Complainant

Respondent

Parties

Jason Govender

JMC Packaging Limited

Representatives

John O' Keeffe & Co. Solicitors

Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00062028-001

06/03/2024

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

CA-00062028-002

06/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00062028-003

06/03/2024

The complainant was employed from October 2009 up until 19th October 2023. He earned €7,732.51 gross per month. Initially he was employed in Sales and then as Operations Manager. The company is located in Armagh, Northern Ireland.

The complainant resigned from his position by notice on 19th July 2023 agreeing to work out his 3-month contractual notice. Within days, he tried to rescind his notice letter although this was not accepted by the company.

The complaints are unfair dismissal, minimum notice, and exceeding the 48 hour maximum working hours per week.

The respondent raised a preliminary issue of jurisdiction. Without prejudice, the respondent denies all complaints in full.

Prior to putting the complainant into evidence, his representative made a submission that he was entitled to make his complaints within this jurisdiction. He referred to case law and specifically, Mc llwraith v Seitz Filtration UD797-95 and the Rome Convention as authority that he could bring his complaints.

On the substantive case of unfair dismissal, he submitted that the onus was on the employer to investigate the circumstances of resignation particularly as the complainant was under stress at the time. He relied on Social Care Worker v Social Services Charity, ADJ-00039351 as authority for this.

Summary of Mr Govender, Complainant’s Evidence

The complainant gave evidence of his resignation notice letter of 19th July 2023, and the subsequent steps he took to rescind the letter. He said he was under stress due to two recent family bereavements. He wanted to rescind the notice and spoke to Mr Crawford, Machinery Sales Manager, on 20th July 2023 and he went looking for Mr Cullen, Managing Director on the same day. He met with Mr Cullen on 21st July 2023. He apologised to him for leaving the letter on his desk. He informed him that he did not want to leave, and he was under stress. He helped build the company and he knew he had made the wrong decision.

He said Mr Cullen did not want him to leave either. He was under the belief that his resignation letter was rescinded and there would be a meeting about moving forward.

He was working that Saturday as he was to meet a supplier travelling from Italy.

He said he continued to work as normal. When he received the letter of 9th August 2023 from Mr Cullen, he was shocked as it confirmed his resignation was proceeding and he was immediately being put on gardening leave.

On his work location, he said he worked mainly from home during Covid. Afterwards he could be 50% in the north and 50% in the south either travelling to customers or working from home.  Of late, he could be 3-4 days in the north. He would travel from his home in Kildare at 7am to the office and would work through the day. He would stay up for some days during the week although was advised not to spend too much time in the north by the Chief Financial Officer.

The complainant was cross-examined by the respondent representative on his current earnings and when he sought alternative employment, as the complaint form said he was not in new employment. He confirmed that he had obtained new employment from 24th October 2023.

He was questioned on when he informed his employers that he was under stress. The complainant confirmed that when on gardening leave, he did not raise a grievance. He confirmed that he had stayed in the north and previously in hotels on some days mid-week.

Summary of Closing Submission

The complainant’s representative submitted case law and outlined the reasons why he could bring his complaints in this jurisdiction. He outlined that the complainant had helped build the company and he had a sense of grievance due to the way he was not allowed to rescind the letter.

The respondent representative submitted that the complainant was predominantly working out of the office in Armagh as Operations Manager. He said evidence would be given that he stayed in the north mid-week to ensure he could work day to day in his role. He submitted that the contract was governed within Northern Ireland and that he was employed within that jurisdiction. He submitted that other staff worked in sales in the Republic.

Without prejudice to the objection on jurisdiction, he submitted that the complainant resigned and his resignation was accepted. He did not raise a grievance even though he was invited to do so.

He worked some of his notice up to 9th August 2023 then he was put on immediate gardening leave.

He submitted that the complainant had not set out specific details of hours worked. The complainant had not provided sufficient detail on alleged breaches of the Working Time Act.

Summary of Mr Crawford Evidence

Mr Crawford outlined his role as Machinery Sales Manager. He confirmed that he did not attend a meeting on 21st July 2023 with the Managing Director and complainant as per the complaint form.

He confirmed that he had informal conversations with the complainant. He said the complainant had previously threatened to resign and he advised him that if he did it again, it could have consequences. He was aware that the complainant had later accepted another job and he then asked Mr Cullen to talk to him.

Under cross-examination from the complainant’s representative, he confirmed that he was not at the formal meeting on 21st July 2023 although the complainant may have discussed this with him afterwards.

Summary of Mr Cullen’s Evidence

Mr Cullen confirmed his role as Managing Director for 30 years. He confirmed the only company site was in Armagh. The complainant had been employed for 14 years after initially starting in sales.

He said the complainant’s place of work was the main site as he was Operations Manager and he ran production day to day. He employed 35 staff and nobody worked from home. No sales staff worked from home except some engineers in the south.

On 19th July 2023, he opened the envelope and read the resignation letter which was left on his desk. He then had a meeting with the Chief Financial Officer and discussed what they were going to do. It was decided to accept the resignation and restructure the complainant’s role.

He did not discuss this with the complainant and a letter accepting the resignation was drafted.

