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Reinstatement Ordered Where Employer Refused Employee’s Request to Withdraw her Resignation

The case of A Social Care Worker v Social Services Charity came before WRC Adjudicator, Brian Dalton, in January 2023 under the Unfair Dismissals Acts. Based on the facts, regardless of the Complainant’s resignation, the Adjudicator held that this case was about a dismissal simpliciter rather than a constructive dismissal. He decided that reinstatement was the only fair remedy for the Complainant, even though she clarified in evidence that she would prefer compensation.

The Complainant in this case lodged a claim in June 2022 against her former employer due to its refusal to allow her rescind her resignation approximately ten days after it was first sent.  The Complainant claimed that her employer’s conduct amounted to an unfair dismissal. By way of remedy the Complainant had requested re-engagement, reinstatement or compensation.


The parties’ names were anonymised due to the personal and medical information disclosed through the hearing of the case.

The Complainant was a longstanding and highly qualified member of staff, having commenced employment with the Respondent on 1 January 2004.   The Respondent requested that the Complainant move to another placement.  The proposed change caused the Complainant serious concern as she has a chronic respiratory condition and she resisted the move based on that condition. She handed in her notice of resignation on 27th January 2022 and sent a copy of her resignation to another manager on 31st January 2022.  In her resignation email, the Complainant confirmed that she had given her decision a lot of thought.

However, after resigning the Complainant attended her GP who advised her to rescind her decision as she was experiencing huge anxiety and stress linked to her daughters passing and the request to change placement, while a significant change, was not the reason she resigned. She was not medically fit to make a life changing decision such as resigning. The Complainant had tragically lost her daughter two years previously. Her GP said that she was not in a fit state to make such a major life/career decision.

The Complainant wrote to the Respondent on 8th February 2022, 10 days after resigning, stating that

I am writing to request that you disregard my email in relation to notice of resignation from my position. Following consultation with my GP I am no longer proceeding with my resignation.

The Respondent refused her request to withdraw her resignation citing company policy.  The Complainant deemed this behaviour entirely unfair and unreasonable.

The Respondent relied on the common law rule that once notice is given by either party, it cannot be unilaterally withdrawn. The Respondent referred to the fact that the resignation was not made in the heat of the moment. The Respondent also claimed that the recruitment process had started by the time that the Complainant sought to withdraw her resignation and it was not practical to stop the process at that stage.


The Adjudicator referred to Redmond on Dismissal Law, 3rd ed. and the cases of Geraghty v. Industrial Credit Corporation and Keane v. Western Health Board which were referred to therein.  He goes on in his decision to quote from paragraph 22.25 of Redmond’s book as follows:

If, therefore an employee tries to withdraw a notice of resignation, an employer should ask itself whether special circumstances exist.  If so, they may cast doubt on whether the resignation was really intended.  The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts.

The Adjudicator found that the Complainant was not in a fit state of mind to resign from her position. Once the Respondent was put on notice that she wished to withdraw her resignation after having consulted with her GP, it was obligated to make enquiries at that time with the Complainant. It did not. The Adjudicator found that the Respondent’s decision was not based on bad intent, rather a policy driven process. However, he stated that the Respondent should not have continued to bind the Complainant to her resignation as it was tainted.

The Complainant had ticked all three possible remedies on her complainant form – compensation, re-engagement and reinstatement all requested. The Adjudicator determined that neither compensation nor re-engagement were an adequate remedy in this case. The Complainant was in a new position but on lower salary and not at the same level as her previous role. The Adjudicator held that the justice of the case is best served by being put back into her position from the date that the Respondent refused her request to rescind her resignation i.e. around 28th February 2022.  

Takeaway for the Employers:  When an employee, particularly one with long service, resigns their position it is best practice to test the veracity of their intention to resign including the reasons for the resignation. The lack of enquiry and communication by the employer in this case was fatal. Where an employee subsequently attempts to rescind a resignation, it should be given serious consideration before denying the employee the opportunity to do so.   If an employer fails to do so it may find itself as being deemed to have dismissed the employee and this will have been done without any proper procedures. The order for re-instatement is very unusual, especially when the employee has a new job and was no longer interested in returning. It will be interesting to see if this decision is appealed.

Link  – https://www.workplacerelations.ie/en/cases/2023/february/adj-00039351.html

Authors – Anne O’Connell, Nicola MacCarthy

28th February 2023

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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