Complainant

Respondent

Parties

Patricia  Groarke

Pat The Baker

Representatives

  The claimant represented herself

Dajana Sinik IBEC

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-00060104-001

18/11/2023

The claimant was employed as a van salesperson with the respondent from the 14th.November 2022 to the 15th.November 2023 when she alleges she was unfairly dismissed.

The claimant set out details of an incident  that took place while on duty on the 11th. November 2023 which resulted in her quitting her employment  during a heated discussion and following which she states she was given an opportunity to reconsider her position. It was submitted that subsequent to this offer to reconsider which was made to the claimant it was withdrawn and she was dismissed unfairly. The respondent submitted that there was no jurisdiction to hear that complaint as the claimant did not have the requisite one years service.Without prejudice to the foregoing , the respondent submitted that no dismissal took place and that the complainant resigned of her own volition.

The respondent made the following submission with respect to the matter of jurisdiction : Adjudication Officer,

 The Respondent wishes to raise a preliminary issue in relation to the jurisdiction of the WRC to hear the complaints as referenced, ADJ - 00048826 / CA – 00060104. The within claim by the claimant  (hereinafter referred to as ‘the Complainant’) against her former employer, Pat the Baker (hereinafter referred to as ‘the Respondent’) is brought under Section 8 of the Unfair Dismissals Act, 1977.

 In her claim form to the WRC, the Complainant alleges Unfair Dismissal, however, the fact of dismissal is in dispute. The Complainant resigned from her employment of her own volition and was not dismissed.

 Notwithstanding that the fact is in dispute, the Respondent notes that the Complainant is making a claim without having the requisite length of service needed to enact her rights under the Unfair Dismissals Act.

The Complainant commenced employment on 14th of November 2022 and resigned on 11th of November 2023, with no notice afforded to her former employer. (See appendix 1 contract of employment and resignation message).

 In the case of Employee v Employer UD969/2009, the Employment Appeals Tribunal was asked to decide on a preliminary matter first before moving to hearing the substantive case. Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

 In the case of Bus Eireann v SIPTU PTD048/2004, the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required’ referencing the judgement of O’Higans CJ in Tara Exploration & Development Company Limited v Minister for Industry & Commerce [1975] IR 242.

 Therefore, the Respondent submits that the Workplace Relations Commission does not have jurisdiction to hear this claim under the Unfair Dismissals Act 1977-2015 (the Act) as set out in section 2(1)(a) of the Act Section 2 (1) of the Unfair Dismissals Act, 1977 which states the Act shall not apply to;

an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,

 The Respondent further refers to BDO and Ms Eimear Stynes (UDD1947) where the preliminary matter of length of service required under the Act was raised. The Court provided its view on the matter:

The Court draws its jurisdiction from the Act. The Act makes clear that, in order to enjoy the protection of the Act, the Appellant must meet the service requirement set out in the Act unless a provision of that Act exempts her from that requirement. The Appellant has not contended that any provision of the Act removes from her the statutory requirement to have acquired 12 months service in order that the protection of the Act would apply to her….. The Appellant, having less than 12 months service at the date of termination of her employment, lacks the locus standi to pursue the within appeal.

 CONCLUSION

 The Complainant’s length of service was from the 14th of November 2022 to the 11th of November 2023. As per the Section 2(1)(a), the Complainant does not have the requisite length of service required to pursue her claim under the Unfair Dismissal Act. The Respondent respectfully submits that the Adjudication Officer assigned to hear this case has no jurisdiction to do so, and therefore requests that the claim fails on the preliminary matter.

The respondent presented the following submission on the substantive complaint :

 The within claims by the claimant (hereinafter referred to as ‘the Complainant’) against her former employer,  (hereinafter referred to as ‘the Respondent’) is brought under Section 8 of the Unfair Dismissal’s Act, 1977.

