Complainant

Respondent

Anonymised Parties

A Welder

A Manufacturing Company

Representatives

MK Solicitors

In house Legal Advisor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00024756-001

06/01/2019

The complainant submitted a claim on 6th of January 2019 under Section 8 of the Unfair Dismissals Act 1977. He claims that his employment was unlawfully terminated by the respondent following a conversation with his manager on 11th of July 2018 wherein he requested an increase in his wages, he claims that his words at the meeting may have been misinterpreted by the respondent to mean that he was resigning from his employment. The respondent disputes that there was a dismissal and submits that the complainant resigned his employment willingly and voluntarily on 11th of July 2018 giving two weeks’ notice to his manager.

The complainant submits that

On the 11th of July 2018 he had a casual conversation with his manager Mr J regarding an increase of wages, the words exchanged in the "heat of the moment" were possibly misinterpreted by Mr J to mean the complainant was resigning as and from the 27th of July 2018,

On the 16th of July 2018 he sent a medical certificate to the Company which was handed in by his brother covering the period up to 20th of July, 2018,

On the 27th of July 2018 he called into the workplace to hand in a medical certificate for the previous and following week and was met by Ms. H of HR who asked him to sign some paper work including a p45 request form. He refused to sign as he had never given notice and never had an intention to resign,

Following that meeting he sent an email Mr J stating that he did not understand why he was receiving holiday pay, being asked to sign a P45 request form,

On the 16th of August 2018 he has received his P45 in the post which was a complete shock as had have never handed in notice to terminate his employment.

The respondent submits that

The complainant was employed as a Welder under a contract of employment dated 25 September 2015.

The contract of employment provided: “You are required to give the Company two weeks’ notice of termination of your employment.”

The Employee Handbook contains the company policy on resignations and provides: Notice / Termination of Employment “If resigning your position and giving notice you may do so in writing, email, or verbal to your relevant manager."

On the morning of Wednesday 11 July 2018, the complainant informed his manager, Mr. J that he was resigning his position with Respondent with his last day of work to be Friday, 27th July 2018,

The complainant had a planned and approved one day holiday on Thursday 12th July, the day after providing his verbal resignation notice of resignation to Mr. J and did not attend work on Friday, 13th July 2018, after the Thursday holiday, It was assumed that the complainant had decided against working out his notice period, which is not unusual,

On Monday, 16th July, the complainants brother presented a sick cert on behalf of the complainant, certifying the complainant as unfit for work from 13 July to 20 July 2018 due to an unspecified medical condition or illness,

Between Thursday 12th July and Friday 27th July 2018 (a period of two weeks) the complainant did not report for work and there was no further communication whatsoever from the complainant,

On Friday 27th July 2018 the complainant appeared unannounced at the factory. This was the last working day before the annual two-week shutdown of the company for employee holidays scheduled from 27th July through Friday 10 August 2018. The complainant presented two sick certs dated 27th July but with the period of illness backdated to commence from 20th July through 10th August (the last day of the annual holidays).

A meeting was then held the same day (27th July) between the complainant and Ms B and Ms H of Company HR which was also attended by the complainant’s wife, during the meeting the Complainant reluctantly admitted he had spoken with Mr J and had indeed requested his P-45 as reported by Mr. J in his email to his email to HR of 11 July 2018.  At this point the complainant was interrupted by his wife and a conversation then ensued between him and his wife in the Lithuanian language, immediately following this conversation, the complainant’s wife stated that the complainant had not realized he asked for his P-45 and the Respondent could not let him go while he was sick,

Ms. H advised that the complainant had not been let go but that he had resigned and was replaced. The complainant’s wife stated they would need to get advice and they would come back again next week. Ms B advised another meeting would be facilitated by her next week even though the factory would be on shut down. Ms H stated that if there were openings advertised for welders in the future complainant was welcome to apply and that Respondent would look favourably on his application.

The complainant did not request or return for a second meeting in the following week instead, on 3 August 2018, he sent an email to Mr. J asking why he had been

“a) Asked to sign my P45

b) Received payment for my Holidays

c) Received my P45 today” (Attachment 9)

On 5 October 2018, Respondent received a letter from the complainants Solicitor, dated 26 September 2018 which raises for the first time the allegation that the complainants resignation on 11th July 2018 was related to a dispute over a requested pay rise and strongly implies that his resignation was in fact fabricated by the respondent in retaliation for a requested pay rise, a contention never raised by the complainant himself in any of his prior emails or in the meeting with HR on 27th July.

