Complainant

Respondent

Anonymised Parties

A Care Worker

A Care Facility

Representatives

John Wilde Crosbie B.L. instructed by Doyle & Company Solicitors

Maeve Cox B.L.

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026240-001

13/02/2019

The respondent operates residential and social care services.

Two of the respondent‘s management team met the complainant on October 11^th 2018 to discuss an issue raised buy a colleague.

Before the meeting got properly underway, the complainant stated in an exasperated fashion that he ‘was done’, and that he did not feel that he was up to the standard for the role. He spoke about looking for alternative employment and finding something closer to home and resigned from his position.

He thanked one of the managers present for her support and told her she could have done no more for him.

When asked if there was anything else they could do for him he indicated that there was not and says, on a number of occasions that he had to do what was right for himself, using his own name for emphasis.

The matter was discussed for some time, and the managers present suggested a break and then resuming, but he expressed relief at having resigned and stated that he was ‘finished with the job’.

The resignation was unambiguous, and the respondent was left in no doubt that the complainant had resigned.

The complainant spoke the following morning with one of those present at the meeting and he appeared to be in good form.

He then telephoned on October 14^th to say he would not be attending for work on the following day and told a co-worker that he ‘just wasn’t coming in’. In a second communication the following day he stated that he was unwell.

There was further meeting on October 25^th with those who had been at the October 11^th meeting I attendance. In between the two meetings the complainant had made no attempt to rescind his resignation, nor did he indicate that he was considering it.

However in the course of the meeting he stated that he had changed his mind, although he told the managers present that he had been looking for work in the meantime. He requested a reference and a further meeting was arranged on November 5^th to finalise the mechanics of his departure and he was asked to bring a resignation letter for the respondent ‘s files.

One of those present at the meeting gave direct evidence that the complainant had confirmed that he would bring in the letter of resignation.

The meeting scheduled for November 5^th was deferred to the 8^th and was attended by a senior manager who had not previously attended.

At this meeting the complainant said that he did not want to leave and that he wanted to rescind his resignation.

The respondent’s position was that he had unequivocally resigned on October 11^th and that in order to preserve the quality of its service delivery it had already moved to fill the vacancy.

The meeting adjourned and reconvened the following day and the complainant attended accompanied by his partner. He repeated his desire to remain but accepted his understanding and confirmation that he had resigned,

It was agreed to continue payment of wages to the complainant up to November 30^th. He asked for a reference and requested a letter for purposes of an application for social welfare which would state that the respondent had terminated his employment. This was furnished on November 13^th.

When the complainant made a reference to having been dismissed in a letter to the respondent on November 19^th this came as a complete shock, having operated on the basis that the complainant had resigned and had been actively looking for work in the interim.

The respondent repeats that the complainant was not dismissed, and it applied no pressure on him to resign; his resignation was unequivocal.

The complainant gave direct evidence. He stated that at no stage had he resigned.

At the meeting on October 11^th he had been presented with a list of issues and he accepts that he said ‘I’m done with all this’ but this related to the raising of the issues. He went on to say to the managers present that if they were not happy with him he would have to ‘consider my options’.

He did say that he was glad he was getting this off his chest but did not intend this to convey and intention to resign. He accepted (under cross examination) that he did make a reference to getting something nearer home. He confirmed that he had been actively looking for work.

He does not remember saying at the October 25^th meeting that he had had a change of heart and his request for a reference was conditional and was made in the event that he might resign, not that he had done so.

He also does not recall being told that there would be a further meeting to discuss the mechanisms related to his departure.

At the outset, it is necessary to consider what happened at the meeting on October 11^th and the conflicting versions of what was said, or perhaps the interpretation of what was said.

From the evidence it is clear that the two managers approached the complainant to discuss a particular matter (of some significance in the context of the respondent‘s operations).

It seems that even before the issue had been properly ventilated, if at all, the complainant reacted badly, and somewhat emotionally, and indicated very clearly that he was in no mood to discuss the issue, hence the comment ‘I’m done with this’, (respondent version) or ‘I’m done with all this’ (his own version).

He agreed that he said ‘if you’re not happy I’ll have to look at [or, consider] my options’.

On the other hand, the evidence of the two managers was crystal clear. They were respectively the Service Manager (Witness A) and the Centre Manager (Witness B) in the facility which is a publicly funded service for young people with special needs.

Witness A (the Service Manager) said that the complainant dismissively waved his had at the very opening of the meeting on October 11^th and followed this with the ‘I’m done’ comment. She was very clear that he said he was resigning and that he was finished with the job. At the end of the meeting she gave him a hug and told him that if he needed anything he should ask.

She was equally clear that at the October 25^th meeting he said that he had changed his mind and that at the meeting on the 11^th he had spoken in anger and frustration. However, she also stated that he agreed at this meeting to submit the letter of resignation.

Witness B said that the complainant had made repeated references to being ‘done’.

Both these witnesses were credible, and their evidence was persuasive. The complainant tended to have selective recall in relation to some matters and certainly in relation to any aspect of the respondent’s evidence which unsettled his account of how matters unfolded. (For example, he did not remember being told to bring the letter of resignation, or that he said he had a change of heart, and he claimed that the discussion of a reference was ‘conditional’).

His assertion that the ‘I’m done with this’ comment related only to the raising of the specific issue also lacks credibility. In the first place witness evidence was that the matter had not even been raised when the complainant reacted. More significantly, the nature of the complaint being raised, or about to be raised; consumption of alcohol by a young service user was no petty matter to be dismissed so lightly by the complainant.

