Complainant

Respondent

Anonymised Parties

Social Care Worker

Social Services Charity

Representatives

Andrew Freeman Seán Costello Solicitors/ Fiona Pekaar BL

Cait Lynch IBEC

Act

Complaint Reference No.

Date of Receipt

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

07/06/2022

The context of this complaint is a resignation where the Complainant handed in her notice and later, she attempted to rescind her decision.  The Complainant had lost her daughter suddenly 2 years previously and heard of her daughter’s passing while at work. The loss of a child is accepted to be one of the most difficult and traumatic events that a parent can experience. The Complainant is long serving and is highly qualified. The Complainant was asked to move to another placement, and it is this change that gave rise to her leaving the Charity. The Complainant stated that she has an allergy where she develops chronic chest respiratory difficulties and resisted the move based on that condition. However, after resigning her GP advised her to rescind her decision as she was in fact experiencing huge anxiety and stress linked to her daughters passing and the request to change placement while a significant change, was not the reason she resigned. In fact, she was not in a fit state to make such a major life/career decision. She wrote to her employer on the 8th of February 2022 and following consultation with her GP, that she was no longer proceeding with her resignation based on medical advice. That request was not accepted by her employer based on a policy where once a resignation has been put in train it cannot be withdrawn.

The Complainant commenced employment with the Charity on the 1st of January 2004.

The Complainant in the last number of years was under huge stress and without legal or medical advice she formally handed in her resignation when she was asked to move location on or about the 27th of January 2022.

However, after speaking to her GP and family it soon became clear to her that she was not in a fit mental state to make such a decision. She realised she had made a mistake and on the 8th of February 2022 made a request that her resignation be withdrawn. That request was refused. Subsequently further correspondence was sent by her Solicitor stating that the Employer should not proceed with the termination and to re-engage with the Complainant.

The Complainant’s requests were refused.

The Complainant was not in a fit mental state to make this life changing decision. The Employer should have engaged with her based on her long service, her daughter’s passing and the fact that she feared moving to a location where she would be exposed to smoke, would cause a serious allergic respiratory condition.

The Complainant submits that the Respondent acted unfairly and unreasonably.

The dismissal of the Employee cannot be deemed unfair if it results wholly or mainly from the conduct of the employee and she resigned.

The common law rule regarding notice is once given by either party it cannot be unilaterally withdrawn (Riordan 1 WLR 1046). There was no haste in the decision. She initially communicated her decision to Human Resources and a few days later to her line manager. This decision was not made in the heat of moment.  In fact, in her letter the Complainant stated that she had given it a lot of thought and she would like to focus on her health and family and to undertake work that would suit those commitments.

The recruitment process had started and in was not practical to stop the process.

The Respondent’s position is that the Claimant is not entitled to seek any redress Under the Unfair Dismissals Act 1977 as amended as the Complainant has in fact contributed 100% to their dismissal.

The Respondent has requested the tribunal to note the following cases:

The common law rule regarding notice given by either party is that once notice is given it cannot unilaterally be withdrawn. A leading common law case is Riordan v War Office (1959) 1 WLR 1046 where Diplock J stated: „this was sufficient notice given by the plaintiff terminating his employment…once given it could not be withdrawn save by mutual consent‟

The respondent would note In the UK case of Kwik-Fit (GB) Limited v Lineham [1992] IRLR 156, it was held that if an employee resigns in the heat of the moment and special circumstances exist, then an employer should investigate the matter and ascertain the employee’s true intentions. “Special Circumstances” may include particular pressures on the employee or the employee’s personality. In this case, it was found that the employee had only resigned in the heat of the moment after considerable humiliation and provocation by his manager.

The Company relies on a universal application of a policy that where an employee resigns that resignation is never rescinded. The Charity was willing to place the Complainant on an agency panel after leaving the Organisation. The Complainant in fact wrote a very complimentary note to her employer when resigning.

The Respondent stated that they were under no special duty to this employee. They were not aware of the fact that she was traumatised or that she was not in a fit position to make a decision.

