ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015799
Parties:
| Complainant | Respondent |
Parties | Eamon O'Malley | Allergan Pharmaceuticals Ireland |
Representatives | O'Dwyer Solicitors | MacSweeney & Company Solicitors |
Complaint:
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-00020517-001 | 12/07/2018 |
Date of Adjudication Hearing: 20/09/2019 30/04/21, 13/12/2021
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The hearing of 20/09/2019 was heard in person but was adjourned. The hearing of 30/04/2021, was adjourned pending legislation to allow for evidence under oath or affirmation and was heard remotely and the hearing of 13/12/21 was also heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
Parties were advised for hearing date 13/12/21 that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public and that this decision would not be anonymised and there was no objection to same.
Parties were also advised that for hearing date 13/12/21, an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination is permitted. Submissions were received and exchanged. Where there was serious and direct conflict of evidence, evidence was taken under oath from the Complainant and under oath from Camillus Comaskey Production Operator & SIPTU representative, Joseph Fergus, Warehouse Operator & former Shop Steward.
Background:
A Summary of events that led to the submission of the complaint are as follows:
12th April 2018 it was reported by an employee Mr A that the complainant damaged a door of the respondent. 19th April 2018 an investigative meeting took place attended by the complainant and Mr B, Manager and Mr C, HR Business Partner. 25th April 2018 a disciplinary meeting took place attended by the complainant and Mr B, Manager and Mr C, HR Business Partner. 26th April 2018 the complainant was advised by letter that he would receive a final written warning and be moved to a different area with no loss in pay. 28th April 2018 the complainant appealed the final written warning to Mr D, Director. 11th May 2018 the complainant was suspended with pay pending an investigation into allegations of intimidation by trying to prevent the course of original investigation. 14th June 2018 a meeting was held with the complainant, his representative Mr Fergus and Mr Comaskey and the Director Mr D for the respondent.
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Summary of Complainant’s Case:
The complainant commenced employment on 21st September 2010 and was unfairly dismissed on 14 June 2018. It was submitted that there is a recognised obligation to conduct any investigation pursuant to fair procedures and natural justice and that the respondent failed in this regard. The complainant expressed surprise that Mr D choose not to give evidence at the hearing despite advising that he would do so at earlier hearings.
Mr A made a complaint that the complainant damaged a door and the complainant was investigated as a result of that complaint. The complainant had no history of any such behaviour and was very taken aback by the serious allegations. The complainant denied any wrongdoing and denied causing any damage to the door. The complainant submitted that if there was any damage to the door, then it was not of the complainant’s doing. The solicitor for the complainant sought to inspect the door but the request was denied. Evidence of actual damage to the door was never put to the complainant and makes the warning that the complainant received, unsafe and entirely flawed.
A flawed disciplinary process followed during which only two independent witnesses were interviewed by the respondent and despite the respondent’s failure to establish any wrongdoing, the respondent proceeded to issue the complainant with a Final Written Warning dated 26th April 2018. The complainant appealed this in a letter dated 28th April 2018 to Mr D and the complainant set out that he did not damage the door; that 7 other employees walked through the door at the time; that a full investigation was not carried out and there were other witnesses willing to speak to HR about the incident. The complainant had asked, as was his right, for other fellow employees to record their observations and the complainant used a written record to assist in defending himself in a failed investigation which failed the complainant. The respondent further failed the complainant as he was not allowed the opportunity to examine and cross examine witnesses which was the complainant’s right.
Mr D who was conducting the appeals process of the final written warning, took the view that the complainant had engaged in intimidation of employees. It was submitted that the question that Mr D put to the employees he interviewed was itself leading and suggestive and the entire conduct of this investigation was unsafe and gave no right to cross examination. Mr D put the question to employees “You signed a blank piece of paper for EOM, Why?” andthe complainant submitted that this question was leading, suggestive and compelled an answer averse to the complainant. The complainant was not interviewed as part of this investigation that Mr D conducted. Thereafter, Mr D met the complainant on his own and told the complainant to do the honourable thing and resign and was told that if he didn’t agree to resign then he would be dismissed. The efficacy and integrity of the investigation process and disciplinary process was set at nought by the actions of the respondent. The complainant was unduly influenced, to tender his resignation which had no validity in law. On 9th July 2018 the complainant was asked to confirm the validity of the resignation and the complainant’s solicitor responded calling for restoration of the complainant’s employment as was his entitlement dated 10th July 2018. It was clear that a resignation is only valid and effective where it is entered into willingly and without duress. The complainant had not validly tendered his resignation.
