Complainant

Respondent

Parties

Kim  Tully (Alright)

Department of Justice

Representatives

Seán Carabini, Fórsa

Chief State Solicitor’s Office, instructing Hugh O’Donnell B.L.

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-00051785-001

21/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act 1973

CA-00051785-002

21/07/2022

On 18 March 2008, the Complainant commenced work as a Clerical Officer for the Respondent. On 5 April 2022, the Complainant gave her notice to the Respondent, indicating that her last day would be 2 May 2022. On 11 April 2022, when her alternative employment offer fell through, the Complainant sought to withdraw her resignation. On 19 May 2022, the Respondent confirmed that it had accepted the Complainant’s resignation and that her employment was terminated. The Complainant submits that in refusing to accept the withdrawal of her resignation, the Respondent effectively unfairly dismissed her.  The Complainant submits that the Respondent breached the Department of Public Expenditure and Reform Circular 10 of 2012 entitled “Resignation and Retirement Notice Periods” (“Circular 10/2012”). The Complainant further submits that that the Respondent breached the UD Act and the Minimum Notice and Terms of Employment Act 1973 as amended (the “MNTEA”). The Complainant seeks reinstatement and compensation.

The Complainant provided detailed written and oral submissions.

On 18 March 2008, the Complainant commenced work as a Clerical Officer for the Respondent. On 14 April 2009, the Complainant transferred as a Clerical Officer to the Probation Service, an agency within the Respondent. The Complainant worked part-time on a 60% working pattern, earning approximately €435.37 per week. In early April 2022, the Complainant received an offer of employment from Tusla, the Child and Family Agency. On 5 April 2022, the Complainant gave her notice to the Respondent, indicating that her last day of employment would be 2 May 2022. On 8 April 2022, the Complainant was informed by Tusla that her offer of employment was withdrawn. The Complainant submitted that although the fact was not stated in the job advertisement, Tusla was not willing to accept the Complainant’s qualification. On 11 April 2022, the Complainant contacted the Respondent, seeking to withdraw her resignation and to explore whether she could take a career break instead. On 19 May 2022, the Respondent confirmed that it had accepted the Complainant’s resignation and that her employment was terminated.

The Complainant relied on section 4 of Circular 10/2012 and submitted inter alia that:

·                Circular 10/2012 does not specify that a department must accept or refuse a resignation;

·                The resignation notification is referred to as an “intention” and is equivocal; and

·                Section 4(iv) is crucial insofar as it constructs a special circumstance which allows a person to withdraw a notice of resignation up to the date indicated as the last day of service.

The Complainant submitted that that the Respondent breached Circular 10/2012.

The Complainant submitted that in refusing to accept the withdrawal of her resignation, the Respondent effectively unfairly dismissed her in breach of the UD Act. The Complainant submitted that this unfair dismissal took effect on 19 May 2022.

The Complainant submitted that she did not receive her notice entitlements as set out under section 4 of the Minimum Notice and Terms of Employment Act 1973, as amended (the “MNTEA”).

Finally, the Complainant submitted that she had enjoyed working for the Respondent and that she was held in high esteem. The Complainant sought reinstatement and compensation.

Witness Evidence:

Witness Evidence – Complainant:

The Complainant outlined that she spoke to her Line Manager in late March/early April 2022 to let her know that she intended to resign to take up a new role with Tusla. On 5 April 2022, she gave her notice and submitted the Exit Form. On 7 April 2022, she went on annual leave. The Complainant outlined that there was no handover period during which she could show anyone how to do her job and that as far as she knew, her role has not been filled.

On 8 April 2022, the Complainant learned that her Tusla employment offer was withdrawn. On 11 April 2022, the Complainant contacted the Respondent to withdraw her resignation and explore whether she could take a career break instead. In addition to emailing the Respondent, she also called the Respondent numerous times. The Complainant explained that in seeking a career break, she was trying to “keep the door open” and did not want a break in her service. She outlined that she tried to resolve the situation in any way that she could. On 19 May 2022, the Respondent emailed her, stating that her resignation had been accepted and that her employment was terminated. When the Respondent refused to accept the withdrawal of her notice, the Complainant invoked the grievance procedure. However, she has received no response from the Respondent to date.

The Complainant outlined that she would like to be reinstated by the Respondent. She outlined that she has tried, without success, to resolve the situation with Tusla. She said that seeking new employment has taken up a significant amount of her time.  She also said that she made approximately 12 job applications – completing the exam process for one role and reaching the interview stage for another. The Complainant outlined that she received a job offer approximately two weeks ago. She outlined that her job search has been made more difficult as it is hard to explain the break in her C.V.. She outlined her suspicion that prospective employers don’t believe her when she tells them what happened.