 The Complainant alleges that she was unfairly dismissed. (WRC Complaint form – Appendix 1)

 In her claim form to the WRC, the Complainant alleges unfair dismissal, however, the fact of dismissal is in dispute. The Complainant resigned from her employment of her own volition and was not dismissed.

BACKGROUND TO THE RESPONDENT

 The respondent is a national family  run business which manufactures and distributes freshly made bread throughout the entire country daily. This is achieved through a team of over 400 staff, 1 production line and 8 distributions sites.

 BACKGROUND TO THE COMPLAINANT

 The Complainant commenced employment on 14th of November 2022 and resigned from her position on 11th of November 2023, with no notice afforded to her former employer. The Complainant worked as a Van Sales Driver and earned €461.92 Gross pay, including a €12 daily lunch allowance. (See appendix 2 contract of employment)

 BACKGROUND TO THE CLAIM

The Complainant commenced employment as a Sales Van Driver. Her role involved driving to various locations delivering bread. This task also included, placing the bread in the allocated place.

 11th of November 2023 – The line manager at the time, Mr.AJreceived a call from SuperValu to inform him of an incident that took place with the Complainan

. Shortly after, the manager spoke to the Complainant, where she stated that she was outside the store waiting for the owner to arrive.

 The manager convinced the Complainant that she should leave the location, continue her route and that he will contact the customer and investigate the matter further.

 On the same day, the Manager received a WhatsApp message from the Complainant stating that she is resigning from her position. (see Appendix 3)

 As a response, the Manager attempted contacting the Complainant twice but to no avail.

 The Manager then sent a message stating, “Can you call me please”.

The Complainant replies with; “No I’ve told you I’m done not going to be spoken to like shit. Ive never let yee down always done what I was asked and enough is enough thanks for everything Alan.”

 The Manager requested for the Complainant to work out her notice period, however, the Complainant responded with; “I’ve quit not handed in my notice”, the Manager responded with; “So that is that, you have finished as of today? “ with the Complainant replying with “yes. 

 13th of November 2023 – The HR Generalist,  Ms.JT was informed of the Complainants resignation. It is the standard procedure within the company that from this point, it is the responsibility of the HR Generalist to complete the following.

 - Get a formal resignation in writing.

 - Conduct an exit interview,

- Inform Payroll of change

 On the same day, the HR Generalist, contacted the Complainant to organise an exit interview.

 At this point, the HR Generalist was unaware of the written resignation sent via WhatsApp to the Complainants line Manager, Mr.AJ.

 During this phone call, the Complainant informed Jolene of the incident that took place on the 11th of November.

 Following the phone conversation Ms.JT  emailed the Complainant with an exit interview form and requested a resignation in writing.

 14th of November – the Complainant responded stating: “I’ve been thinking a lot about things since we had the phone call yesterday and if I was to consider going back what are the chances of a pay rise as if money was to improve some what it might make my decision easier”.

On the same day, the HR Generalist explained that there are talks about wage increases, however, she’s unaware of how it will be distributed between the different departments.

 The Complainant replied by thanking her and stating that she will get in contact in a few days. The HR Generalist responded with “Can you let me know by 10am tomorrow as I will need to inform payroll to arrange your payment.”

 15th of November – The Complainant requested returning to the same role.

The Complainant sent a further two emails stating, “Just wondering if you have been talking to Mr.AJ about me going back to work or if he even wants me back lol”,

 And,

“Sorry to be sending another email but I’m just wondering what’s going on as if ye don’t want to take me back that’s fine just to let me no by this evening thanks ”

On the same day, the HR Generalist responded by explaining that she was not aware that the Complainant had resigned in writing and unfortunately, her role has been filled.

The Complainant replied with; “When u were talking to me u told me take a couple of days to think about it now ur telling me my run is gone”

 16th of November – The HR Generalist replied with: “There must have been an misunderstanding, You had handed in your notice in writing to Alan which he then was fully free to fulfil the role. I wasn’t aware of this speaking to you.”

