# Impact of Resignation vs. dismissal?



## Lightmyfire (17 Jul 2008)

If you are being let go by your employer after 3 years service - and are offered the opportunity to resign [because they have no case for dismissal and are re-filling the position] - what are the possible implications?  e.g. I think there might be delay before you can sign on?  Anything else?


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## WaterSprite (17 Jul 2008)

Generally, if you resign, you have a much weaker case for unfair dismissal.  I presume you are getting a settlement?  They will probably have you sign something that waives all your rights under the Unfair Dismissals Acts (and a plethora of other legislation).  Assuming you are ok with all that, then there's no other implications from the legal side of things.  Not sure about the social welfare aspect of it.

Sprite


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## Welfarite (17 Jul 2008)

You can be disqualified for up to 9 weeks from getting Jobseeker's Benefit/Allowance if you leave your job without "good cause". See here  (Part 4)for more detail on how SW decide this


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## wishbone (17 Jul 2008)

Could it fall under the heading 'constructive dismissal' http://www.citizensinformation.ie/c...d-redundancy/dismissal/constructive-dismissal

Are you being forced out against your will?


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## Staples (17 Jul 2008)

A company cannot dismiss you unless you have committed an act of gross misconduct if you have already completed 12 months service.  Neither are you obliged to resign.

If you have conducted an act of gross misconduct, then it probably is preferable to being formally dismissed.

As Welarite has pointed out however, the voluntary termination of employment has implcations for jobseekers benefit.


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## Lightmyfire (17 Jul 2008)

Getting settlement - have no issue with signing away rights to unfair dismissal.
Thank you for the link Welfareright ... that answers my question.


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## Lightmyfire (17 Jul 2008)

Gross misconduct does not apply!!!!


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## Calebs Dad (17 Jul 2008)

You should seek professional adice for a settlement agreement (compromise agreement) there are guidelines as to who these can be checked over by

Solicitor
Certain Qualified Trade Union Officials

by right the company should pay for you to receive independant legal advice


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## WaterSprite (17 Jul 2008)

I don't believe there are requirements as to who should review a settlement agreement in Ireland in order for it to be enforceable.  There is a requirement in the UK however.

Sprite


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## Calebs Dad (17 Jul 2008)

Sprite, as a lawyer suggest you look up (Sunday World Newspapers Limited v Kinsella & Bradley 2006 ELR) the Labour Court set out the factors to be taken into account in deciding whether a compromise agreement is lawful and therefore enforceable.  They are:

That the terms of any waiver should be construed strictly against the party from whom it emanated.  Where there is doubt, the course of negotiations between the parties should be examined so as to ascertain what was intended. 
An agreement to waive statutory rights must be supported by adequate consideration. 
A waiver should normally arise when an agreement is reached as a result of meaningful negotiations and professional advice having been sought and given. 
A waiver should list the various Acts being taken into account.  
A waiver is only valid if it is based on free and informed consent given by a person with full knowledge of their legal rights. 
It is for the employer to ensure that the worker is capable of giving an informed consent and the employer should normally advise the worker in writing to obtain professional advice before inviting him/her to sign a waiver
Who would you deem a being able to offer professional advice on the matter


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## WaterSprite (17 Jul 2008)

Looking at that case, the court said (before that list):

"It is clear from the authorities that a provision in a statute prohibiting contracting out does not prevent parties from lawfully agreeing to settle or compromise claims based on the statute. There is, however, often a subtle but substantial difference between a genuine bargain to settle or dispose of a claim, which is lawful and enforceable, and an attempt to exclude or limit the Act, which is void and of no effect. The case law indicates that the following considerations are relevant in distinguishing the former from the latter: - ..."

There is no legal requirement for a settlement agreement to be reviewed by a solicitor or a union rep. All of the factors listed do not all have to be adhered to to the letter in order for a settlement agreement to be enforceable.  The fundamental requirement is that the bargain needs to be properly negotiated and that both parties fully understand their rights and entitlements.  There is also no legal requirement for a company to pay for legal advice taken by an employee in negotiation of a settlement.

OP, however, seems happy to sign a settlement and seems happy to sign away his rights under the UDA at any rate.  Without knowing anything else about OP, it's impossible to comprehensively assess his/her rights and the particular rights s/he is waiving.  If OP does fully understand these rights and has freely negotiated the settlement, then there is no legal requirement for the settlement agreement to be reviewed by counsel/solicitor/union rep to be enforceable.  That's not to say that it's not advisable for OP to have such a review, but that the lack of a review in and of itself won't make the agreement unenforceable.