It was submitted that the complainant was unfairly dismissed as the resignation was to be confirmed in writing, the complainant did not confirm the resignation in writing and the respondent proceeded with the resignation. It was submitted that Mr D jumped the gun and did not process the allegation of intimidation appropriately and that Mr D took a prima-facia allegation and put pressure on the complainant during an unrelated matter. The complainant submitted that in the heat of the moment the complainant resigned but had not really resigned as the letter of resignation was not processed. It was submitted that the resignation was not effective and that it was left open.
Evidence from the complainant included that he enjoyed his work, never had any disciplinary issues and had a good relationship with his colleagues. He said there was an allegation from Mr A that he broke a door in the sterile area by using force with his shoulder and the complainant told Mr A to Fuck off as he did not have a good relationship with Mr A. It was his evidence that he did not break the door and somebody checked the humidity in the room and it was fine. He said when he saw the door opened he tried to adjust the arm of the door to fix it by standing on a bin. The complainant said he was brought to an investigative meeting on 19th April and was questioned about the door and received a final written warning. The complainant said he asked for photos and documentation of the door but never received them and the complainant was never given the right to cross examine witnesses. The complainant said he appealed the decision of the final written warning to Mr D Director. He said that some of his colleagues talked to him about the door and said that the door had been working perfectly fine when the complainant was there and these employees signed their signatures to paper confirming this.
The complainant denied that he coerced anyone or intimidated or threatened anyone to sign their signatures. The complainant said that at the appeals meeting Mr D told him it was either dismissal or resignation as he had intimidated people. The complainant said he talked to his union representatives, and they said resignation was the only way out of it. He said he choose to resign as if he did not resign then it would be a dismissal as the complainant was on a final written warning. The complainant said Mr D told him that he would have to put it in writing and the complainant asked what to put down and was told he should put it in his own words. The complainant said he told the respondent that he would drop the keys and letter of resignation in but did not as felt under pressure. His decision to resign was a heat of the moment decision made under pressure and the complainant did not want to do it. On 9th July 2018 when the respondent said he resigned, the complainant contacted his solicitor. The complainant believed a resignation had to be in writing and he did not give his in writing.
Under cross examination the complainant confirmed that he was not dismissed as a result of the incident with the door and that he received a final written warning and was moved to a different area in the same grade as he had before the incident but that he did not think it was a balanced response. He confirmed that he received advice from experienced union representatives and that he sought their advice. He agreed that allegations of coercion was a serious matter, that Mr D discussed witness coercion and that his union representative called a time out at that stage. The complainant confirmed that Mr Comaskey gave him options and there were discussions about service pay and a reference and that the complainant said he was going to resign. The complainant said that he was not intending to resign at the meeting but was put under pressure in a room with 2 union representatives and made a decision of resignation under duress. The complainant said that he was advised that Mr D was satisfied that the allegations could be proven.
The complainant gave evidence that he had made efforts to secure employment and no loss was incurred. Under cross examination he said that he applied for a job in October 2018 and could not recall what jobs he applied for after he left the respondent.
Case law cited included Lyons v Longford & Westmeath Education and Training Board, May v Mogg Ltd UDD805/2000, Millett v Shinkwin DEE 4/2004. |
Summary of Respondent’s Case:
The respondent submitted that the complainant was not unfairly dismissed, did in fact resign his position and at the time of his resignation was earning €33,766.20 gross per annum. It was submitted that the Respondent Company is a multi-national pharmaceutical company, employing some 1,400. The respondent submitted that the complainant set out on that his employment ended 14/06/2018 and that the complainant states “date Notice received” as 09/07/2018 on the Complaint Form.