The respondent replied refuting the claim and stating that the complainant was not unfairly dismissed but rather knowingly and voluntarily resigned his position.

Section 1 of the Unfair Dismissals Act 1977 defines ‘dismissal’ in relation to an employee as

“(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 (regular dismissal), (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,” (constructive dismissal) or (c) which deals with the termination of fixed-term and fixed-purpose contracts and is not of relevance in the instant case.

Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

In this case it is contested as to whether the Complainant had resigned, or whether he was forced to resign and therefore was unfairly dismissed.

The respondent submits that the complainant was not unfairly dismissed or dismissed at all but that he resigned on 11th of July 2018 during a conversation with his supervisor Mr. J.  The respondent advised the hearing that the complainant resigned giving notice that he would be finishing up on the 27th of July at the start of the respondents annual two week shut down.   The respondent submits that the reason given by the complainant for his resignation was that he would be better off financially if he was not working as he had a wife who was not working and four kids and he would not have to pay his own rent if he was not working as it would be paid by Social Welfare.   Mr. J witness for the respondent advised the hearing that the complainant had worked out all of the figures in respect of the benefits he would receive if he was not working and had concluded that he would be better off.   Mr. J stated that in order to match the figures the complainant had worked out the respondent would have had to pay him almost double what he was being paid at the time.   The respondent accepted the complainants verbal resignation as such is provided for in the Company Handbook ' lf resigning your position and giving notice you may do so in writing, email, or verbal to your relevant manager’.   Mr. J stated that he did not want the complainant to leave and regarded it as a huge loss as the complainant was a good worker and had been working for the respondent for 10 years.

Witness for the respondent Mr. J stated that upon receiving the notice he contacted HR to advise them of the complainants resignation and he indicated to HR that they would need to find a replacement immediately with the intention that the replacement could be trained in by the complainant in his job prior to his cessation of employment.

The respondent HR questioned whether the reason for leaving related to money to which Mr. J replied that the complainant would be better off financially of he was not working.  

The respondent advised the hearing that the complainant had given two weeks’ notice during which they had hoped that he would train in his replacement however he did not work his notice period in the end.   The respondent stated that the complainant did not attend for work over the next two days Thursday or Friday the 12th and 13th of July and that his brother came to the respondent premises on Monday and handed in a sick cert on behalf of the complainant covering the period from Friday 13th to 20th of July 2018.   The respondent stated that it was not unusual for an employee to not attend for work during their notice period.   The respondent stated that the handing in of a sick cert during the notice period would ensure that the complainant would continue to accrue holiday pay for that time period.   The respondent advised the hearing that the complainant attended at the respondents premises on the 27th of July to hand in a sick cert and that a meeting took place that day with Ms. B and Ms. H of HR. The complainants wife was also in attendance as he was asked if he wanted her to accompany him to the meeting which he did. The respondent stated that the complainant at this meeting had initially denied that he had resigned on the 11th of July but then stated that he had resigned but had not meant it. The respondent advised the complainant that his resignation had been accepted and that they had recruited a replacement for his job but added that he was welcome to apply for other upcoming positions and that his application would be looked upon favourably.

The respondent advised the hearing that the complainants wife then stated that they would have to seek advice in relation to the matter and Ms. B told them that she would be available to meet with them the following week if they so wished even though the company was on its two-week shutdown. The respondent stated that they did not hear back from the complainant during this period in relation to the matter and the next communication was an email from the compliant in August 2018 asking why he had received his p45 and holiday pay.   The respondent replied to this on 20th of August 2018 and then heard no more until October 2018 when a letter was received from the complainants solicitor claiming that the complainant had been unfairly dismissed.  

The complainant denies that a resignation took place but submits that the conversation of the 11th of July with Mr. J was a casual conversation in which the complainant had requested an increase of his wages due to the fact that he had been employed by the company for 10 years and had successfully completed and was recognised for being Quality Aware.

The complainant submits that his words exchanged in the "heat of the moment" were possibly misinterpreted by Mr J to mean that he was resigning, the complainant submits that this may be due to his own limited proficiency in English.

The complainant advised the hearing that he went to his doctor the following day the 12th of July to carry out a blood test for his epilepsy and following that visit he had an epileptic seizure that night.   He stated that he rang Mr. J that evening about 8 pm to say that he did not feel well and would attend his doctor again the next day.     The complainant stated that he reattended his doctor on the 13th of July 2018 and was certified as unfit to work from that day for the next week.     The complainant stated that on the 16th of July 2018 he sent in his medical certificate to the Company which was handed into the Company by his brother.

