Resignations - Straight Forward or Cause for Concern?

Peninsula Team

July 10 2012

An Irish Times article today highlighted the recent decision of the Harbour Master of State-owned Dún Laoghaire Port Company to resign his position after one year in the role. Captain Frank Allen left the company at the end of June, and his brief had been to help revive the harbour’s fortunes and attract cruise liners to Dún Laoghaire. His resignation has prompted the Company to fill the position as this is a statutory position  which all Port Companies are obliged to fill. However a resignation can throw a Company into disarray as if no succession plan is in place, as the Company may need to scramble to fill a role or position. The resignation itself however can also pose problems and Employers should be wary in flat-out accepting a resignation. As a point of law resignation of an employee is not a dismissal as it may be withdrawn with agreement by the employee, where it becomes difficult is if there are contentious grounds to the resignation, or if the employee wishes to withdrawn the resignation, and the Company does not agree, then a dismissal will occur. The first step for any employer is to ensure that any resignation is confirmed in writing by the Employee. This is important as a verbal resignation cannot be relied upon, and could be said to be given in the heat of the moment. In the case of Sothern v Franks Charlesly & Co. (1981) IRLIR 278, the employee was said to have been "immature" and that the decision to resign was taken in the heat of the moment , and thus not an effective resignation.   The second step is to ensure there are no underlying issues provoking the resignation. This is important to avoid a potential issue of constructive dismissal.  Should there be any underlying issues the Employer should seek to resolve these before accepting any resignation, either by offering the employee access to the Company Grievance process, or by informing the employee of the Company bullying and Harassment policy. The employer should also offer the employee the opportunity to reconsider their decision as the case of McCarthy v Gary O'Donovan (UD 2009/154) illustrates. here the employee made a throwaway comment and the employer took this to mean he had resigned. The employee was given no opportunity to reconsider his options or explain himself and the Tribunal viewed this as a dismissal and awarded €22,000 to the employee. The third step is to view the resignation in context. On the face of it a resignation may seem straightforward but when viewed in context may present issues. In the case of Maxwell v Coruscate Ltd. (t/a Glenview Hotel) (1992) ELR 122, the employee was a chef and told to get out of the kitchen,a nd he asked for his p45. The company took the view he resigned and when he went back some days later to discuss this the Owner said there was nothing he could do, and the head chef stated he did not want him back. The tribunal took the view he was dismissed from his position. The final step is to confirm the Company's acceptance of the resignation. This is important to avoid any future claims, as merely issuing the P45 is not enough to confirm a resignation, as the P45 is only a tax document. The resignation must be confirmed in writing by the Employer, with the end date of the employee included also, in order to have a complete paper trail by which the Company can argue against future claims. The case of HSE South v Dr Robert J Gordon DET No FTD1123, illustrates the importance of an employer confirming the intention of the Employee to resign or their own (the Employer's) intention to accept a resignation. It can be a straightforward process where there are no underlying issues and the employee is amicably parting ways with the Company, however the issues occur where the employee maintains the "had no option but to resign" or "couldn't stand working there any longer". the four simple steps above should allow an employer to reduce any liability or damage stemming from a resignation of an employee.

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