The Complainant said that she is embarrassed by what has happened. She said that these events have had an adverse effect on her mental health and wellbeing.

Cross-examination - Complainant:

The Complainant accepted that she did resign. The Complainant accepted that she sent her email dated 5 April 2022, which set out her resignation. She further accepted that she completed the Exit Form dated 5 April 2022 and that when doing so, she selected the option “resignation” under the section headed “Exit Type”.

The Complainant outlined that she was moving on to Tusla for better career opportunities, and that she had been looking forward to her new role. She also outlined that she had attended a “goodbye lunch” organised by her colleagues.

The Complainant outlined that there were conversations about a handover but there was no actual handover to another person who was taking on her role.

The Complainant outlined that she spent most of her time trying to mitigate her loss. The Complainant outlined that she when she was not applying for jobs, she was dealing with the Respondent and Tusla. The Complainant accepted that while she did not apply for jobs every single day, she did not accept that she had not made sufficient efforts to mitigate her loss.

The Complainant outlined that she is going through an “onboarding process” for a new role at the moment and that she has not yet taken up the new role.

The Respondent provided detailed written and oral submissions.

The Respondent submitted that the Complainant’s resignation dated 5 April 2022 was clear and unambiguous. The Respondent further submitted as the Complainant resigned from her role, there was no dismissal and therefore no breach of the UD Act. The Respondent submitted that there are no “special circumstances” within the meaning of the caselaw applicable to the Complainant’s case, which would permit her resignation to be withdrawn. Finally, the Respondent submitted that the complaint is misconceived and without basis.  

Witness Evidence:

Witness Evidence – Ms. Matthews:

Ms. Matthews outlined that she is the Senior Probation Officer in Kildare, and that she worked in the same office as the Complainant. She outlined that prior to the Complainant leaving, a “goodbye lunch” was organised for her and another member of staff. Ms. Matthews outlined that the Complainant’s role has since been filled.

Under cross-examination, Ms. Matthews outlined that the Complainant’s role was filled on 9 January 2023. Ms. Matthews further outlined that she had a good working relationship with the Complainant and that she would have no issues working with the Complainant if she returned to the office.

Witness Evidence – Ms. Lyons:

Ms. Lyons outlined that she is an Executive Officer for the Midlands and South-East region. She outlined that she was the Complainant’s supervisor. Ms. Lyons explained that the Complainant phoned her on 14 March 2022 to say that she was taking up a new role. She said that the Complainant explained that it was a new role for her and that she was looking forward to it. Ms. Lyons outlined that the Complainant emailed her on 5 April 2022 with her resignation. Prior to the Complainant leaving, they discussed matters such as key fobs, alarm codes and contacts. Ms. Lyons outlined that the Complainant’s role is now filled.

Under cross-examination, Ms. Lyons accepted that she had a good working relationship with the Complainant had no issues with her whatsoever. Ms. Lyons explained that the Complainant had worked part-time, on a 60% working pattern. She explained that her team had received sanction for another full-time post and so there were 1.6 clerical roles. She further outlined that the Complainant’s post was filled on 9 January 2023.

Witness Evidence – Ms. Brennan:

Ms. Brennan outlined that she is the HR Manager for the Probation Service. She outlined that the Complainant’s role in the Newbridge Office is now filled. She further outlined that in early 2021, they considered the business case for another full-time role, which has been filled. She outlined that, to date, they have not filled the remaining post, which is part-time and based on a 60% working pattern.

Under cross-examination, Ms. Brennan explained that as things stand, the additional headcount will be applied to the region and does not go back to the Newbridge Office.

Witness Evidence – Ms. Walsh:

Ms. Walsh outlined that she works in the Respondent’s HR Department - specifically in the Employee-Relations Team. She outlined that she deals with matters such as career break applications. Ms. Walsh outlined that she saw the Complainant’s Exit Form dated 5 April 2022. She further outlined that the Complainant contacted her colleague about withdrawing her resignation and that the Complainant made at least three follow-up telephone calls. Ms. Walsh outlined that in her email to the Complainant dated 19 May 2022, she confirmed that the Respondent had accepted her resignation.

Under cross-examination, Ms. Walsh explained that she had escalated the Complainant’s request to withdraw her resignation to Mr. Coffey. Ms. Walsh said that he had made the decision to refuse the Complainant’s request and that she had relayed this decision to the Complainant.

Witness Evidence – Mr. Coffey:

Mr. Coffey outlined that he is the HR Manager for the Respondent and that he partners with the Probation Service. He outlined that he has worked for the Civil Service since 2017.

Mr. Coffey outlined that if an employee hands in their notice, they usually discuss it with their Line Manager and submit an Exit Form. Mr. Coffey outlined that Circular 10/2012 is civil service policy. He outlined that if there is a resignation in the heat of the moment, or if there are “special circumstances”, a resignation may be rescinded. He outlined that such matters are considered on a case-by-case basis. He outlined that usually from the Respondent’s perspective, once an employee has resigned, the Respondent has to move on to fill the role.

