The Employment Relations Authority has recently accepted an employee’s claims of unjustified dismissal and disadvantage after he was forced to resign. The Authority ordered the employee to pay over $27,000 for their breaches.

The employee was unhappy with some of the conditions of his employment. The employee and his co-workers were not provided with paid rest and meal breaks during their shifts, even after the issue had been raised with management.

The employee later raised with his employer a number of issues he was having at work. After refusing meetings to address these issues, the employee sent an email to his employer saying again that he was “wanting to hand in” his resignation.

The employee sent another email later the same day stating he would think about handing in his resignation as it was a “knee jerk” reaction.

Eleven days later the employer told the employee that they accepted his resignation. The employer told the employee that once he had resigned, the employer did not have to reverse that, even if the employee changed their mind.

The employee disputed the employer’s position, saying he had not actually resigned. The employer declined to accept that argument, and reiterated that they accepted the employee’s resignation.

The Authority had to determine whether the employee had been unjustifiably disadvantaged by the employer’s failure to give paid rest breaks, and/or unjustifiably constructively dismissed by their accepting his email as a resignation.

For an unjustified disadvantage claim, the Authority must consider whether the employer’s conduct disadvantaged the employee in his employment. In this case, the Authority decided that there was no legal justification for the employer’s failure to provide the required paid rest and meal breaks.

This failure was not an action “an employer acting fairly and reasonably could have taken”. The Authority therefore decided that the employer had unjustifiably disadvantaged the employee in his employment.

For an unjustified constructive dismissal, the Authority must determine whether the employer’s actions had effectively meant that the employee was forced to resign. This requires looking at whether the employee has resigned.

The Authority decided that on an objective reading of the employee’s email, a person could not think the employee had a present intention to resign. The words, “I am wanting to”, are similar to, “I am going to”. This is not an immediate intention, and therefore cannot be taken as an employee’s official resignation.

The second email from the employee, stating that he needed time to think about it, was further evidence that the initial email was not his official resignation. The Authority decided that any reasonable person would not read the email as the employee’s resignation. By forcing the employee to then resign, the employer constructively dismissed him.

The Authority ordered the employer to pay $11,000 in wage reimbursements, as well as $1,800 in wage arrears. The employee was also awarded a total of $15,000 in compensation for hurt, humiliation, and injury to feelings.

It is very important to be aware of your obligations when dismissing an employee, or consider that you are merely accepting a resignation. If you are confused about these obligations, it pays to seek advice from a professional with experience in the area.


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Alan Knowsley and Hunter Flanagan-Connors