His reluctance to hear anything on the subject is not compatible with his obligations as an employee.

Finally, of course, this comment was not the only one on which the respondent formed its conclusion that the complainant intended to resign. The evidence was clearly that the sum of his comments was a clear intention to resign, there was no ambiguity. The accumulation of the evidence (including the evidence of the complainant, who discussed returning to a previous job, moving nearer home, being ‘done’, discussing a job reference) leaves little room for doubt in that regard.

The complainant also stated that he was considering other options, such as a reduced working week, stepping back to a lower role or taking other roles.

I have no doubt that the evidence of the respondent witnesses (A and B) is a reliable account of what happened at the October 11^th meeting and that the complainant clearly gave them to understand that he was resigning from his position. All of the evidence, including some of that of the complainant supports this view.

However, the matter does not end there.

In the first place, even taking my finding that the complainant clearly indicated to his employer that he was leaving is this sufficient to represent a final and irreversible act of resignation?

The respondent says that a number of efforts were made to get the complainant to formalise his comments on October 11^th into a letter of resignation and he did not do so, despite (according to their evidence) his having agreed to do so.

His reason in evidence that he had not forgotten to submit the letter of resignation but he did not do so because he ‘had no intention of resigning’ is not convincing.

The respondent was remiss in not seeking confirmation of the resignation at the earliest stage, and an obligation fell on it to do so, or to otherwise confirm the complainant’s intentions.

Admittedly, the complainant went off sick for five days from October 15^th so the window of opportunity was a short one and the evidence was that he was asked for it at the meeting on the 25^th, which, while exactly two weeks after the first meeting, allowing for the complainant’s sick leave and time off this is not a significant gap, and probably no more than three or four working days.

On the other hand, the complainant made no effort to communicate with his employer regarding what had transpired at the meeting. I have no doubt at all that he understood the import of what he had said and indicated at that meeting.

He opted to deny or at best fudge what happened when it was still open to him to withdraw his resignation.

It is well established that there is room for reconsideration of ‘heat of the moment’ resignation, and that an employee has the right to have such a resignation reconsidered. There are some facts in the case pointing to a justification for doing so.

For example, the complainant had clearly been in an agitated state at the beginning of the first meeting at least, although it continued to the point where one witness said she gave the complainant a hug at the end of the meeting. This suggests that it ended amicably, and with some shared understanding of what had just happened.

The respondent was clearly left in no doubt as to the complainant’s intentions, and given various comments made by the complainant about his sense of relief having made the announcement did not believe that the resignation was one made ‘in the heat of the moment’.

The respondent relied heavily on the obligation that is placed on it by its oversight and funding body to move quickly to fill vacancies arising and to avoid adverse impact on levels of service. To this end it placed an advertisement seeking a replacement on October 23^rd.

This can be looked at two ways; on the one hand it tends to underscore the respondent’s version of the October 11^th meeting (which I have accepted) On the other hand, the mere placing of the advertisement was no obstacle to accommodating a change of heart on the part of the complainant if it had wished to do so.

But the question then is whether its failure to do so, on either October 25^th or November 8^th and 9^th turns its actions into an act of unfair dismissal, or whether the force of the initial resignation carries it over this line.

It might have done more to confirm the complainant’s actual intentions before proceeding to the re-advertisement of the position. It submitted that it had no doubt as to the position but failure to have this confirmed in writing is what has brought the case to where it is.

The events at the meeting on November 8^th and 9^th are particularly confusing. According to the respondent at the first meeting the complainant said that he did not want to leave, and at the second meeting the complainant  ‘expressed both his understanding and his confirmation that he had resigned’ and ‘took no issue with the facts that had been discussed in relation to his resignation’.

He again requested a reference but ‘expressed [that] he did not now wish to leave’.

There is a mixture of, at a minimum, regret here and perhaps more, but no strong resistance as the complainant appears to acquiesce in the termination, requesting the reference and a letter for the Department of Social Protection.

But to summarise, I find that the complainant gave clear oral notice of his intention to resign on October 11^th.

He did not at any stage move to rescind that resignation until October 25th, although he now claims that, strictly speaking he was not actually rescinding it, as he had never resigned in the first place, but he was stating that he was not resigning.

The complainant’s case might have been stronger had he actually relied on the ‘change of heart’ defence, although his failure to communicate this in the course of the passage of two weeks up to October 25^th, and a further two weeks to November 8^th/9th would not help that argument.

As his insistence that he never resigned at the October 11^th meeting is totally lacking in credibility then paradoxically the change of heart argument might have done him some good. It would have been perfectly open to him to make that case here.

There was further evidence in relation to the final two meetings on November 8^th and 9^th that at the former the complainant did not dispute that he had resigned.

In my view the respondent escapes a finding of unfair dismissal arising from its failure to get written confirmation of the complainant’s intentions. It is lucky that the oral and circumstantial evidence relating to the October 11^th and later meetings is so strong and that the complainant’s evidence was so weak and inconsistent.

That case is further buttressed by the fact that there was no hint of any intention to terminate the complainant’s employment up until he raised the matter, or any suggestion that this was a device to secure a termination that it wished to achieve anyway.

Therefore, the respondent’s failure to get the written confirmation of the complainant’s stated intentions at the first meeting is insufficient, taking all the other facts in the case, to render its actions an unfair dismissal.

The complaint fails.

For the reasons set out above I do not uphold complaint CA-00026240-001 and it is dismissed.

Resignation, Unfair dismissal.