 Few minutes later the Complainant responded by asking the HR Generalist to sort everything with payroll, further stating:

 “OK. I do think this was unfair dismissal really. Yes I may have texted  Mr.AJ . But he must've been in contact with you for you have contacted me Monday asking me to reconsider/ or fill out the exit form.. You said to me come back before 10 am Wednesday before I made a final decision in which I did.

 I've been advised to contact the WRC in relation to this as it wasn't finalised as you'd given me the time to think.”

With the HR Generalist stating: “Hi P, as stated previous I wasn’t aware that you had given Mr.AJ your notice in writing. He had told me you had given notice but you had given it in writing. As far as we are concerned it isn’t dismissal you resigned of your own free will. I will arrange with payroll for any payments owed to you.” (See Appendix 4 for above emails)

 RESPONDANTS POSITION

STRICTLY WITHOUT PREDJUDICE TO THE PRELIMINARY ARGUMENTS

 Strictly without prejudice to the preliminary argument, the Respondent makes the following arguments

. Unfair Dismissal Claim

In her complaint form to the WRC, the Complainant alleges that she was dismissed from employment on 15th November 2023 stating that she was “unfairly dismissed”.

 The Respondent refutes this claim in its entirety and submits that no dismissal took place.

 Instead, following an incident with a customer, the Complainant resigned from employment with the Respondent voluntarily and of her own volition.

 Section 1 of the Unfair Dismissals Act, 1977 defines dismissal 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.

 The Respondent is not disputing that the Complainant notified them of an incident between the Complainant and a customer, however this did not constitute a dismissal in accordance with the Act.

 Section 1(b) of the Unfair Dismissals Acts, 1977 – 2015 (as amended) defines dismissal in relation to an employee as inter alia

“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”

 In light of this definition, and established principles adopted by the Tribunal and the Courts, there exists a burden on the employee to demonstrate that:

 a) The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

 b) The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

 It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is the Respondent’s position that neither criterion has been met.

Throughout the Complainants employment, she has demonstrated a pattern of behaviour indicating dissatisfaction with her role as evidenced by her three previous threats to resign.

This establishes a precedent for her tendency to contemplate leaving the company independent of the incident leading to her resignation. The incident in question, wherein the Complainant engaged in an argument with a customer, prompted her resignation.

 Contractual Test

 The Respondent at all times operated within the terms of the contract of employment between the parties.

 No contractual violation occurred.

 The Respondent would draw on the explanation of the contractual test for constructive dismissal as set out in Conway v Ulster Bank, UD474/1981 to confirm this position, in that the Respondent did not violate any term of the contract or organisation policies, express or otherwise.

 The Respondent’s actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the Respondent no longer intended to be bound by the contract”. No change occurred in the contract to make it “so radically different from what it was before”.

The Respondent fulfilled its contractual obligations, implied and otherwise, at all times.

 In light of this, it is the Respondent’s position that the termination of employment fails on a contractual test to be a constructive dismissal.

 Despite the efforts from her line manager to resolve the situation and encourage her return to work, the Complainant declined both the offer of resolution and the opportunity to work out her notice period. This indicates a clear intention to terminate her employment.

Reasonableness Test

 In respect to reasonableness, it is the Respondent’s position that there exist two interwoven factors to be considered:

 (a) did the employer act unreasonably so as to render the relationship intolerable, and

(b)   did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures.

 This is in accordance with established approaches as expressed by the Tribunal, for example in McCormack v Dunnes Stores, UD 1421/2008, where the Tribunal stated: “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

 It is the Respondent’s position that it acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct.

 Reasonableness: exhausting procedures

 The Respondent has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000) (see Appendix 5).

 It is the Respondent’s position that in advance of the Complainant furnishing her resignation, her inquiry about potential salary increases further demonstrates her wavering commitment to resigning, suggesting that her decision was influenced extraneous factors rather than genuine dissatisfaction with her role.

