Employer has to verify resignation claim when alleged by third party

In this case the Tribunal held that an employer’s failure to confirm whether an employee wished to resign, when the alleged intention has been disclosed to the employer by a third party, might give rise to a case of unfair dismissal

This was explained in a decision of the Industrial Tribunal as presided by Dr Katrina Borg Cardona of the 27th July 2018 in the names of Roger Debono v Gozo Hotels Company Limited concerning the unfair dismissal of Roger Debono from his employment as a Chef within Gozo Hotels Company Limited’s establishment.

In this case the Tribunal held that an employer’s failure to confirm whether an employee wished to resign, when the alleged intention has been disclosed to the employer by a third party, might give rise to a case of unfair dismissal.

The dispute arose following the alleged verbal resignation of Roger Debono on the 9th July 2014 following an argument with the general manager of the employer’s hotel. During that time, the hotel was experiencing considerable losses and the owner decided to engage a general manager in order to help the dire situation of the hotel. Mr Sammy Rapa was engaged as a general manager and he started making some changes in the operations of the hotel and implemented new practices. As it resulted during the pendency of this dispute, the mode of operation of the general manager was not appreciated by the employees of the hotel, including the plaintiff Roger Debono.

On the 9th July 2014, an incident arose where during a buffet in the hotel, a guest informed the general manager that the food was cold. As it transpired from the evidence, this resulted due to a malfunction in the electrical extension that the machinery due to keep the food warm was connected to. The malfunciton was fixed by sous-chef Lorry Portelli, but the latter and plaintiff Roger Debono were still scolded by the general manager because the sous-chef had absented himself from the buffet in order to fix the extension.

Roger Debono told the general manager that he should not have spoken to the sous-chef in that manner since he had only left his place in order to fix the extension and only did so due to the fact that there were no maintenance personnel available.

At this moment, Mr Rapa and Mr Debono had a verbal argument and it was at this point in time that Mr Debono allegedly told Mr Rapa that he was going to resign from his employment.

During the pendency of this case, Mr Debono refused having said that he was going to resign and in fact he continued with service normally for the remainder of his shift. Mr Rapa himself confirmed that Mr Debono returned to his job for the rest of the evening and the persons who were present during the argument testified that they had not heard Debono state that he wanted to resign from his employment.

Following this incident, the general manager informed Dr Michael Caruana, the managing director of the defendant company with what had happened and a few days later Dr Caruana called for Mr Debono and handed him a letter signed by himself where Mr Debono had been informed that the company had accepted his resignation following the verbal communication between the general manager and Debono. Dr Caruana had not spoken to Mr Debono after the incident and before issuing the said letter. The resignation was effective immediately and no notice period was given.

When analysing the facts of the case, the Industrial Tribunal held that the issue revolved around whether the plaintiff had in fact resigned or whether his termination was unilaterally done by his employer. The Tribunal held that dismissal from employment is an extreme action and should never be taken without there being a valid reason and justification for that decision. From the evidence, it resulted that the employers had solely relied on the version that was communicated to them by the general manager and failed to request Mr Debono to confirm whether he intended to resign from his position and to clarify whether he had truly divulged his wish to resign to Mr Rapa.

The Tribunal also considered the fact that if Mr Debono had allegedly resigned from his employment, the employee would have owed a notice period to the defendant company but no such request was made by the employer and the resignation was effective immediately and Mr Debono was replaced by another chef on the same day.

In view of the above, the Tribunal believed that the abovementioned omissions from the part of the employer, favoured the plaintiff’s argument in the sense that the termination of employment was not due to him resigning but because of a unilateral decision by the employer to dismiss him.

Having said this the Tribunal also held that the strained relationship between the general manager and Mr Debono and the verbal argument between the two, could have in a way contributed to the interpretation of Mr Debono’s statement as being an intention to resign from work.

Notwithstanding this the Industrial Tribunal decided that there was no valid justification for the termination of Mr Debono’s employment and the employers had exposed themselves for the possibility of a claim for unfair dismissal, when they relied on information disclosed to them solely via a third party without confirming the facts of the situation with the interested employee.

For these reasons the Tribunal held that the termination of employment in this case was unfair and there was no valid justification for this termination and consequently Mr Debono was awarded the sum of €20,000 as compensation for his dismissal.

Dr Catherine Mifsud is an associate at Mifsud & Mifsud Advocates

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