Assuming resignation has proven to be ineffective, a recent Employment Tribunal case in which a woman whose contract of employment was terminated when she failed to return to work following a period of approved leave claimed that she was unfairly dismissed by her employer. EAT determined that the employee had been unfairly dismissed. The correspondence between the parties and the level of communication between them proved to be crucial in establishing that the termination was unfair, and the tribunal stressed the fact that, there appeared to have been no formal procedure adopted in ending her employment and awarded what they referred to “as a reduced a sum of €10,000” under the Unfair Dismissals Acts. Therefore, before employers can assume resignation, it is very crucial they make reasonable attempts to contact the employee and must not assume that because the employee did not make contact or respond to correspondences from the employer, they have resigned. As the Tribunal have a dim view of assuming resignations the recommended process employers should adopt when dealing with cases of unauthorised absence where employees have failed to make contact or respond to correspondences would be as follows;
- Invite to Disciplinary. This must specify that if the employee does not attend then this will be treated as a failure to follow a reasonable management request and would be viewed as gross misconduct.
- If employee does not attend the hearing then adjourn.
- Issue a second invite letter which adds the non-attendance at the first hearing as a separate incident of misconduct. This letter must specify that the allegations are potential gross misconduct that the hearing will go ahead in absence if no attendance, and the employee may be dismissed.
- Hold second hearing and if employee does not attend then dismiss in writing with a right of appeal.
It is advisable to send all correspondence by normal and registered post to ensure you have a record of the letters being sent. By following due process it significantly reduces the risk of an employee being successful in an Unfair Dismissal Claim. Employers are strongly advised to seek advice if faced with any unauthorised absence issues and if you have any queries in respect of the above article then please contact our 24 Hour Advice Service on 01 855 50 50.