 The Respondent maintains that the Complainant acted in a hasty and unreasonable manner by resigning from her position before notifying the Respondent of her concerns and in advance of exhausting internal procedures if she did indeed have concerns with her role.

 The obligation to exhaust internal grievance procedures extends even in situations whereby there exists a purported breach of contract.

 In Travers v MBNA Ireland Limited, UD720/2006, the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. The Complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal.

 The Tribunal found “the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case” and stated: “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

The Tribunal thus found in that case that the Complainant was not constructively dismissed.

Just as it is unacceptable in the case of a non-constructive dismissal for an employer to dismiss without recourse to fair and comprehensive procedures, so to it is insufficient for an employee to claim herself to have been constructively dismissed without utilising and exhausting grievance procedures.

 It is the Respondent’s position that the Complainant fails to establish the burden of proof that her actions were reasonable.

 It is crucial to emphasize that the company promptly filled the Complainants role following her resignation indicating a legitimate need to maintain operational continuity

. In relation to the Complainants resignation, there are two elements to take into consideration,

1) Whether the resignation itself was clear and unambiguous, and,

 2) whether the resignation was retracted.

 In line with this, and in light of case law, an employer is entitled to rely upon a resignation that is clear and unambiguous.

 However, the case law in terms of retraction points to a necessity for an employer to assess whether an individual was in a sound mental state at the time of resignation and whether the resignation occurred in the heat of the moment.

 The Respondent relies on the recent Adjudication Officer decision as it goes through a good analysis of the case law in this regard, Ms Julia Polonski -V- Cityjet Ltd, DEC-E2016-047

 Therefore, given the circumstances surrounding the Complainants resignation, including her refusal to work out her notice period and subsequent attempt to retract her resignation, the company’s decision not to accept her retraction is reasonable and justified

. In light of the aforementioned facts, it is evident that the Complainant voluntarily resigned from her position and subsequently attempted to retract her resignation under dubious circumstances. Therefore, the claim of Unfair Dismissal lacks merit, as the company acted within its rights and in accordance with established procedures.

 Furthermore, the subsequent interaction with the HR Generalist regarding her exit interview was misconstrued by the Complainant as an opportunity to reconsider her resignation.

 REDRESS

 The Complainant has selected compensation on her complaint form.

 The Respondent wishes to explore this in detail.

The Respondent contends that the actions of the Complainant contributed wholly to her own dismissal and therefore, hold the position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts 1977-2015. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978, where the Tribunal saw appropriate not to award any redress to the Claimant in light of his inappropriate actions.

 Without prejudice to the Respondent’s position that there was no unfair dismissal within the meaning of the Unfair Dismissal Acts 1977 to 2015, the Respondent submits that the Complainant is required to submit a statement of loss to prove that she has made sufficient efforts to mitigate her loss.

The respondent’s witness Ms.JT – HR General - set out the background to her career .She said she  received an email on the 13th.Nov. advising that the claimant had left  the company – she said that when someone resigns she would reach out , conduct an exit interview and inform payroll of any outstanding monies due. The witness said that when she contacted the claimant she listened to her explanation of what happened and asked her to revert in relation to the exit interview -  as opposed to her employment status. The witness said that she would have had no authority to negotiate with the claimant or to suggest she reconsider her position. She said that when she referred to the claimant not making any harsh decisions she was referring to the exit form.

In cross examination the witness was asked by the claimant why she had given her false hope , she denied giving false hope and made reference to a misunderstanding. The witness was unsure how the claimant was under the impression that she still had a job , the witness replied there may have been a misunderstanding – at that point the witness had not seen the claimant’s what’s app referring to quitting. She had not received the attached what’s app with the email.The witness acknowledged that she may have said that the line manager should have listened to her side of the story “in passing”.