I note in Redmond 3rd Ed, Dismissal Law the following case:

In Geraghty v Industrial Credit Corporation 29 the EAT concluded on the evidence that the respondent did not regard the claimant’s ‘resignation’ at the relevant time ‘as a real resignation’. The EAT has also given guidance on circumstances where an employee resigns but later communicates to his employer that he wishes to withdraw his resignation: Keane v Western Health Board. 30 The claimant had resigned in Keane, apparently unaware of her employer’s grievance procedures. She attempted to invoke the procedures during the notice period. The respondent’s evidence was that it did not reconsider a letter of resignation as a matter of policy. The EAT held that the claimant, notwithstanding the grievance procedure, genuinely believed that the difficulties and stress she was experiencing presented her with no alternative other than to resign from her employment:

‘The letter of resignation viewed against the background in which it was made could not be deemed a fully informed decision or notice by her to terminate her contract of employment. The Tribunal, accordingly, is of the opinion that the notice of resignation is tainted by reason of the confused state of her mind at the time it was tendered coupled with her obvious lack of appreciation of the grievance procedure.’

The facts of this case are all indicative of a resignation that was tainted by reason of her confused state of her mind. I also note at paragraph 22.25 the following observation in Redmond on Dismissal Law:

If, therefore, an employee tries to withdraw a notice of resignation, an employer should ask itself whether special circumstances exist. If so, they may cast doubt on whether the resignation was really intended. The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts.

The Employee hands in her notice on the 27th of January 2022 and also copy’s that resignation to another manger on the 31st of January 2022.

On the 8th of February 2022 the Employee writes to the Respondent and states:

Trust this email meets you well.

I am writing to request that you disregard my email in relation to notice of resignation from my position. Following consultation with my GP I am no longer proceeding with my resignation.

The two witnesses for the Respondent state they were not aware of the Complainant’s loss and most definitely were not aware of her mental state when making her decision to leave. During cross examination the Manager did admit while she did not know at the time of the resignation, subsequently she became aware of the Complainant’s personal situation where she had lost her daughter in tragic circumstances.

On the facts, I find that the Complainant was not in a fit state of mind to resign from her position. The Employer was put on notice that the Complainant wished to withdraw her decision to resign. She referenced that she had made this decision after meeting her GP. On receipt of this communication, it was obligated to make inquiries at that time and the Complainant’s long service. It did not. The Complainant was clearly not able to make such a choice. The Employer should have met the Complainant and discussed with her why she was now rescinding the decision. Based on a policy that is inflexible and justifying that practice on equity when on the facts of this case, that policy was applied unfairly and unreasonably having regard to the state of mind of the Complainant. It was not a decision based on bad intent, rather a policy driven process that failed to appreciate the state of mind of this Employee and that she was not in fit mental state to make that decision to leave her job after 18 years of excellent service. It lacked empathy and understanding of the difficult personal circumstances of their employee. There was no reason why the recruitment should not have stopped or continued but for other roles as there is an ongoing shortage of staff in this sector.

The Act provides that I have regard to the reasonableness of the employer’s conduct:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, 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,

I determine that the Complainant was Unfairly Dismissed by the Employer on or about the 28th of February 2022 as she was not in a fit state to make that decision. The Employer should have met her and reconsidered their position based on the unique facts of this case. They failed to do so and stuck rigidly to a policy that has very little to do with human nature and vulnerability and how the stresses and strains that employees may experience can impede rational decision making. This is particularly so as this Charity operates in the mental health sphere. This is a very large organisation and the Complainant at the hearing stated that she now would prefer compensation on the basis that trust, and confidence has been breached, at a point she sought her job back.

The Adjudicator must assess what is the right form of redress. I am aware the Employee has gained a new position; however, working in a much less responsible role and with significantly less compensation.

The Employer has been on notice for some time that the Complainant wished to have her job back and to rescind her letter of resignation.

