Worker believed he was dismissed at later date
The Industrial Relations Commission (IRC) recently dealt with a case involving a worker who sought an acceptance of a late application of an unfair dismissal case due to a “constructive dismissal” by the employer.
In his argument, the worker said that the reason why the application was filed on a later date was that he was “on leave/working” even after his date of dismissal.
Confusion over employment termination
On 22 December 2022, the worker emailed the employer informing him of his desire to resign from the company as he could no longer hold his position “in good conscience.”
The email also stated the worker’s intent to tender his resignation at a date that the employer would choose.
Later that day, the worker met with the employer, and the latter suggested that the employment end two weeks from the resignation letter date.
“The [worker] indicated he preferred a later date, and the CEO agreed to consider this request,” the Commission said.
After the meeting that day, the employer informed the worker through a phone call that he did not agree to a later end date for the worker’s employment. Hence, the CEO decided that 6 January 2023 would be the worker’s last day of employment.
However, on 9 January 2023, the worker sent a message to the director of corporate services of the company saying, “As no general manager was in place after the Wednesday closure, my ‘resignation’ - as self-reported to OLG - could not be validly tendered or accepted, as you should appreciate based on my consistent advice.”
“For the time being, I will continue on annual leave as discussed in earlier emails,” the worker added.
Based on this email, the employer said that this was the first time it became aware that the worker took the view that his employment had not ended on 6 January 2023.
The employer also contended that the worker was not dismissed as it was his own initiative to resign, and such resignation was not a “constructive dismissal.”
Commission’s decision
After examining the case, the IRC found that the worker’s employment relationship with the company ceased on 6 January 2023.
The Commission further noted that the worker indeed resigned and left only the date of effect to be determined by the employer.
As to the reason for the worker’s application being out of time, the IRC said that being on leave /working until at least 20 January 2023 was not a sufficient and direct explanation for inaction between 20 and 27 January 2023.
“In totality, the applicant has not provided a satisfactory reason for the delay,” the IRC said. “Neither has he satisfactorily addressed the length of the delay, particularly in the context of the reason he has advanced.”
