Date of Resignation - Immediate Effect or Notice Period?

Constructive Dismissal Termination Date

When pursuing a claim for unfair dismissal, the date of dismissal can often be seminal to whether a claim progresses or not. Ordinarily, a complainant employee has 6 months from the date of the termination of employment to bring a claim to the Workplace Relations Commission.

If a complainant employee fails to bring the complaint within 6 months, it can often be extremely difficult for them to prove that there were extenuating circumstances justifying the delay.

A dilemma that faces many individuals who intend to bring a claim of unfair dismissal by way of constructive dismissal, is whether or not they should resign with immediate effect or give their notice period.

In general, an employee will need to demonstrate that conditions were so intolerable, they had no other option but to resign, if they are to pursue a successful claim of unfair dismissal by way of constructive dismissal. That being the case, they’re working their notice period, can often be indicative of a “tolerable” working environment. In short, if an employee is planning to bring a claim of unfair dismissal by way of constructive dismissal, it will hamper their case if they work their notice period.

Termination Date – Case Law

However, a case recently came before the Workplace Relations Commission (A Care Worker -v- A Care Provider ADJ00011215), in which the complainant resigned in the following terms: “I hereby tender my resignation with [the company] with immediate effect. In line with my notice period, my last working day will be 17 April 2017”. This resignation letter was submitted on 05 April 2017. The question to be determined by the Adjudication Officer of the Workplace Relations Commission, was whether the date of dismissal was 05 April 2017 or 17 April 2017.

If it was 05 April 2017, the complaint was lodged outside the 6 month limitation period provided by Section 8 of the Unfair Dismissals Act. If the date of dismissal was held as 17 April 2017, then the complaint was made within 6 months.

The respondent referred to paras 21.72 to 21.79 of Redmond on Dismissal Law, 3rd edition. It referred to Stamp v McGrath UD 1243/1983 which held that the reference to “date of dismissal” in section 1(b) [i.e. the inclusion of a contractual or statutory notice period] applied only to a dismissal by an employer and not where an employee resigns. In Stamp v McGrath, the EAT held that the employee was not able to count their contractual notice to bring the claim within the six-month limitation period. The respondent submitted that Stamp v McGrath applied to all cases of constructive dismissal, i.e. with or without notice. A notice period should be discounted in a case of constructive dismissal.

The respondent further relied on McManus v St Vincent’s University Hospital UD 2270/2011 which held “time starts to run from the date of termination … and in this instance the time started to run at the date the resignation is tendered, as was always intended by the claimant, and not disclosed on the P45.” The respondent relied on ADJ-00002571. In reply, the complainant relied on the definition of ‘date of dismissal’ in section 1(a), stating that the statutory date of dismissal was the 17th April 2017.

In assessing the evidence in this instance, the Adjudication Officer noted that this is not a case where the employee ends the employment relationship on one date and seeks to rely on a contractual or statutory notice period to hold that there is a later date of dismissal (as arose in Stamp v McGrath).

In this case, the complainant resigned “with immediate effect” and states “her last working day will be the 17th April 2017.”

In Shinkwin v Millett EED044, the Labour Court held:

“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. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.”

Termination Date - Unfair Dismissals Act

Section 1 of the Unfair Dismissals Act provides:

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973…”

Application

In respect of this preliminary matter, the Adjudication Officer decided that the date of dismissal was 17 April 2017 and the complaint was referred to the Workplace Relations Commission within the 6 month limitation period. By working her notice period and being paid accordingly, the termination date was 17 April 2017.

Based on the facts of this case, the Adjudication Officer awarded the complainant employee redress of €9,000.

There were many extenuating circumstances that gave rise to this successful claim of unfair dismissal by way of constructive dismissal. Most unusually, the complainant employee was successful in her claim despite serving her resignation letter and agreeing to work her notice period.



Further Information

For further information, please contact the author of this article, Barry Crushell.