Did a dismissal occur?
Very often, the fact of dismissal can be in dispute. An employer may claim the employee resigned and the employee claim they were fired. How does the Workplace Relations Commission or Labour Court determine the fact of dismissal?
There can be no absolute rules about is, or is not, a dismissal and to a very large extent each case in which this point is argued requires to be determined on its own facts.
In the case of Connemara Marbles Ltd. v. Anne Marie Lally UDD2028, the Labour Court noted in a case where dismissal was in dispute, following an intense verbal argument between the parties;
“It goes without saying that, in such circumstances, it would have been better if both parties had paused and taken stock. The circumstances, in which neither was prepared to do so, led inevitably to a strong and angry exchange of words. It was in that state of anger that Ms. Keating dismissed the Complainant. She may or may not have said that the Complainant was ‘fired’. The dispute about that word is irrelevant. Ms. Keating accepted in evidence, to her credit, that a director telling an employee to leave and not to come back would be interpreted by most employees as having the meaning that they were being dismissed.”
By contrast, in Tom Maher v. Eugene Walsh UD683/1983, an employer had told an employee to ‘fxxk back to where you were’ and the worker had replied ‘fair enough, I’ll do that’. The Employment Appeals Tribunal concluded that just because an employer speaks sharply to an employee is not sufficient reason for the employee to walk away and assume that he has been dismissed.
The contrast between these cases highlights the absolute necessity to examine the detailed facts of every such case in order to form an opinion as to whether or not there was a dismissal as no two cases in such situations are identical.
In Coalquay Leisure Ltd. t/a Gold Rush Casino v Lavinia Untea UDD1730, the Labour Court concluded in that case that the complainant had resigned in temper when her employer refused to pay her for a shift that she had not worked.
In Parkboro Developments Ltd T/A Park Engineering v Mariusz Witkowski UD/18/135, the Labour Court reasoned that:
“A sharp exchange of words in a workplace does not usually provide a basis for the sundering of an employment relationship. Obviously, in certain instances it may do so but a relatively trivial disagreement of the sort described does not come anywhere near justifying dismissal in the instant case, in the view of the Court. Indeed, the only aspect of this exchange that elevates it above what might be termed normal run of the mill workplace disagreements is the fact that the Respondent failed to direct the Complainant back to his work and, instead, led him to believe that he was being dismissed.”
What the above case-law shows is that there is no single way to determine if someone resigned or whether they were dismissed. The determination will depend on the facts of the case, the exchanges between the parties and the behaviour of the parties after those exchanges.