It was denied that the complainant was forced to resign and it was submitted that the complainant’s form said that the complainant claims he “never expressed a wish to resign”, whereas in his representative’s correspondence, submit that he was “told to resign or be fired”. It is unclear whether the complainant’s case involves an admission that the complainant did in fact resign, but that he did so where objective facts did not support that request and/or he did so under (presumably unwarranted) pressure and/or was ill-informed in so doing. Nonetheless, the case made out in the Complaint Form is that the Complainant was dismissed simpliciter, and not that he was constructively dismissed, as might be inferred from his representative’s correspondence.
The Respondent contends that the Complainant did in fact tender his resignation in a voluntary fashion and critically, following consultation with and advice from his trade union representatives. Disciplinary proceedings arose from an incident on 12th April 2018 whereby the complainant received a final written warning. On 19th April 2018, an investigation meeting took place and the Complainant was accompanied to the meeting by his trade union representative, Joe Fergus, a long standing shop steward within the company. At the meeting, the Complainant denied damaging or forcing open a door, but admitted to “leaning against it”. The functioning of an environmentally controlled-room interlock is that only one door can open at a time. This is to avoid “particulate” getting into the environment. it is essential that controls are rigidly adhered to, to avoid particulate contamination, given the nature of the respondent’s product.
The complainant was challenged on the damage to the door by Mr A and the Complainant admits that he immediately responded by telling Mr. A “to fuck off”. The complainant claimed that the door had been working fine when he had exited it earlier, with colleagues and Mr A’s version of events was corroborated by another employee. The Complainant was invited to a disciplinary hearing by letter dated 18th April 2018 and this took place on 25th April 2018, when the Complainant attended accompanied by his trade union representative, Joe Fergus. Arising from the hearing, it was determined: “During the investigation and in the subsequent disciplinary meeting you admitted to leaning against the interlocked door but believed you did not break the door. However, following the investigation it is the disciplinary panel’s view that you did in fact break the interlocked door by using excessive force in order to try and open it.”
A final written warning was issued on 26th April and the Complainant was informed that he would be moved to a different area of the business, but without any diminution in his grade or pay. He was afforded an opportunity to appeal the determination to Mr D, Director which he did. While it is accepted that the door was not significantly damaged, there was a clear breach of procedure by the Complainant and the door had been unnecessarily and wantonly abused, which had the potential to compromise a controlled room environment. The disciplinary sanction was balanced, proportionate and fair, in the circumstances.
In his appeal the Complainant maintained that he did not damage the door. He further claimed to have a number of supportive witnesses, to corroborate his story. Mr. D met with the Complainant, Mr. Fergus and Mr. Comaskey and the complainant subsequently tendered a blank page containing the signatures of those seven colleagues and confirmed that the named people had witnessed the incident and/or would support his appeal.
In the intervening period, information had been tendered to Mr. D confidentially, that the Complainant was attempting to coerce various colleagues into making supportive statements and as such, to avoid potential contamination of the process, Mr D felt it necessary to suspend the Complainant, pending a separate investigation into those issues. Mr. D expressed concern about the complainant’s behaviour and explained why he had taken the step to suspend him owing to allegations “into intimidation by trying to preventing (sic) the course of the original investigation” and this required further investigation. In the course of the appeal of the disciplinary sanction and as part of the further enquiries necessitated, Mr. D arranged to interview the “witnesses” identified by the Complainant, none of whom supported the Complainant’s appeal and all of whom ultimately confirmed that the Complainant had contacted them and tried to pressurize them into tendering false evidence. There were various informal contacts between the Complainant’s trade union representatives and Mr. D in the intervening period, in the course of which the disclosures by the witnesses were discussed. This is a normal and accepted part of the industrial relations process, within the Respondent’s plant.
The parties met on 14th June 2018 and the Complainant was presented with what had arisen from Mr D’s meetings with the identified witnesses. He confirmed that the witnesses had denied witnessing the subject incident and had disclosed that the Complainant had actually attempted to pressurize them into falsely and dishonestly supporting his story. The complainant declined to comment on this. The complainant was advised of the seriousness of this matter and that it would necessitate separate disciplinary proceedings. Mr. D was asked by the Complainant, what were the likely next steps. Without prejudging any future disciplinary proceedings, in which Mr D would have no role, Mr. D candidly replied that things were stacking up quite badly and that the disclosures by the witnesses were serious and could have serious implications for the Complainant. Mr. D was clear however, that the Complainant was fully entitled to due process taking place and on concluding his appeal.
