent occasions, 22/12/15, 4/1/16, 18/1/16, 2/2/16, 9/2/16 and the 12/2/16 he requested a change to his retirement date. By letter of 12/2/16 he advised that if they could facilitate his retirement on 17^thMarch 2016 that would be his final letter regarding modifications to his retirement date. Following this the complainant received a letter from the Deputy Chief Executive confirming his retirement date of 17^thMarch 2016. As time passed he felt he was making a huge mistake so he wrote to the Council on the 3^rdMarch 2016 requesting to withdraw his letter of resignation.

The Complainant in evidence told the Court that the Deputy Chief Executive would not allow him withdraw his letter and that he was not aware that he was legally entitled to do so. Following his letter of the 3^rdof March seeking to withdraw his letter of resignation he was invited to attend a meeting with the Deputy Chief Executive on Monday 6^thMarch 2016.

The Complainant initially told the Court that he did not know the purpose of that meeting but in evidence he confirmed that the Deputy Chief Executives secretary had advised him it was in connection with his letter of 3^rdMarch 2016. The Complainant’s initial evidence was that the letter was not discussed at that meeting and that the Deputy Chief Executive did not even have a copy of the letter with her. He later went on to say that she may have had the letter with her and that she may have asked him about the letter. He confirmed, that during the meeting, he did seek a further extension to amend his retirement date to April and that the Deputy Chief Executive undertook to consider his request for an extension and to revert to him. The meeting finished on that note.

He stated that he received a phone call that afternoon from the Deputy Chief Executive advising that the extension would not be granted and that his retirement would go ahead on the 17^thMarch 2016. Subsequently, that was confirmed to the Complainant by letter dated 11^thMarch 2016. He felt the Deputy Chief Executive should not have given him this information over the phone as he worked in a general office. He could not recall if she had asked if he was free to speak at the start of the phone call.

He confirmed that he received all documentation in relation to his lump-sum and pension and attended an office retirement party held for him prior to his actual retirement date. Immediately following his retirement on the 22^ndMarch 2016, a solicitor wrote to the Council on his behalf advising that he did not wish to terminate his employment. This was followed up by the Complainant who wrote to the Council on 22^ndApril 2016 advising that he “made a big mistake in retiring early”. The Complainant also indicated that if it was possible to suspend the pension payments he would appreciate it if he could return to work.

The Complainant stated in evidence that he met with his Director of Service on the 9^thMarch 2016 and asked him if he could talk to the Deputy Chief Executive and advise her that he did not want to retire and wished to withdraw his resignation. He later clarified that it was not a formal meeting but that he had bumped into the Director of Service on the corridor and mentioned it to him then. He was unaware of whether, or not the Director of Service had acted on his request.

He again spoke to the Director of Service the day after his retirement Friday 18th March 2016 and advised that he believed that he had been foolish to have suggested early retirement. He asked to speak to the Deputy Chief Executive but was advised that she was on annual leave.

Respondent’s case

The Respondent disputes that there was in fact a dismissal. It is their position that the Complainant had applied for early retirement and had been facilitated in relation to same. The Respondent does not dispute the facts or the correspondence up to the meeting on the 6^thMarch 2016.

The Deputy Chief Executive (as she was at the time of the complaint) in evidence to the Court stated that following normal salutations at the start of the meeting on the 6^thMarch 2016 she had asked the Complainant about his letter of the 3^rdof March 2016 seeking to withdraw the letter of resignation. Her evidence was that the Complainant stated that he had sent the letter to withdraw his letter of resignation because he was embarrassed about the number of times he had changed his mind about his retirement date and that he now wanted to retire in April 2016. The Deputy Chief Executive stated that she asked what difference it would make if he retired in April rather than March and that he could offer no clear reason. The meeting ended and she agreed to consider his request for a change in retirement date to April and indicated that she would get back to him with an answer. Later that afternoon she telephoned him and asked if he was free to talk, he confirmed he was. She then advised him that she could not agree to change of date to April and that his retirement would go ahead on the 17^thMarch 2016 as previously agreed.

The Director of service went into evidence in relation to his engagement with the complainant post the meeting on the 6^thMarch 2016. He could not recall a discussion with the Complainant on the 9^thMarch 2016 . The only engagement he had with the Deputy Chief Executive in relation to the Complainant’s retirement was by email of 14^thMarch advising that the Complainant was looking to move his retirement date from the 17^thMarch to the 24^thMarch so he could use 5 day’s annual leave. The Director of Service gave evidence that to the best of his knowledge he was not aware until after the Complainant retired that he had sought to withdraw his letter of resignation.

The applicable law

Section 1 of the Act defines dismissal in the following manner

1. “dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Section 6(1) states

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Issues for the Court

As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.

Discussion

The Complainants case is that his dismissal was unfair as he was not allowed to withdraw his resignation. The Complainants representative confirmed to the Court that he was not claiming constructive dismissal as defined by section 1 of the Act nor was this a case where a contract expired. Therefore, the claim falls to be determined under (a) set out above.

With, the exception of the content of the meeting of the 6th March 2016 there is no dispute between the parties in relation to the facts of the case. The Respondents position as given in evidence by the Deputy Chief Executive is that the Complainant resiled from his letter of resignation dated 3^rdMarch 2016 at the meeting and instead sought a further change of date of retirement to April 2016. The Complainant was clear at the end of that meeting that this was the issue being considered by the Deputy Chief executive.

The Complainants evidence was that the letter was not discussed at the meeting and that he was not allowed withdraw his letter of resignation. He confirmed in evidence that at the end of the meeting he understood that the Deputy Chief Executive was considering a request made by him at the meeting to move his retirement date to April. Taking account of all of the circumstances of this case the Court prefers the evidence of the Deputy Chief Executive in relation to what occurred at the meeting on the 6^thMarch 2016

It is settled law that a resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract (seeMillett v Shinkwin[2004] 15 ELR 319).

In this case, it is clear on the evidence that the Complainant submitted a resignation to the Respondent in writing. That resignation was expressed in terms that were unambiguous and unconditional. While the Complainant subsequently sought to withdraw his resignation, he could not, as a matter of law, do so unilaterally.

Having regard to the foregoing, the Court cannot see how as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as defined by the Act.

Determination

Having carefully considered the submissions both written and oral and the evidence given at the hearing the Court cannot find that the Complainant’s employment came to an end by way of dismissal.

Signed on behalf of the Labour Court



Louise O'Donnell
LS______________________
21 November 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.