WRC finds that hastily accepted resignation was unfair dismissal
In a recent case before the Workplace Relations Commission (WRC), an Adjudication Officer found that the Claimant had been unfairly dismissed. The case centred around a text message which the Claimant sent to his former employer stating that he was “finished as of now”.
The Claimant stated that his employment commenced with the respondent in 2002, while the respondent asserted that the employment commenced in May 2004.
In December 2021, COVID-19 was ongoing. The company Health and Safety Officer issued an instruction requiring all staff to take an antigen test each morning before coming to work and the results were to be texted to the Health and Safety Officer. The claimant believed that this was an extreme requirement and argued that it was outside of the HSA COVID-19 rules.
The Claimant rang his Manager on 19 December 2021 and said that he would not be coming to work due to the requirement to take an antigen test. The Claimant followed up with a text message which stated: “Ok that’s me and Lee finished as of now.”
The Claimant stated that this text was never intended to be a resignation especially after approx. 20 years of service with the Respondent.
The Claimant argued that the respondent sent a letter on 28 December to an address which was not his well-known address and that the letter was incorrect. He added that it had never been his intention not to return to work.
He also pointed to further email correspondence with the Respondent on 16 January 2022 in which he had advised the Respondent that he had not resigned.
The Respondent argued that the text from the claimant on 19 December was a clear resignation. Moreover, the Claimant did not make himself available for any on call schedules over the Christmas period and did not come in to work in January 2022. The Respondent further noted that the Claimant could have easily come back into work on 3 January and rectified things with the Manager.
In relation to the antigen testing requirements in operation in December 2021, these were an essential safeguard for both staff and customers according to the Respondent.
Regarding the letter that was issued to the Claimant on 28 December 2021, the Respondent submitted that it had been sent to the address that was on file for the Claimant.
There had been further email correspondence with the Claimant between 16 and 20 January during the course of which the Respondent said the Claimant wrote “As far as I’m concerned, I’ve been waiting at home until I’m told I no longer need to take a daily antigen test.”
On 20 January, following email correspondence with the Claimant, the Respondent replied to the Claimant confirming the ending of the employment.
Adjudication Officer’s Decision
In reviewing whether the situation amounted to an unfair dismissal under the Unfair Dismissals Acts 1977 to 2015, the Adjudication Officer considered the text message which was sent from the Claimant to the Respondent. The Respondent took this text, in conjunction with the phone conversation with the Manager on the same day as a resignation from the Claimant. The Respondent confirmed this understanding in a letter dated 28 December.
The Adjudication Officer did note that the Claimant did not make himself available for on call work over Christmas and did not come back to work on 3 January. There was no communication with the Claimant until 16 January. On 20 January, following email correspondence with the Claimant, the Respondent replied to the Claimant confirming the ending of the employment.
The Adjudication Officer examined three key elements in this case. Firstly, whether the text of 19 December was a legally enforceable resignation and whether the Respondent acted too hastily in accepting this as a resignation. Secondly, whether the refusal of the Claimant to take a daily antigen test was unreasonable and the reasonableness of the antigen testing regime. Finally, the legal requirements for proper employment procedures in line with S.I 146 of 2000 were considered.
It was noted that in a case such as this where there is doubt regarding a resignation, follow up interviews would have been recommended.
Having reviewed all of the arguments, the Adjudication Officer found that the ending of the employment was not a resignation, but an unfair dismissal. The main reason for this decision was that no proper employment procedures were followed, and the letter dated 28 December was hasty. However, the Adjudication Officer referenced that in absenting himself from work, the Claimant contributed largely to the ending of the employment.
The claimant was awarded €18,500 in compensation.
Full case available below -
Case reference number: ADJ-00037060