The complainant advised the hearing that he had called to the respondent workplace on the 27th of July to hand in his medical certificate for the previous and following week and was met by Ms. H of HR who asked him to sign some paperwork but as he did not understand it was agreed that he could bring his wife to the meeting.   The complainant advised the hearing that Ms. H requested that he sign his P45 request form at that meeting.   He stated that he refused to sign the p45 form as he had not given in his notice and stated that he had confirmed to Ms. H that he never had an intention to resign.

The complainant told the hearing that the respondent at the meeting stated that he had resigned on the 11th of July and that his wife told Ms. H at that meeting that his words may have been miss-interpreted. The complainant when questioned at the hearing stated that he had a few times said that he would resign if proper pay was not paid to him.   The complainant at the hearing when questioned about the discussion where Mr. J alleges the complainant told him that he would be better off on Social Welfare, answered that he meant that his salary was too low.  

Following that meeting the complainant sent an email to Mr J stating that he did not understand why he was receiving holiday pay and why he was asked to sign his P45 request form. The complainant in that email stated he never submitted the notice of termination of employment.

The complainant told the hearing that he received no reply to that email and on 3rd of August he sent another email to Mr J advising that he was still under Doctor's instructions not to work and asking for an explanation as to why he was requested to sign his P45 request form and why he was in receipt of Holiday Pay.   Witness for the respondent Mr. J advised the hearing that this email was sent to him during the company’s official two week shut down. M. J stated that he did not see the email until two weeks later when he returned to work and that he then forwarded the email to be dealt with by HR.

The complainant stated that he received his P45 in the post on 16th of August 2018 which was a complete shock to him as had never handed in notice to terminate his employment. The complainant stated that he then emailed the respondent asking why he had received his p45.   Ms. H of the respondent HR replied to this email stating that HR had been advised by Mr. J by email on the 11th of July, of the complainants resignation and instructed HR to recruit a replacement asap. The email went on to state that at no point within the 2 weeks did the complainant retract his notice and at the meeting on 27th of July the complainant confirmed that he had given notice to Mr. J.

The respondent in this case submits that there was no dismissal unfair or otherwise as the complainant willingly resigned his employment. The respondent stated that it was not happy to see him go and that he was a great loss to the company as he was a good worker, he had worked there for 10 years and had been trained in by them on site to do the job.

The letter from the complainant’s solicitor dated 26th of September 2018 and received in October claims that the complainants employment was unlawfully terminated while he was certified as unfit to attend work.

This letter acknowledges that a conversation took place between the complainant and Mr. J on the 11th of July wherein the complainant had requested an increase in his wages, it goes on to state that the complainants words may have been misinterpreted to mean that he was intending to resign and submits that this alleged resignation took the form of a “heat of the moment” conversation.   This letter received in October 2018 also requested the respondent to confirm that the complainant could return to work.

The Complainant in this case denies that he tendered his resignation but states that if the ‘heat of the moment’ exchange was misinterpreted to mean he was resigning it is clear that the subsequent action of submitting sick certificates lends credence to the fact that unaware that he had resigned. The complainant submits that ordinarily if an employee resigns they cannot successfully bring an Unfair dismissal claim however there are exceptions to this rule and one of the exceptions is if the employee resigns in ‘the heat of the moment’ during or shortly after an argument with management or colleagues and in such circumstances a ‘reasonable period of time’ should be allowed to lapse to ensure that the resignation is fully intended. The complainant submits that it is clear from caselaw that employee may withdraw the notice of resignation when ‘special circumstances’ exist in relation to the context in which decision to resign was taken and that it is important that an employer deals with such resignations carefully as failure to do so may lead to an employee operating under misguided impression that his or her employment is still intact despite a hastily made resignation. The complainant advised the hearing that when considering what an employee may have meant here when they declare ‘I quit’ it will be necessary to consider all the circumstances and if there is still ambiguity a tribunal would look at what a reasonable employer would’ve understood the words to mean in the circumstances.

The complainant in advancing this case relies on the following caselaw in support of his arguments, the UK case of Kwik Fit Ltd versus Lineham 1992 IRLR156, The Labour Court case of Charles Shinkwin versus Donna Millett ED/03/33, UK case of Willoughby versus CF capital EWCA Civ115 Sothern Vs Charlesly & Co 18981 IRLR278.