In his direct evidence , the Senior HR Manager Mr.G referred to the requirement for conducting exit intertviews . He said that where a member of the public complains  about the behaviour of staff , the company would have to investigate the matter. He asserted that the company had fully supported the claimant. When the claimant resigned he may have reported the matter to Mr.PE.He confirmed that the claimant’s line manager Mr.AJ had spoken to him . He said that he had an exchange with Mr .AJ on the day in question and the line manager explained the difficulties he was having in contacting the claimant .He said the line manager said that he had tried to get the claimant to stay and work her notice as a number of drivers were off at the time but the claimant said no. He said he had to find a replacement driver and contacted one of the relief drivers .The witness said he found out about the incident after the event in an exchange with Ms.JT. The witness said he could not understand why the claimant would not engage with the line manager.He said he did not have a remit on operational matters.

The witness said it was difficult to recruit van drivers and explained the brief of Relief Drivers and Route Drivers.

In summing up the representative  for the respondent asserted that the claimant’s line manager had attempted to engage with her – the claimant had refused to provide notice and the claimant had already had another job lined up. The respondent’s actions were reasonable and fair and had to have regard to operational  continuity.The representative invoked the provisions of DEC -E2016-047 in support of their assertion that the claimant’s resignation was clear and unambiguous.

In her complaint form to the WRC the claimant submitted as follows :

The claimant said she commenced employment on the 14th.Nov. 2022 and was dismissed by the employer on the 15th.Nov. 2023.The claimant described arriving at a premises on the 11th.Nov. 2023 to find another company’s produce on the shelf she had been using since she commenced employment. Her line manager denied any knowledge of this change and later said he knew nothing of it. When the claimant started to move the items the manager – Mr.R.- of the shop told her the shelf was never yours “ whilst laughing at her in a belittling way”. The claimant said she attempted to call her line manager 4 times – she asserted that he ignored the first 2 calls , cancelled the third  and ignored the 4th.call.The line manager called her 28 minutes later to say that he had spoken with Mr.R who alleged that the claimant had thrown the produce and that it was on camera. She denied it  and asked him to check the cameras but was dismissive towards her and treated her wit no dignity or respect. He told her go and apologise but she had done nothing wrong. The line manager rang her 10.07 asking her to put the bread in the shop and 2 minutes later called again to say he had told Mr.R to stay away from her.

In her direct evidence  the  claimant said she felt she was being treated like an animal  - she had been on the road since 3.00a.m. The manager of the shop asked her “Was she thick?” She put in the bread , finished her run , went home and broke down again.   She was contacted by Ms.JT on the 13th.November .The claimant said she explained what happened and Ms.JT said the line manager should have listened to her side of the story before he made a decision on the matter. She was advised she would have to fill out an exit interview and was told not to make a final decision and take a few days to think about it – the claimant agreed and following a few emails between the claimant and HR  was given to 10.00a.m. on the 15th.Nov. to make her decision . The claimant submitted that she emailed at 8.00am. on the 15th.Nov. saying she would stay – she received a reply at 17.19 – the claimant submitted that Ms.JT had reneged on her word and told her there was no job for her. The claimant submitted this was very unfair.

The claimant said she had agreed with Ms.JT to hold off on making a decision – she asserted that Ms.JT went out of her way to ring her to find out what had happened .The claimant charted the chronology of exchanges between her and her line manager and the HR manager Ms.JT .She was adamant that she was advised by HR to hold off on making a decision until the 15th.Nov. and she – i.e. the claimant undertook to wait until 10.00a.m. the following Wednesday.The claimant submitted that Ms.JT went out of her way to ring her to find out what had happened at the weekend.

When asked under cross examination  by the respondent’s representative if Ms.JT had made any promises the claimant replied that she was advised not to make any harsh decisions and to revert to HR by 10.00a.m. on the Wednesday. When asked if she had any evidence that she was asked by HR to reconsider her position the claimant replied that she did not record the phone call. When asked if the Hr Manager made any promises during the phone call , the claimant replied that Ms.JT said to her not to make any harsh decisions.