He arranged a meeting with the complainant on 21st July 2023. He gave him the letter accepting the resignation and told him to go home. He said he told him they were going to restructure. He confirmed that the complainant tried to rescind the resignation letter.

After the meeting on 31st July 2023, a further letter on the details of the resignation issued on 9th August 2023. The complainant was allowed to use a company car up to 19th October 2023 out of goodwill. He confirmed that the complainant did not submit a grievance.

There was no discussion after 9th August 2023 on the complainant coming back until he met the complainant in early November 2023. This was after he had started work elsewhere. At the meeting the terms of his new job were discussed and the terms required if he was to return to the company. There was no agreement and no commitments from either side.

He outlined in general terms the complainant’s working schedule.

Under cross-examination, he clarified that the complainant worked on some sales accounts in the south and that he would have travelled to Dublin on some occasions. He estimated his working time in the north as 75%.

He was asked about the email sent by the Chief Financial Officer to the complainant advising him not to be in the north for any significant period. He replied that this was advice although the complainant still attended the office in the north.  He accepted that the complainant was paid through the south from the beginning of his employment.

He confirmed that it was decided to restructure when the complainant resigned and that he had been a decent and honourable employee.

Summary of Closing Submission

The respondent representative submitted that his time working in the north was 75% and the appropriate tribunal was in the north. He claimed that the working time act complaint was out of time. There was no testimony or evidence that the resignation was rescinded by the company.

The complainant if successful in an unfair dismissal claim could not be awarded compensation as he had fully mitigated his loss by commencing alternative employment very shortly afterwards. 

Preliminary Issue of Jurisdiction

The function of an adjudication officer is prescribed by section 41(5) of the 2015 Act and in certain cases by the relevant legislation under which the claim has been referred.  The Irish legislature has conferred jurisdiction on adjudication officers to adjudicate under certain pieces of Irish legislation.

Section 2(3) of the Unfair Dismissals Act 1977 which provides that:-

“This Act shall not apply in relation to the dismissal of an employee who, under the relevant contract of employment, ordinarily worked outside the State, unless:

(i)               he was ordinarily resident in the State during the term of the contract; or

(ii)              he was domiciled in the State during the term of the contract and the employer;

(I)               in case the employer was an individual, was ordinarily resident in the State, during the term of the contract, or

(II)              in case the employer was a body corporate or an incorporated body of persons, had its principal place of business in the State during the term of the contract.”

I have considered the evidence of both parties and particularly the amount of time the complainant worked from home and/or within the Republic of Ireland. There was a conflict of evidence on the amount of time spent between the two jurisdictions.

The initial contract of October 2009 states under ‘Place of Work’ that-  

‘Your shall work at the employer’s offices at …..Dungannon, County Tyrone and at such other places as the satisfactory discharge of your duties shall require or as the employer from time to time determine and shall require you to travel throughout the island of Ireland to attend customer premises in the performance of your duties.’

The contract also confirms the complainants address as being within the Republic of Ireland. Although the complainant’s role and duties changed over the years, it was clear from his testimony that he retained certain accounts within the Republic of Ireland. Both parties accepted that the initial contract was not superseded. The complainant’s representative asserted that as he was paid in euros and paid tax in the Republic that this was indicative of an acceptance that he was ‘ordinarily resident in the state’. Reliance was placed on case law and particularly Mc llwraith v Seitz Filtration UD797-95.

Apart from the domestic law outlined, the complainant’s representative is also relying on international law and particularly ‘The Convention on the Law of Applicable to Contracting Obligations’, otherwise known as the Rome Convention. In particular where there is a conflict on jurisdiction there is a reliance on Article 7 as invoking the mandatory rules which give the complainant the benefit of the law of another country where there is a close connection.  

The respondent representative relies on the contract of employment as it is headed ‘In compliance with the Employment Rights (Northern Ireland) Order 1996’. This is repeated at the end of the grievance procedures in terms of statutory recourse on an employment dispute. Reliance is also placed on the location of the respondent’s offices in Northern Ireland.

Having considered matters, I decide that I have jurisdiction primarily due to the fact of the complainant’s residence in the Republic. His place of residence was always on notice to his employers and is included on the contract of employment. Although the complainant spent some time in accommodation in the north during the week, the fact that he always retained client accounts in the south supports the premise that he was ordinarily resident in the State during the term of the contract.

Although the contract refers to the Employment Rights (Northern Ireland) Order 1996,  there is no definitive contractual agreement on jurisdiction. Therefore, the Rome Convention is persuasive in ensuring an adequate remedy for the complainant. Recital 23 of Rome 1 provides:-

“As regards contracts concluded with parties regarded being weaker, those parties should be protected by conflict-of-law rules that are more favourable to their interests than the general rules.”

As I have decided that I have jurisdiction for the reasons outlined, I will now proceed with the substantive complaints.

Unfair Dismissal Complaint

The Law

Section 6(1) of the Unfair Dismissals Act provides:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The issue of whether there was a dismissal is in dispute. The respondent relies on the resignation letter of the complainant. The complainant outlined in testimony that he was under stress at the time and he quickly sought to rescind the letter.

