Complainant

Respondent

Parties

Suzanne  Lawlor

GS Associates Ltd

Representatives

  self

Sinead Finnerty Peninsula

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-00044649-002

15/06/2021

The facts of this case relate to whether the complainant informed her supervisor that she wished to resign arising from a medical condition. The complainant maintained that on the 17th of May 2021 she told her supervisor that she could not return to work pending medical results that would inform her decision. Those medical results were received some days later and based on these; the complainant had made up her mind not to return to work. However, on the 17th of May she had not decided to leave the company.

The supervisor maintained that she had no authority to terminate the employee’s contract. However, she was adamant that the complainant told her that she would not be coming back to work. While the conversation between both was on the phone; the supervisor’s account was corroborated partially by another employee who heard the supervisor talking to the employee and she remembered that resignation was the context of the call. However, that does not negate what the complainant stated was a conversation about returning to work and she did not resign.

Both parties prior to this recent dispute accepted that the working relationship between them was good and amicable.

The supervisor misinterpreted what the complainant had intended. While there was a medical issue that may affect her ability to return to work; on the day in question no such decision had been made. The complainant was waiting on medical results to assist with a decision and only then would she have been able to make up her mind to return to work or to leave work.

The supervisor remembered the call between her and the complainant and stated that she clearly was told that the complainant wished to resign. There was no question of the complainant’s contract being terminated because she was certified sick.

When the respondent payroll department contacted the complainant about her entitlements arising from her leaving the company she was very upset.

The complainant referred her grievance to the Workplace Relations Commission within days of her employment ending. 

The complainant was taken off payroll on the 11th of June 2021.

While the supervisor wished to meet the employee; the conversation about coming back to work or not was arranged via text message and then in place of a meeting a phone call between them took place for a brief period. It is highly probable that the fact that the parties did not meet face to face contributed to confusion and misinterpretation.

While the supervisor relied on a contemporaneous note concerning the phone call, that note was dated the 30th of June 2021. This record is therefore of little value as several weeks had past since it was written.

Another work colleague did state that she overheard the phone conversation and while not a party to the call, heard the supervisor. She corroborated what the supervisor had said that the conversation was about resignation; however, this was only a partially heard conversation and the weight that can be given to it is limited.  

The supervisor was shocked when she was informed that the employee had made a complainant to the Workplace Relations Commission about being unfairly dismissed.

The employee believed that her supervisor told her that she needed reliable staff and would have to let her go.

The supervisor stated that the employee didn’t know when she was likely to be back to work and, on that basis, she should go and find someone else to do her work and took this as a resignation.

The fact is the employee can’t return to work and several days later decided based on her medical condition not to return to work. However, she was very upset at what she perceived to be heavy handedness. Yet up to this point there had never been any serious dispute between the parties and the relationship between the employer and the employee was good.

The fact of dismissal is in dispute.

This is a very difficult case concerning two work colleagues who had worked together on good terms.

The fact is circumstantial matters contributed to confusion between the employee and her supervisor.

Under oath the employee accepted that she had been treated well by her employer.

The employee when asked at the hearing when she could have returned to work; stated she had decided not to; based on medical advice and concern by her family that her condition required rest.

Section 1 of the Unfair Dismissals Act 1977 as amended defines dismissal as:

“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;

The Employee alleged that her contract was terminated; however, that fact is in dispute.

Redmond on Dismissal Law 3rd Ed, at chapter 22 states:

Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude the employee has resigned. The contract is terminated in accordance with its terms and as there is no repudiation, acceptance is not required by the employer. However, context is everything. A resignation should not be taken at face value where in the circumstances there were heated exchanges 28 or where the employee was unwell at the time. The intellectual make-up of the employee may also be relevant.

On the facts the employee was unwell. It is also clear that she couldn’t return to work and some days later had made her mind up to leave the company purely based on medical circumstances. This case has been brought to the Workplace Relations Commission most likely because the employee felt aggrieved at how her employment ended. However, it was not the intention of the company to terminate her contract as they genuinely believed that she had resigned.

In this case as the fact of dismissal is in dispute; the burden falls on the employee to present a case that requires the employer to rebut the allegation. The employer has corroborated a verbal phone conversation between the employee and her supervisor that supported the company’s position that the employee resigned; although, it only related to what the supervisor said and must have limited evidential weight as what was heard was only one side of a conversation. The employee was not able to return to work and on the facts, it is highly probable that on the day of the phone call she had made up her mind not to return to work. On the balance of probabilities, I find that the employee was not unfairly dismissed and did inform her supervisor that she was unlikely to return to work. That subsequently was the case. In these circumstances I determine that the employee has not raised the presumption of unfairness that is required to be rebutted by the employer. The circumstantial evidence relating to her medical condition; her decision not to return to work some days later and what the supervisor stated under oath that was partially corroborated by another employee, is more probative of the company’s position that the employee had resigned.  I determine that the employee was not unfairly dismissed.

In this case as the fact of dismissal is in dispute; the burden falls on the employee to present a case that required the employer to rebut the allegation. The employer corroborated a verbal phone conversation between the employee and her supervisor that supported the company’s position that the employee resigned; although, it only related to what the supervisor said. The employee was not able to return to work and on the facts, it is highly probable that on the day of the phone call she had made up her mind not to return to work. On the balance of probabilities, I find that the employee was not unfairly dismissed and did inform her supervisor that she was unlikely to return to work. That subsequently was the case based on medical grounds and the employee stated within days of the phone call that she had decided to voluntarily leave the company. In these circumstances I determine that the employee has not raised the presumption of unfairness that is required to be rebutted by the employer. The circumstantial evidence relating to her medical condition; her decision not to return to work some days later and what the supervisor stated under oath (that was partially corroborated by another employee), is more probative of the company’s position that the employee had resigned. Having regard to all the circumstances of this case, the employee has not presented a factual case that she was unfairly dismissed as the facts as detailed are more probative of an intention to resign.  I determine that the employee was not unfairly dismissed.

Resignation-Unfair Dismissal