It was put to the claimant that when Mr.AJ called to her on the 11th.November and tried to convince her to work her notice , she refused to engage – the claimant responded I didn’t refuse – I was in bed asleep and he came for the van keys. The claimant said that after he took the van he made no further contact with her. The claimant said Mr.AJ should have listened to her side of the story. The claimant reiterated her recall of the exchange with the Shop Manager that morning  and alleged she was asked “Was she Thick? She recounted her efforts to contact the line manager and said her line manager was able to call the shop. The claimant said her line manager showed her  no dignity or respect and was not there to support her. The claimant reiterated that Ms. JT told her the line manager should have listened to her side of the story and told her not to make any harsh decisions.

In response to questions put to the claimant on mitigation of loss , the claimant  said there she  had received no social welfare payments , that she had been in employment from the 20th.Nov. 2023 – 19th.Jan. 2024 .Her net earnings were €3809.93 and she had applied for approx. 10 jobs.She had obtained work in a Nursing Home but an issue arose relating to her qualifications and she was obliged to undertake a full time course Level 5 course .

The claimant denied that she was aware of the company grievance procedure and asserted that she never received the company handbook.

The claimant said that her line manager never said he would investigate what happened – she was aggrieved with the manner in which the shop manager told her to stack the bread. She said when she was asked to serve her notice she said she was very upset – it was a spur of the moment. When asked about previous threats to resign, she said she had   referred to getting a run of her own   when she was temporarily assigned  to Ballinasloe .The claimant denied that she had threatened to resign on any other occasion.

In summing up the claimant said that her line manager had taken sides and arising from which she saw no point in pursuing the matter.

I have reviewed the evidence presented at the hearing and taken account of the authorities relied upon by the respondent

The first matter to consider is whether or not the claimant had the protection of the Act in terms of her length of service with the respondent .This date establishes the end of an employee’s length of continuous service and hence the qualifying period  of service for a complaint. The claimant maintains that she commenced employment with the respondent on the 14th.Nov. 2022 and that she was dismissed from the employment on the 15th.Nov. 2023 – the claimant described her actions of spur of the moment. The respondent concurs with the claimant’s commencement date but asserts that the claimant resigned of her own volition on the 11th.November 2023.

 Legal precedents caution against heat of the moment resignations. Best practise provides that an employee is allowed to come back to at least discuss the case when tempers are cooled.

 I consider the provisions of Labour Court Decision EED044 Shinkwin & Donna Millett to be particularly instructive in relation to the matters in dispute in the instant case .

 The Court first considered if the complainant’s apparent resignation ever took effect. “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”.

 In Shinkwin the Labour Court referenced an extract from  Dr.Mary Redmond in her book Dismissal Law in Ireland  as follows :

In her book Dismissal Law in Ireland, Dr Mary Redmond wrote as follows at paragraph [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.”

The Court found that that there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered. InKwik-Fit (GB) Limited v Linehan [1992] IRLR 156, the following passage appears at paragraph 31:-

• “If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (being jostled into a decision) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] IRLR 313). These we refer to as “special circumstances”. Where special circumstances arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances” the intention to resign was not the correct interpretation when the facts are judged objectively.”

In Martin v Yeoman Aggregates Ltd [1983] IRLR 48the following finding of the EAT is recited in the headnote:-

“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”.

The Court went on to reference “ persuasive authorities on the law applicable to cases such as this.They also contain sound principles of good employment practise.  An employee may make a decision which is not fully informed because they are not in a position to fully evaluate their options or they may act on a misinterpretation of something which is said or done . Where the situation is still retrievable it would be unreasonable for an employee to be denied an opportunity to recant once the true position becomes clear”.

The Court refenced   approaches by the EAT in this jurisdiction  in claims of unfair dismissal.” InKeane v Western Health Board (UD 940/1988)the claimant was aggrieved at the manner in which she was treated by a more senior employee with whom she was assigned to work. She was unaware of the existence of a procedure by which she could have processed her grievance. The claimant believed that the difficulties and stress which she was experiencing presented her with no alternative but to resign. When she became aware of other industrial relations options she sought to withdraw her resignation.

