Here we can see two cases where the outcome is very interesting indeed. In these cases the employee was presented with evidence from the employer and told they could resign or face the full rigors of the disciplinary process.
In both cases the employees took the option to resign, and accordingly brought forward claims for Constructive Dismissal. The Decision of the EAT in both cases is very interesting and whilst it would definitely not be an option for most scenarios the determination does give cause for considering such an approach in rare circumstances.
In the case of UD2414/2010 the employee worked as a cashier in a fuel station in Wicklow. The Company had a promotion to receive a free can of Red Bull (valued at €2.50) with every purchase of €30.00 or more. The employee was told if the customers did not want the drink he was welcome to it, however the employee in this instance did not like this drink. Instead he rang in the cans as till refunds, and over the course of the shift had taken €7.50 and used it to part pay for a packet of cigarettes. When the employer was aware of this he called the employee to a meeting whereby he was offered the choice to resign or "face the full rigors of an internal investigation and notification of theft to the Gardai."
The employee took the option to resign and brought forward a claim for constructive dismissal, which the tribunal rejected ont he basis of the evidence, and concluded the employer was entitled to dismiss the employee for Gross Misconduct.
In the second case, Anatuskas -v- Petrogas Group Ltd. UD2416/2010, the employee had processed a refund of €225.00 the previous day, and when asked about it the employee admitted that he had processed this and taken the money. He had said a fellow employee had shown him how to carry out refunds and that everyone was doing it.
The employer offered the employee the opportunity to resign now or he could be suspended pending further investigation as this was considered to be Gross Misconduct. Following a 15 minute break the meeting resumed and the employee resigned. The employee also took a claim for constructive dismissal which the tribunal rejected citing no evidence of a constructive dismissal having taken place, and accepted the resignation stands.
In both of these cases the tribunal ruled that the employers actions were reasonable in the circumstances, as there was clear evidence (CCTV footage and an admittance of guilt) to show the employees were guilty of Gross misconduct.
Employers should beware not to start offering this option at all disciplinary hearings as that is unlikely to result in the same outcome. Also in these cases there is an argument to be made that if the employees had rejected the opportunity to resign and proceeded with the disciplinary process and were ultimately dismissed, there is a chance they would have been successful in a claim for Unfair Dismissal as the employers pre-dertemination of guilt would have rendered any dismissal unfair.
These are interesting determinations for Employers or Practitioners to be aware of however all cases should be taken in their context and all the facts of the case considered.