The Complainant’s trade union representatives, Messrs. Fergus and Comaskey, who were both in attendance, requested that Mr D leave the room, to afford them an opportunity to discuss matters in private with their member. Sometime later and before returning to the room, Mr. Comaskey approached Mr D and had an off-the-record discussion with him. He asked him to speak candidly and asked about the Complainant’s options and whether or not the Respondent was likely to regard the witness interference issues as serious, or otherwise. Mr. D candidly indicated that he felt the Respondent would take a very dim view of same, but that it was entirely the Complainant’s choice to elect to deal with whatever disciplinary action might follow, in due course.
Upon being subsequently summoned back to the room, Mr. D was informed by the Complainant that having discussed and considered matters with his trade union advisors, he would resign his position from the Company. The complainant submitted to Mr D that before making a final decision, he wanted clarification around three issues, namely Service pay; Holiday pay; and a reference. He was advised that in the event of his tendering his resignation, he would receive a pro-rated service payment, accrued holiday pay and the complainant was advised that the Respondent would furnish a reference.
At that juncture, the Complainant confirmed verbally that he was anxious to avoid having an adverse disciplinary matter on his file and that he was therefore resigning, with immediate effect. He did so in unequivocal terms. He requested a piece of paper to confirm his resignation in writing and asked Mr. D to dictate what he should write therein. Mr. D was reluctant to dictate the terms of a resignation letter and simply indicated that a follow up email would be more than adequate. This was witnessed by both of the Complainant’s trade union representative. As the meeting concluded, the two trade union representatives left the room, at which juncture the Complainant apologised directly to Mr. D for his conduct and for wasting his time and Mr D wished him well and shook his hand. The complainant then left the plant and has never returned since.
Given that the resignation had been broadly speaking amicable, Mr. B attempted to follow up with the complainant by email on 26th June 2018, to formalize matters, to which he received no reply and Mr D then liaised with the Complainant’s trade union representative who was unable to establish contact. The Complainant did not engage and, in order to close the matter out formally, Mr. D wrote to the Complainant by letter dated 9th July 2018, confirming that the Respondent had accepted his resignation and further confirming that his resignation would be processed, effective 13th July 2018. The appeal therefore never concluded, arising from the Complainant’s resignation.
It was entirely clear that the complainant unambiguously resigned his employment in the presence of his union representatives and following discussions with them. Following receipt of Mr. D’s letter of 9th July 2018, the Complainant initiated legal action by letter dated 10th July 2018 and the Workplace Relations Complaint Form is marked as received on 12th July 2018
It was submitted that in a claim for unfair dismissal, the “burden of proof” normally rests with the employer to prove the “fairness” of a dismissal. However, the fact of dismissal is clearly in dispute in the present instance. Notably, it has not been alleged by the Complainant that he was “constructively” dismissed and that therefore is not the case that the Respondent has to meet. It is clearly alleged that the Complainant was “dismissed”, even if the alleged circumstances of the alleged “dismissal” are impossible to decipher from the Complaint Form. In the present instance, the burden of proof rests squarely with the Complainant. It is submitted that by verbally confirming that he was resigning his employment with immediate effect, in the presence of his two trade union representatives, he clearly and unambiguously conveyed to the Respondent that he was terminating his position. He did this, without any coercion and at his own instigation and with the benefit of advice secured from his trade union representatives.
It was submitted that the Complainant foresaw that his appeal would not be upheld and that further disciplinary action would ensue, given the statements made by his own witnesses, namely that he had sought to coerce them into offering false evidence. It is further evident that he foresaw, given that the appeal was likely to endorse the earlier final written warning, that he would face a considerable risk of dismissal. In such circumstances, having sought and been afforded the professional advice of his seasoned trade union representatives, he made the decision to resign, openly and unambiguously. Despite being afforded ample opportunity, he never sought to rescind his resignation. The complainant returned his security pass at the conclusion of the meeting on 14th June 2018 and agreed to drop his locker key and would not have done that if he had not in fact tendered his resignation.
