Employee grievances in the workplace can frequently be dealt with efficiently and amicably, but at times the process can become fraught, with those involved often under considerable strain.

Where an employee raises a grievance and subsequently resigns prior to the conclusion of the process or where an employee resigns and then raises a grievance, it can leave an employer in a difficult position. Should the grievance process be pursued? Did the employee resign in the “heat of the moment”?

Whilst such resignations are sometimes welcomed with relief by an employer, there is a misconception that the resignation automatically terminates the grievance process and that no further steps need to be taken by the employer. However, any resignation by an employee in the context of a grievance process should always be carefully considered.

RESIGNATION

When an employee unambiguously informs their employer that they have resigned, it is generally safe for the employer to rely on this and conclude that the employee has ended the employment relationship.

However, it is clear from case law that context is everything and the background circumstances to the resignation should be considered.  These include:

• where a decision is made in the heat of the moment,
• where an employee is pressured to leave by the employer,
• where an employee is under emotional stress, and
• in circumstances where the employer knew, or ought to have known, that the resignation was not freely given or was not meant to be taken seriously.

Where an employee resigns during a grievance process or raises a grievance when leaving, consideration of the background circumstances to the resignation is key, as it may be alleged that such a resignation is not freely given or is given in the “heat of the moment” or given when an employee is under emotional stress.  In such circumstances an employer should consider whether a ‘cooling off period’, to allow the employee to reconsider their position, is appropriate. Failure to do so, where appropriate, may increase the risk of a constructive dismissal claim.

It is also important that an employer assesses the nature of the grievance lodged and whether it can be continued in light of the resignation.  Factors to consider include:

• Is the complaint a personal grievance?
• Does it affect other employees in any way?
• Does it involve issues of bullying or harassment or health and safety, for example?
• Could it amount to a protected disclosure?
• Does the grievance give rise to circumstances where it may be prudent to ask the employee to reconsider their resignation, at least until the complaint or grievance is investigated?
• Will the employee cooperate so that the grievance can be investigated?

After considering these factors, the employer will be better placed to determine the appropriate course of action.

It is good HR practice in most cases to make a meaningful effort to resolve a current grievance or complaint, even if the employee has resigned.  Generally, it makes most sense for the current grievance procedure to continue to be followed, subject to any common sense and reasonable changes to reflect the fact that the employee is no longer working in the business. From a practical perspective, should a resigning employee refuse to cooperate with an investigation into a complaint that they made, it may be difficult to proceed with that investigation in a meaningful way.  In those circumstances, it is advisable to document the efforts to engage, the refusal by the employee to cooperate and the effect that
non-cooperation has on the employer’s ability to investigate.

RISK OF CONSTRUCTIVE DISMISSAL CLAIM

Where complaints are raised by an employee prior to their resignation, an employee may try to argue that they were constructively dismissed.  It may be alleged that the employee had no option but to resign due to the lack of progress with the grievance or the lack of any meaningful engagement by the employer.  There are numerous cases where the courts have regarded the resignation of an employee in such circumstances, as amounting to a constructive dismissal.

In the 2023 Workplace Relations Commission (WRC) case of Michelle Farrell v Ard Ri Marble Mantlepieces Ltd (ADJ -00033717), a financial controller alleged that the failure of her employer to deal with her grievances in an appropriate manner made the conditions of her employment intolerable to the extent that she was entitled to resign and consider herself constructively dismissed.  The Adjudication Officer (AO) noted that while the employer had a detailed grievance procedure and policy on bullying and harassment in place, it “circumvented its own procedure” in failing to engage with the complainant “in a meaningful manner.”  The AO held that “despite the exchange of emails and some meetings between the parties, there was no meaningful and robust action taken by the Respondent. There does not appear to be any records of the Complainant’s grievances, there was no suggestion that the Respondent carried out any investigation into the allegations raised by the Complainant. I accept that some proposals regarding the Complainant’s return to work were put forward. However, the kernel of the matter was the Complainant’s grievances. These appear to have never been addressed and instead, the Respondent engaged in a futile process.” The AO concluded that “the behaviour of the Respondent was unreasonable such as to justify the Complainant terminating her employment by way of constructive dismissal.”

As was evident in the recent case of Mario Kistner v Suirsafe Technologies Limited (ADJ-00040425), the WRC may in exceptional circumstances award compensation for constructive dismissal even in circumstances where the employee resigns without invoking the company’s grievance procedure.  In this case the employee had attempted to raise his concerns with the shareholders during his employment, but it was evident that they were not willing to engage with him on any level. In the circumstances, the WRC held that the employee was entitled to terminate his employment without having to invoke the company’s grievance procedure.

It is clear from this case that employers need to exercise particular care if complaints are made by an employee on or prior to resignation and also where an employee resigns during a grievance process.

APPROPRIATE ACTION BY AN EMPLOYER

Clarifying the reason for the resignation is important. If the resignation is tendered before a grievance is concluded, it is important to establish whether the resignation is connected to the grievance and whether there is a risk that the employee may allege they resigned as a result of the employer’s handling of the grievance process.

It is also important to ascertain whether the employee wants to progress the grievance or complaint or if they regard the matter as concluded. Employers should bear in mind that a resignation does not automatically resolve or conclude an existing grievance or complaint and the employee may still issue legal proceedings depending on the circumstances.  An employee who has resigned may bring claims in respect of a wide variety of employment rights such as an unpaid bonus, equal treatment, failure to provide a statement of employment, constructive dismissal, etc., notwithstanding their resignation.

It is open to an employer to regard a grievance as concluded on the resignation of an employee, but preferably only after a meaningful assessment of the facts and potential risks.

Even where a resignation is amicable, it is advisable to carry out an exit interview to establish the reasons for the resignation and any areas of concern. Should an issue be raised, the employer should assess the complaint and consider whether it is appropriate to ask the employee if they wish to raise a formal grievance.

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