Onus is on the Employer to Establish Genuine Resignation

by Anne O’Connell, Founder and Principal at AOC Solicitors

In the WRC case of Anatoliy Ludchenko v. Harp Renewables LtdADJ-00039137, the Respondent was found to be unreasonable to interpret the words used by the Complainant as words of resignation and the Complainant was found to have been unfairly dismissed. However, the Complainant’s previous threats to resign was taken into account as contributing to his dismissal and the compensation award was reduced accordingly.

The Complainant was a specialist welder who was employed by the Respondent from 22 June 2020. On 23 November 2021 the Complainant had become frustrated in relation to the work he was doing and he went to his Supervisor and stated that he was finished and that he no longer worked for Harp. The Supervisor stated in evidence that he asked the Complainant if he was sure and the Complainant confirmed. The Complainant finished working that day but he did not show up for work the following two days. On the afternoon of 24 November 2021, the Complainant attempted to apply online for sick leave but this was refused as the Respondent had already taken it that the Complainant resigned. The Complainant attempted to apply for sick leave again on 25 November but this was again refused for the same reason. The Complainant turned up for work on 26 November to be told by his supervisor that he did not work there anymore.

Evidence was given at the hearing that the Complainant had threatened to resign on a number of previous occasions in order to get a pay rise and he received a pay rise on each occasion.

The Complainant secured alternative employment on 16 February 2022 but on lower salary. He waited until 22 May 2022, being the last day of the six month time limit, to lodge his Unfair Dismissal claim into the WRC.

Decision: The Adjudicator found that the Complainant’s employment had been terminated by the Respondent on 23 November 2021. The Adjudicator held that the  Respondent was not reasonable in construing the words used by the Complainant on 23 November as words of resignation. He referred to the Complainant’s past record of threatening to resign and stated that the Respondent should have been more circumspect in dealing with the matter. The fact that the Complainant worked out the day (23 November) and sought sick leave on 24 and 25 November, indicated the words used were more in frustration than a rational, calm and premeditated expression of a desire to resign his position.

More importantly, the Adjudicator held that it is up to the employer to confirm a resignation, which must be clear and unambiguous. The onus is on the employer to take such steps as necessary to establish that there was a genuine resignation, for example, requesting the employee to confirm in writing that they wish to resign.  In this instance the employer failed to take those necessary steps.  Therefore, the Adjudicator found that this was not a resignation, but a dismissal, and in the circumstances, an unfair dismissal.

Regardless of this, the Adjudicator stated that it was not reasonable to use the threat of resignation as a tool to get pay increases.  He accepted the evidence that the threat of resignation had been used by the Complainant as a tactic to achieve this aim in the past. He stated that in this instance the threat backfired.  The Adjudicator held that some level of responsibility for the outcome of the interaction lies with the Complainant. Taking all of this into account the Adjudicator only awarded the Complainant five months’ pay as being just and equitable in the circumstances.

Takeaway for the Employers: It is vital to get confirmation of an employee’s resignation in writing and to ensure that the resignation is a genuine resignation. This decision makes it clear that the onus is on the employer and if the employer does not meet this onus then the resignation will be held to be an unfair dismissal.

Link  – https://www.workplacerelations.ie/en/cases/2023/january/adj-00039137.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.