The respondent submitted that there were contradictory accounts offered in the complainant’s representative’s correspondence and the Complaint Form. It was also the respondent’s submission that the respondent acted proportionately and reasonably and that the complainant tendered his resignation after prolonged engagement with his representative. It was tendered by the respondent that no findings should be made in favour of the Complainant on the basis of the facts and submissions and that reinstatement was not appropriate. The respondent submitted that the complainant says that he resigned under duress but it was submitted that he had representation, advice and experience and that he accepted it. In response to the complainant’s surprise that Mr D would not give evidence, the respondent replied that they would stand or fall on that decision.
Case law cited included Keane v Western Heath Board UD940/1988,Fitzmaurice v Hele PVC Windows UD 385/1990; McArdle v Kingspan Ltd UD 1342/2003.
Evidence of Mr Comaskey was that he has worked at the respondent for 38 years, has been a union chairperson and has been involved in many industrial relations functions and representation. He said that the damage to the door was not a serious incident and that the disciplinary action was in line with previous disciplinary sanctions that other employees received. The allegations of coercion were a serious matter and Mr Comaskey spoke to Mr D on his own which would not be unusual in industrial relations matters and he believed from Mr D that the accusations could be proven. The options put to the complainant were to proceed with an investigation which might result in dismissal which would be detrimental to the employment record of the complainant or to resign. The complainant’s decision was to resign. Mr Comaskey asked the complainant if he was sure and he said yes. Mr Comaskey said the mood was sombre but not heated and that he shook hands with the complainant.
Under cross examination Mr Comaskey said if he was faced with the same situation, he would give the same advice. He said that he knew in advance of the meeting that there were allegations of coercion and that his understanding leaving the meeting was that the complainant had resigned was going to furnish a written letter of resignation.
Evidence of Mr Fergus was he has been with the company for many years and that the response of the company by way of disciplinary action was similar to that which others received. He said that Mr D was asked to leave the room at one stage and he told the complainant that the situation was serious and that the outcome could be serious. When Mr D returned there was another conversation and the decision to resign was the complainant’s decision. It was his belief that the complainant took time to consider the decision and resigned.
Under cross examination Mr Fergus said that Mr D said to email the resignation and that the option of resignation did not arise over the damage to the door and that the sanction of moving to the complainant to another area was proportionate and that Mr Fergus did not believe that was a demotion as there was no loss in pay. Mr Fergus said he did not believe the complainant needed any more time as he believed the complainant made an informed decision. |
Findings and Conclusions:
Hearing dates were scheduled and the respondent made a number of adjournment applications which the WRC considered and granted, where appropriate, owing to the circumstances of each requested adjournment. The complainant objected to the granting of the adjournments. A hearing proceeded on 20th September 2019 which was adjourned to allow time for discussions between the parties. On 16 October 2019 the WRC was advised that a hearing should proceed. At the hearing of 30th April 2021 there was a joint application for an adjournment, which was granted, owing to serious and direct conflict of evidence and pending legislation to allow for evidence to be taken under oath/affirmation. The hearing proceeded on 13 December 2021.
The complainant submitted on his complaint form that he was asked to confirm his resignation by Mr D through an email and that he never expressed any wish to resign, did not resign and he took this email from Mr D to mean that he was dismissed. The respondent submits that the complainant resigned his position and that he did so following consultation with the complainant’s experienced union representatives.
Section 1 of the Act defines dismissal in the following manner “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;
Dismissal as a fact was in dispute and therefore it is for the complainant to establish that a dismissal occurred. If that is established, it is then for the respondent to demonstrate that in the circumstances of this case there were substantial grounds justifying dismissal.
It was not in dispute that the complainant received a final written warning and that he appealed this warning to Mr D. It was disputed by the complainant that he damaged a door that led to the final written warning. I note that the complainant submitted that the investigation that resulted in the final written warning was flawed, a claim which the respondent denied.