This is a Charity in receipt of very significant state funding. It is the management practice of rigidly applying a HR policy that has led to an unreasonable and manifestly unfair decision. The policy seems to be inflexible and discretion to adapt to unique circumstances does not appear to exist.

The hearing itself was very traumatic on the Complainant where she had to relive the trauma again of her daughter’s loss and that grief may have tainted her request for compensation arising from her treatment by her employer when she attempted to rescind her resignation decision.  

The Complainant ticked all three remedies in her form and in turn the Respondent was on notice of same and this was addressed again at the hearing:

What type of redress are you seeking? Re-instatement Selected

 What type of redress are you seeking? Re-engagement Selected

 What type of redress are you seeking? Compensation Selected

When asked to address me on what remedy she preferred based on ticking all 3 remedies in her form, she stated compensation having regard to how she was treated, and she had now obtained alternative employment although not at the same professional level and at a much lower salary. When asked why she had changed her mind by the Adjudicator she stated this was principally because of how she had been treated by her employer. She found this very upsetting and difficult to comprehend.

The Employer was also asked to comment on the remedies available as detailed and stated that their view was the Complainant resigned and as such no dismissal took place and so none of the redress options were suitable in this case. However, they also stated if that was not held, compensation could arise and if so then the Complainant’s financial loss was low based on her failure to mitigate her loss.

The matter of redress and what is preferred by the Complainant or Respondent is without prejudice to the Adjudicator’s obligation to make what is the right decision based on the circumstances of this case:

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances

This organisation is a very large Charity. There is no personal animus involved in this case. It was a decision based on bureaucracy and with little consideration of the facts. There is no animus held against the Complainant. She is a highly regarded professional. The Justice of the case is best served by her being put back in the position she was in on or about the 28th of February 2022 where the employer should have accepted that she had good reasons to rescind her resignation and the decision to resign was tainted.

I have determined that the Complainant has been Unfairly Dismissed. Compensation is not an adequate remedy based on a commitment to a career in social services and spanning 18 years of service with this Charity.  The GP’s advice was that the decision to resign was made when the Complainant was not capable of making a rational and considered life decision. Not to put her back into the position where she can now make that clear and rational decision would be an injustice based on the circumstances of this case. While the Complainant has obtained employment it is not at the same level or attracts the same terms and conditions. Re-engagement is not an adequate remedy when the employee should have been facilitated based on the facts of this case and the resignation set aside. The Employee sought to set aside her resignation and to be allowed to continue in her role. It is for this reason that I find the Complainant should be reinstated.

I have determined for these reasons that the Employee be reinstated effective the 28th of February 2022.

I have determined that the Complainant has been Unfairly Dismissed. Compensation is not an adequate remedy based on a commitment to a Social Care Professional career and 18 years of service with this Charity and having regard to the  unreasonable conduct of the Employer in enforcing a tainted decision.  The Complainant was held by her Employer, a mental health Charity to a tainted decision, primarily arising out of loss and grief regarding the death of her daughter, when she was not capable of making a considered and rational life decision. While the Complainant has obtained employment it is not at the same level or attracts the same terms and conditions. Re-engagement is not an adequate remedy when the employee should have been facilitated based on the facts of this case and the resignation set aside. The Employee sought to set aside her resignation and to be allowed to continue in her role. It is for this reason that I find the Complainant should be reinstated.

In the circumstances of this case the actions of the Employer were not reasonable and for that reason I have determined that the Complainant was unfairly dismissed. It is a dismissal simpliciter as the Employer was obligated based on the Employee’s email of the 8th of February 2022 to inquire into the circumstances of the resignation. The Employee in the circumstances was right to withdraw her resignation and the Employer continued to bind her to it although tainted and therefore the decision to terminate was ultimately made by the Employer. In making this decision I have set out the statutory basis to do so where, 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,

I have determined for these reasons that the Complainant was Unfairly Dismissed, and that the Employee be reinstated effective the 28th of February 2022.

Resignation -Rescinded -Reinstatement-Unfair Dismissal