Having considered the arguments advanced and caselaw cited by the complainant I note that the respondent in this case submits that there was no argument or disagreement which would support the assertion that the complainant resigned in the heat of the moment. I am satisfied from the evidence adduced that here has been no evidence adduced to support an assertion that here was an argument between the complainant and Mr. J on 11th of July 2018.

In addition, the respondent has submitted that the complainant resigned giving two weeks’ notice and asserting that he would be better off financially if he was not working. The complainant assert that he had during this conversation requested an increase in his wages and was promised that he would be paid a fair rate. Although the parties account of the conversation differs, neither account supports an assertion that the resignation to the form of an “I quit” type of resignation or one which could be said to have been a “heat of the moment” resignation following a disagreement or argument and where a ‘cooling off period’ needed to be considered. In addition, there has been no assertion made to suggest that the complainant sought to retract or withdraw his resignation within ‘a reasonable time’ apart from the contention made two weeks later at the meeting of 27th of July where he asserted that his words may have been misinterpreted by Mr. J.

I note that the respondent in this case stated that the complainant was a good worker and that he was a great loss to the company. In support of this neither party provided any evidence to suggest that the respondent had any reason for wanting the complainant to resign or that the respondent had any intention of dismissing the complainant or forcing him to resign. In fact, the email from Mr. J to HR on 11th of July speaks of what a loss it is to have the complainant resign. The complainant in this case has not at any stage sought to assert that he was forced to resign.

I note that the complainant in this case has sought to rely on the fact that he submitted a medical cert during his notice period, this is in support of the assertion that he was merely on sick leave and had not resigned.   I am not satisfied that a failure to work his notice period and the action of submitting a sick cert for a part of that period could be taken as a clear indication to the respondent that the complainant was retracting or rescinding his resignation.

The complainant asserts that there should have been a ‘cooling off period’ within which the complainant should be allowed to rescind or retract his resignation.   If the circumstances were such that the complainant had felt forced to resign after an argument with his manager or colleague and following that the complainant had sought to rescind or retract his resignation within a couple of days, I could see the merit in this argument but there has been no evidence adduced to suggest that that happened in this case.   While it may be the case that he complainant later decided that he no longer wanted to resign he did not make this clear to the respondent and in fact did not make any attempt to clarify this until the 27th of July 2018 over two weeks after submitting his resignation when he sought to assert that his swords had been misinterpreted by Mr. J and at which point the respondent stated that it had already replaced the complainant.  

The respondent also advised the complainant that he could apply for future vacancies and stated that it would look upon any application by him favourably but when it advertised such vacancies in August 2018 the complainant failed to apply for the jobs.   This would seem at odds with the complainants assertion that he wanted his job back.

The complainant submits that the submission of a sick cert during his notice period amounted to an indication that he had not resigned his position though I cannot see how a respondent should be expected to assume that a complainant who submits a sick cert stating that he is unfit to work   during his notice period amounts to an indication that he is seeking to withdraw his resignation.

The complainant at the hearing seemed unsure and unclear about the details of the resignation meeting giving varying answers in respect of whether or not he had said that he would be better off on Social Welfare than working while Mr. J on the other hand appeared to have a very clear and concise memory of the discussion which took place and the reasons advanced by the complainant for resigning his employment.   Given that both parties agree that the complainant was a good worker who had a good working relationship with his manager Mr. J, I can see no reason and have not been presented with any reason as to why Mr. J would deliberately misinterpret the complainant intentions with respect to his resignation and then have to look for a replacement for him given that he had worked there for 10 years. No motive or reasoning has been advanced to suggest that Mr. J wanted the complainant out of the job.   In considering this matter I note the following:

The respondent had showed no intention of seeking to dismiss the complainant,

The respondent held complainant in high regard, and

The respondent had no reason to believe the complainant had changed his mind about his resignation.

I therefore conclude that the Complainant willingly and voluntarily resigned without any pressure or coercion from the respondent and he did not seek to formally rescind or retract that resignation within a reasonable timeframe only asserting after two weeks that his words may have been misinterpreted.

In all of the circumstances I most conclude that there was no dismissal and that the complainant voluntarily terminated his own employment.     Accordingly, I do not uphold this complaint.

In all of the circumstances I most conclude that there was no dismissal and that the complainant voluntarily terminated his own employment.    Accordingly, I do not uphold this complaint.