Under cross-examination, Mr. Coffey was referred to section 4(iv) of Circular 10/2012 which states that: “A notification of resignation/retirement may not be withdrawn on or after the date indicated as the last date of service.” Mr. Coffey accepted that this section does not refer to any “special circumstances”. Mr. Coffey stated that there is no document which outlines the “special circumstances” to be considered. Mr Coffey stated that the Respondent considers matters on a case-by-case basis. He further stated that the Respondent would consider “heat of the moment situations”. Mr. Coffey stated that if an employee resigns, the Respondent “take[s] it as read”.

Under cross-examination, Mr. Coffey explained that the Respondent had not emailed the Complainant until 19 May 2022 as the Respondent had to consider the matter and could not rush it. Mr. Coffey stated that they had one previous case involving the Probation Service where an employee sought to rescind their resignation and this was refused.

Mr. Coffey did not accept that the converse of section 4(iv) of Circular 10/2012 applies. He did not agree that it could be read as follows: “A notification of resignation/retirement may be withdrawn on or before the date indicated as the last date of service.”

CA-00051785-001: Complaint under the Unfair Dismissals Act 1977-2015:

The Law:

Section 1(1) of the Unfair Dismissals Act defines “dismissal” as follows:

“(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”.

The general rule is that an unambiguous and unconditional resignation brings a contract of employment to an end. As noted by the Labour Court in Millett v. Shinkwin, EED044, (the “Millett Case”):

“resignation is a unilateral act by 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.”

Redmond on Dismissal Law, at paragraph 22.22, notes “[w]hen 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. The contract is terminated in accordance with its terms and as there is no repudiation, acceptance is not required by the employer”.

Regan and Murphy in Employment Law, at paragraph 18.10, note that “[w]ithdrawal of an employee’s resignation can be done only with the employer’s consent”.

However, as also noted in the Millett Case, there are exceptions to this general rule when an apparently unambiguous and unconditional resignation may be vitiated by “special circumstances”. For example, in the Millett Case, the employee resigned following an acrimonious exchange with her employer during which hurtful and damaging language was used. The Court found that the complainant’s subsequent decision to write a letter of resignation was not a fully informed and calculated act. In Maureen Keane v. Western Health Board, UD940/88 (the “Keane Case”), the Employment Appeal Tribunal found that the claimant’s resignation was tainted by her ignorance of the grievance procedure and was not fully informed.

Findings:

It is uncontested that the Complainant gave her notice and submitted her Exit Form on 5 April 2022. The resignation was unambiguous and unconditional. The Complainant subsequently sought to withdraw her resignation on 11 April 2022.

While the Complainant cites the Millett and KeaneCases in her support, she has not shown what similar “special circumstances” existed which would have vitiated her unambiguous and unconditional resignation dated 5 April 2022. The Complainant enjoyed working for the Respondent and was held in high esteem by her colleagues. She informed her supervisor of her intended resignation on 14 March 2022. The Complainant attended a “goodbye lunch” hosted by her colleagues. The Complainant gave her notice and submitted her Exit Form on 5 April 2022. Unlike the Millett Case, the Complainant did not resign following an acrimonious exchange with her employer. Unlike the Keane Case, the Complainant was on good terms with her colleagues, her resignation was informed and she was aware of the Respondent’s grievance procedure.

The Complainant also seeks to rely on Circular 10/2012, entitled “Resignation and Retirement Notice Periods”. The Respondent outlined in Mr. Coffey’s evidence that Circular 10/2012 is civil service policy. However, as noted in Hogan, Morgan and Daly in Administrative Law at paragraph 2-168, while circulars can have practical weight, they are not law.

Conclusion:

The Complainant has not established that the Respondent dismissed her as set out under section 1(1) of the UD Act. Therefore, her complaint is not well founded. 

CA-00051785-002: Complaint under the Minimum Notice & Terms of Employment Act 1973:

The Law:

Notice entitlements are set out under section 4 of the MNTEA, as follows:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.”

Findings and Conclusion:

As outlined above the Complainant was not dismissed from her employment, but instead resigned. As such, the Respondent did not terminate her contract of employment and so she was not entitled to a minimum notice period pursuant to the MNTEA. Therefore, her complaint is not well founded.  

CA-00051785-001: Complaint under the Unfair Dismissals Act 1977-2015:

The complaint is not well founded.

CA-00051785-002: Complaint under the Minimum Notice & Terms of Employment Act 1973:

The complaint is not well founded.

Unfair Dismissal, Resignation, Minimum Notice & Terms of Employment Act 1973.