It was not in dispute that at the meeting into the appeal of the final written warning on 11th May 2018 the complainant was advised that he was to be suspended with pay as information had come to the attention of Mr D which required further investigation “into intimidation by trying to preventing (sic) the course of the original investigation”. A further meeting took place on 14th June 2018 and it was unclear from the correspondence but it would appear that the purpose of this meeting was to progress the appeal of the final written warning as well as to discuss the new allegations.
There was conflict in the evidence of witnesses as to whether the complainant mentioned that he would resign or that resigning was an option put to him. It would appear more credible that options were discussed with the complainant and his representatives, including whether the complainant could or should resign; or proceed with the appeal and possibly a further investigation into the allegations of intimidation. In direct evidence the complainant said that he did resign at the meeting in June but he later changed his mind as he felt under pressure to resign.
In the case of Millett -v- Shinkwin DEE2004ELR319 the Labour Court stated the “general rule” as follows
“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”
The EAT found in Martin v Yeoman Aggregates Ltd [1983] IRLR 48- “It is a matter of plain common sense, vital to industrial relations, that either an employer or an employee, should be given an opportunity of recanting from words spoken in the heat of the moment. It could not be accepted, as argued by the appellant, that once clear and unambiguous words are used the contract irreversibly comes to an end so that second thoughts make no difference”.
In her book Dismissal Law in Ireland, Dr Mary Redmond wrote as follows at para.[21.24]: “When 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 that the employee has resigned. However, context is everything. A resignation should not be taken at face value where in the circumstances, there were heated exchanges or where the employee was unwell at the time. The intellectual make-up of the employee may also be relevant.”
I am satisfied that there were discussions with the complainant and his representatives regarding whether he should resign or proceed with the appeal of his final written warning and possibly a further investigation into the allegations of intimidation that were put to him. I note that the complainant sought the advice of his representatives. I also note that these union representatives are experienced in industrial relations matters and gave advice, as is their role. I am satisfied that the complainant listened to their advice and it was the complainant who made the decision to resign at this meeting of 14th June 2018.
I can understand that this meeting might have been a very stressful meeting for the complainant, and it is unclear why a decision had to be made at that meeting of 14th June and why the complainant was not given more time to consider such a serious decision of resignation. However, it was clear from the evidence of all witnesses, including the complainant, that he resigned his position at the meeting of 14th June and that when he left that meeting of 14th June, the complainant clearly understood that he had been given options and that it was the complainant who chose to resign. It was appropriate that Mr D did not write the letter of resignation for the complainant or give suggestions as to what the complainant might put into the letter of resignation.
If the complainant then changed his mind or believed that he was under pressure to resign, which I do not find that he was; the complainant made no effort to contact the respondent or indeed his representatives to alert them that he wished to change his decision or raise that he had concerns about his decision. I note that the complainant was familiar with the grievance and disciplinary procedure. I do not find any evidence that it was a “heat of the moment” decision which was put forward by the complainant’s representative. Experienced union representatives for the complainant were at the meeting and would have been alert to any concerns about a “heat of the moment” resignation from the complainant. Both Mr Comaskey’s and Mr Fergus’ credible evidence was that they had no concerns that the complainant’s decision was rushed or heated. I also note that the complainant shook hands with Mr D and his two representatives when he left the room which does not suggest that the complainant had concerns with his decision or appeared flustered.
An email was sent to the complainant on 26 June 2019 and the complainant did not respond. The respondent emailed the complainant again on 9th July 2018 confirming acceptance of the complainant’s resignation effective 13th July 2018 and I find it noteworthy that it was only then that the complainant decided to have his solicitor respond.
For completeness, there was no evidence proffered that might suggest a claim of constructive dismissal and I note that there was nothing to satisfy the established tests for constructive dismissal such as the “contract test” or “reasonableness test” Western Excavating (ECC) Ltd v Sharp [1978]IRL332.
Having considered all the evidence and submissions and noting the credible evidence of the two witnesses for the respondent who acted in good faith on behalf of the complainant at the meeting in June; I find that the complainant resigned his position and that the complainant was not unfairly dismissed and I dismiss the complaint. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
In all the aforementioned circumstances I find that the complainant was not unfairly dismissed and I dismiss the complaint. |
Dated: 6th October 2022
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Unfair dismissal, resignation, final written warning |