The Tribunal took the view that the claimant's resignation, viewed against the background in which it was made, could not be considered a fully informed decision or notice by her to terminate her employment. They were of the opinion that the resignation was tainted by reason of the confused state of the claimant’s mind at the time the resignation was proffered. The Tribunal concluded that in the circumstances of the case a reasonable employer would have allowed the claimant to revoke her notice and the respondent’s refusal to consider doing so amounted to a dismissal.

On the basis of these authorities, it seems clear that an employee may withdraw a notice of resignation where special circumstances exist relating to the context in which the decision to resign was taken. The resignation must be withdrawn within a reasonable time which will probably be quite short. The test of reasonableness is an objective one decided in the circumstances of the case (Kwik-Fit (GB) v Linehan). It is also clear from the authorities that where an employee freely and deliberately decides to resign and subsequently changes his or her mind, the employer is under no obligation to accede to a offer to withdraw the resignation or to even to consider such an offer”.

In the instant case the claimant set out the backdrop to her decision to “Quit” – she elaborated upon her exchanges with the store manager and on her attempts to make contact with her line manager. She  submitted that  felt she was treated like an animal with no dignity or respect culminating in her what’s app message to her manager that evening confirming that she quit and was finished that day. The claimant gave evidence of feeling desolate and unsupported and her evidence was convincing. She was contacted on the following Monday by HR about the completion of an exit interview .The claimant’s evidence was that she was told my HR that her line manager should have listened to her side of the story and that she should not do anything harsh. Her evidence was that she was told by HR not to make a final decision and to take a few days to think about it. This evidence was contradicted by Ms.JT- HR Generalist- who submitted that her conversation was about the exit interview – ultimately  MsJT conceded that she may have said “in passing” that  the claimant’s   line manager should have listened to both sides of the story . MsJT was unable to explain the context of a follow up whats app exchange between the parties in which she responds to the claimant’s enquiry about the chances of a pay rise and  was unable to clarify why at that point she did not advise the claimant that she no longer had a job. The time line of events and the chronology and content of the whats app exchanges supports the claimants version of evidence and consequently I prefer her evidence. Accordingly , I consider that it was reasonable for the claimant to believe that she was still in the employment of the respondent by virtue of the understanding  that she  believed she had with Ms.JT that she had a few days to reflect on her decision .Taking all of the foregoing into account , I find that the claimant was dismissed on the 15th.November 2023 when advised as follows by MsJT  on What’s app :

“As stated previous I wasn’t aware that you had given A your notice in writing .A had told me you had  given notice but you had given it in writing.

As far as we are concerned it isn’t a dismissal  you resigned of your own free will.

I will arrange with payroll for any payments owed to you”.

The claimant responded as follows :

“The only way to give notice is in writing is it?So you knew I’d given notice but didn’t know I’d given it.Not very fair to lead me on giving me the option to stay and then renege on it.”

While I acknowledge the assertions of the respondent’s witnesses that they  would not have the authority to negotiate with the claimant on her employment status at  that time , the claimant ‘ s assumption that they were representing management was not unreasonable.

In all of the circumstances  , I find  that the date of dismissal was the 15th.Nov. 2023  and consequently the  claimant had the requisite period of service to have locus standi under the Act .

 I find that a reasonable employer would have allowed the claimant to revoke her resignation and their refusal to do so amounted to a dismissal. 

The respondent effected the termination of employment without any investigation and without adherence to fair procedures .Consequently I am upholding the complaint of unfair dismissal. However , I find that the claimant contributed significantly to her own dismissal  particularly with respect to her unwillingness to work her notice period and I am taking this into account in the award of compensation.

“

I require the respondent to pay the claimant €3,500 compensation.