by Anne O’Connell, Founder and Principal at AOC Solicitors
Patricia Groarke v Pat The Baker (ADJ-00048826) is a decision of the Workplace Relations Commission (“WRC”) in a case under the Unfair Dismissals Acts 1977-2015 (the “Acts”) which concerned the Complainant’s resignation and the employer’s refusal to permit her to withdraw her resignation.
The Complainant started working for the Respondent on 14th November 2022 as a Van Sales Driver. This role involved delivering bread to various locations and placing bread in the allocated space in the stores. In her WRC Complaint Form the Complainant described an upsetting incident that occurred on 11th November 2023, following which the Complainant resigned. On 11th November the Complainant found another company’s produce on a shelf she regularly used in SuperValu. The Complainant submitted that the manager of the shop, “Mr R”, acted in a belittling way towards her and told her the shelf was never hers. She alleged Mr R had asked “was she thick”. She tried to call her line manager four times. The Complainant’s account, and the Respondent’s account, of the subsequent call differs. The Complainant described her line manager ringing her back 28 minutes later stating that he had spoken with Mr R, who alleged she had thrown produce and that he had it on camera. The Complainant contended that she was told to apologise to Mr R, even though she denied that this had occurred. In her evidence before the WRC, the Complainant said she felt she was being treated like an animal, with no dignity and respect, after being on the road since 3am.
However, the Respondent submitted that her line manager rang the Complainant and convinced her to leave the location, continue her route and told her that he would investigate the matter. The Complainant sent a WhatsApp message later that day submitting her resignation. The Respondent described the following exchange; that her manager tried to contact the Complainant twice and then asked the Complainant to call him. After the Complainant’s refusal, her line manager asked whether the Complainant was going to work her notice period. The Complainant responded “I’ve quit not handed in my notice” and her manager asked “so that is that, you have finished as of today?” The Complainant replied yes.
The Complainant gave evidence that she was initially given an opportunity to reconsider her position for a few days by HR, however this was subsequently withdrawn. That “Ms JT” from HR had reached out to her on 13th November and the Complainant agreed to hold off making a final decision until 15th November. The Complainant emailed on 15th November to say she would stay however she was told there was no job for her. Therefore, the Complainant argued that she was unfairly dismissed. The Complainant was asked under cross-examination by the Respondent’s representative whether she had any evidence that she was asked by HR to reconsider her resignation and the Complainant responded that she had not recorded the conversation but that she was asked not to make any harsh decisions.
Conversely, the Respondent submitted that the WRC Adjudicator had no jurisdiction to hear the complaint as the Complainant did not have the requisite one year of service to bring a claim under the Acts, having started her employment on the 14th November 2022 and resigned on 11th November 2023. The Respondent also disputed that there was a dismissal at all, that the Complainant had resigned of her own volition. Ms JT gave evidence that she reaches out to staff who resign as part of a standard procedure to conduct an exit interview, inform payroll of any outstanding monies due, etc. She denied giving false hope to the Complainant, that there may have been a misunderstanding.
Decision:
The Adjudicator considered some of the case law in this area in coming to her decision, noting that it is best practice to allow an employee to come back and discuss a resignation that was given in the heat of the moment, after tempers have cooled. The Adjudicator examined and quoted extensively from the Labour Court’s decision in Shinkwin v Donna Millett (EED044) where the court considered whether a resignation had taken effect. The Labour Court commented that:
“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.”
However, the Labour Court acknowledged that there are circumstances where a resignation may be called into question. It referred to the decision in Kwik-Fit (GB) Limited v Linehan [1992] IRLR 156 and noted special circumstances may exist where it would be unreasonable for an employer to accept a resignation. In addition, the Labour Court referred to the EAT decision in Keane v Western Health Board (UD 940/1988) in which the employee had resigned not knowing that there was a grievance procedure and sought to withdraw her resignation when she became aware of other industrial relations options to address the issue. The EAT held that her decision “could not be considered a fully informed decision” and the complainant’s resignation was “tainted by reason of the confused state of the claimants mind at the time the resignation was proffered”. The Labour Court stated:
“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”.
On the basis of these authorities the Adjudicator considered the context of the Complainant’s resignation in this case and found the Respondent acted unreasonably by not allowing her to revoke her resignation. The basis of the Adjudicator’s decision was not that the resignation itself was not clear and unambiguous, but it was the subsequent communication by HR to the Complainant giving her time to reconsider her decision.
The WRC Adjudicator, Emer O’Shea, formed the view that a reasonable employer would have allowed the Complainant to revoke her resignation and the Respondent’s refusal to do so amounted to a dismissal. The Adjudicator found that the date of dismissal was 15th November 2023, meaning the Complainant had the requisite period of service to bring a claim under the Acts. The fact the Respondent did not adhere to any procedures in affecting the dismissal made the dismissal unfair, however the Adjudicator found the Complainant “contributed significantly to her own dismissal” and was critical of the Complainant’s unwillingness to work her notice period. An award of €3,500 in compensation was ordered to be paid to the Complainant.
Takeaway for Employers: Employers should not only be cautious of resignations given in the heat of the moment but all subsequent communications with the employee after the resignation. The employee is this case confirmed that she was not willing to work her notice and had given her notice later on the day of the incident and not at the time of the incident. Furthermore, when later asked to reconsider her resignation she sought a pay rise to do so. If the communication finished there, it is likely that the resignation would have stood. However, the detrimental part was by HR then offering the employee further time to reconsider her decision and when the employee sought to withdraw her resignation within this period and HR refusing to allow her to do so was where the resignation became a dismissal. HR should have checked before offering her more time, when the employee accrued one year’s service. The resignation itself was a “clear and unambiguous” resignation of employment but the subsequent communications resulted in the employer being liable. This decision is helpful in that it goes through useful authorities in respect of resignations being withdrawn and when it is reasonable for an employer not to accept such a withdrawal.
Link – https://www.workplacerelations.ie/en/cases/2024/june/adj-00048826.html
About the author
Qualified as a Solicitor in 2001 and as a New York Attorney, Anne O’Connell, the Founder and Principal of AOC Solicitors, specializes in Employment Law. She holds an LLB Degree together with Diplomas in Employment Law and International Litigation and has practiced with the Chief State Solicitors Office and two top tier Irish Law Firms. Anne has acted in the largest international case taken by Ireland to date and also acted in a European case that led to the amendment to Ireland’s Constitution. Anne advises large multinational companies, semi-state companies, small businesses and employees in all areas of employment law, particularly issues that were likely to become contentious.
With over 19 years of employment law experience, Anne formed her own specialist boutique Employment Law Firm in 2017 and thus Anne O’Connell Solicitors was born.
Anne is very passionate about what she does and becomes vested in finding solution to her client’s issues.