In these circumstances, it is worth quoting from Redmond on Dismissal Law, Third Edition-

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

This is then followed by commentary on the two cases of Geraghty and Keane, before concluding-

22.25 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 complainant representative relies on Social Care Worker v Social Services Charity where special circumstances existed, the employer was required to investigate and allow the resignation to be retracted. This case was appealed to the Labour Court, Saint John of God Community Services v Oyegoke UD/23/34 who upheld the decision after a thorough investigation of whether ‘special circumstances’ existed. The court having examined the case law and sequence of events concluded that special circumstances were at play both prior to and after the letter of resignation was submitted.

Applying the case law to the circumstances of this case, there was limited testimony on events prior to the date of resignation on 19th July 2023. The complainant gave testimony that there had been two recent family bereavements.

The resignation letter reads as follows-

Dear Jim,

It is with great regret that I write this letter of resignation.

I have dedicated myself to the business whilst remaining more loyal to the company than I have been to my family, and having sacrificed a lot to help build the business to what it is today, I have tried to motivate myself and continue with that work ethic for the good of the company, my colleagues and of course to eventually gain some reward as promised thoughout the years. However, in the current climate I feel demotivated, isolated and have reached a point where I can only absorb so much humility.

I sincerely care for the business, you, and many of my colleagues and genuinely regard you as a great friend and mentor over the years and without your drive and influence I could not have grown to the person I am today.

I wish you and your team every success with the future of JMC Packaging and GSH.

Please accept this letter as notice of my resignation. I will see through my notice period of 3 months in a professional manner.

Yours Sincerely

A meeting then took place between the complainant and Mr Cullen, Managing Director on 21st July 2023. The complainant alleges there was agreement that his resignation letter was rescinded. The respondent denies there was an agreed rescission although accepts the complainant raised this issue.

There was no doubt that the resignation was proceeding after a meeting with the Chief Financial Officer on 31st July 2023. The complainant then wrote an email of 4th August 2023 seeking a meeting.

On 9th August, 2023, a comprehensive letter then issued to the complainant on the terms of his departure which stated that he will be on garden leave with immediate effect up to the termination date of 19th October 2023. The letter also outlined that he could air any concerns through the grievance procedure up to 15th August, 2023.

There was no further engagement until his solicitor wrote to the company on 13th October 2023.

The issue, in accordance with the case law, is whether special circumstances existed, whereby a reasonable employer would have allowed the complainant to retract the resignation letter. In both Keane and Saint John of God, it is apparent that special circumstances existed. In Keane, the complainant was unaware of the grievance procedures initially and then the employer resisted any retraction due to their blanket policy. In Saint John of God, the special circumstances involved a transfer which was being resisted by the complainant. The complainant also submitted a medical report, as evidence of the stress she was under at the time.

These cases can be distinguished from this case. The special circumstances here are that the complainant was under stress at the time. The first formal reference to stress was in an email of 4th August 2023. This was not followed up with a medical report, despite the fact that the respondent invited the complainant to air any issues in the letter of 9th August 2023. The complainant was still employed at this stage (commencing garden leave) so there was a protracted period to flag issues or special circumstances which were not availed of.

There was no apparent trigger event leading up to the resignation. The complainant was employed in the senior role of Operations Manager. He would have had some knowledge of the possible consequences of his resignation letter. Although there were family bereavements, there is an absence of evidence on special circumstances such as a medical report on his decision-making or judgement being impaired. Mr Crawford gave testimony on informal conversations with the complainant on the possible consequences of a resignation notice. The absence of a medical report though meant that the employer was not on notice of any impediment to his decision making.

Although the employer accepted the resignation, the complainant was invited to air any issues or submit a grievance which he did not avail of. I do not agree that the responsibility is on the employer to investigate the background to a resignation, in a situation where no apparent special circumstances were obvious. The employer was also in receipt of a clearly worded resignation letter.

For the reasons outlined, I am satisfied that sufficient special circumstances did not exist or were not made known to the employer. Therefore, under similar circumstances, a reasonable employer would not have considered it appropriate to investigate further with a view to retracting the resignation.

I decide that it was not a dismissal as the complainant resigned from his position. I decide the unfair dismissal complaint is not well founded as the complainant was not dismissed.

Minimum Notice and Terms of Employment Complaint

As I have decided that the complainant resigned from his employment and was not dismissed, it follows that the issue of entitlement to a minimum notice period does not arise.

I decide that the Act was not contravened.

Working Time Act Complaint

The complaint form was received by the WRC on 6th March 2024. The cognisable period under which  a breach of the Act could have occurred is from 7th September 2023. As the complainant was not present in the workplace during that period, I decide that there could not have been a breach of the Act. I decide that this complaint is not well founded.

CA-00062028-001 Unfair Dismissals Complaint

I decide the unfair dismissal complaint is not well founded as the complainant was not dismissed.

CA-00062028-002 Minimum Notice and Terms of Employment Complaint

I decide that the Act was not contravened.

CA-00062028-003 Organisation of Working Time Complaint

I decide that the complaint is not well founded.

Dismissal in dispute