Sprite


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## Calebs Dad (17 Jul 2008)

well then sprite, we have a fundamental disagreement then, but as you a no doubt a qualified employment law solicitor and I only deal with these issues on a day to day basis I will defer to your superior knowledge. I do however suggest that you read to full determination including the reference to "legal rights". If you would be happy from a professional point of view to allow a normal employee to sign away any rights without fully understanding the ramifications of there actions is wrong. I am also assuming that you went and read the whole judgement

*"I am satisfied that the applicant was entitled to be advised of his entitlements  under the employment protection legislation and that any agreement or compromise  should have listed the various Acts which were applicable, or at least made it  clear that they had been taken into account by the applicant. I am also  satisfied that the applicant should have been advised in writing that he should  take appropriate advice as to his rights, which presumably in his case would  have been legal advice. In the absence of such advice I find the agreement to be  void”*


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## bond-007 (17 Jul 2008)

Welfarite said:


> You can be disqualified for up to 9 weeks from getting Jobseeker's Benefit/Allowance if you leave your job without "good cause". See here  (Part 4)for more detail on how SW decide this


I had a deciding officer once tell me that if you voluntarily leave a job you can be disqualified for ever.


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## WaterSprite (17 Jul 2008)

I did indeed read the full judgment and have posted my views on it.  I have quite a lot of experience in drafting settlement agreements, although none has actually been tested by the courts.  I do, however, stand by my last post.  If you disagree, that's no problem - that's what this forum is for.

Sprite


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## Calebs Dad (17 Jul 2008)

I see you still have not answered the question on who is best placed to advise the employee of his/her rights in this matter. I am aware what the forum is for and yes I do disagree with your assessment. But then again, if it wasnt for the advice of non employment law solicitors, I wouldnt be so busy at the Rights commissioner or LRC


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## WaterSprite (17 Jul 2008)

As I said, I do not believe that it is necessary that an employee has professional advice on a settlement agreement in order for the agreement to be enforceable. I wasn't avoiding the question.

If the employee *understands* his/her rights and enters into an agreement that was freely negotiated etc., then there's no need for "professional" advice.  In certain cases, the employee can get the information s/he needs from public sources or the Dept of Enterprise.  In other cases, the circumstances will be much more complicated and they should get advice from an employment law solicitor.  There are also cases in between where advice given by a knowledgeable person (from a legal background or not) will be adequate to "inform" the employee of their rights.

Sprite


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## Calebs Dad (18 Jul 2008)

*Then hopefully one of these days I will be the one challenging one of your settlement agreements where you have not offered the employee the right to have the details examined and an explanation of where the agreement impacts on his/her rights.*


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## greenfield (18 Jul 2008)

Calebs Dad - just wondering if you could explain what is the basis on which you say that "*by right the company should pay for you to receive independant legal advice*" - in your opinion is there some right to this?  Maybe you could reference the source for this or are you offering an opinion as to what you think should be a right?

As a matter of interest have you seen the recent EAT determination on disclaimers in case UD525/2007 Salter and Harvest Spectrum Property?   The claimant did not have independent advise but did have an opportunity to seek that advise - he chose not to and the EAT were happy that the disclaimer should stand.   They were satisfied that he was on notice of the necessity for his consent to be fully informed.


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## Card (18 Jul 2008)

calebs dad
above you say you are a lawyer but in another post you say you are not? can you please clarify?


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## bond-007 (18 Jul 2008)

They should point out that you should seek legal advice.


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## greenfield (18 Jul 2008)

Agreed Bond-007, but I would be interested in Calebs Dad's explanation for his comment re right to have the employer pay for the advise.


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## Calebs Dad (18 Jul 2008)

Greenfield, I have already given the reference for my opinion above.


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## greenfield (18 Jul 2008)

I am definitely missing something, I cannot see any reference that sets a "*right* to have your employer *pay* for the advise". I would appreciate if you could explain the exact reference or precedent that you consider gives this right as such a right would have huge implications for all involved in such matters. If I have taken you up wrong, maybe you could clarify exactly what you do mean.


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## Calebs Dad (18 Jul 2008)

to be precice greenfield the term is used was "by right" meaning what would be Fit; suitable; proper and correct thing for the employer to do to ensure that the employee was fully aware of the consequences of there actions. But then again, I suppose most employers would rather that employees were not afforded an opportunity


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## Lightmyfire (18 Jul 2008)

Welfarite said:


> You can be disqualified for up to 9 weeks from getting Jobseeker's Benefit/Allowance if you leave your job without "good cause". See here (Part 4)for more detail on how SW decide this


 

Are you obliged to disclose details of settlement to Social Welfare?


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## bond-007 (18 Jul 2008)

Nope. 

Also there are ways around the 9 week period.


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## Welfarite (22 Jul 2008)

bond-007 said:


> Also there are ways around the 9 week period.


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## Welfarite (22 Jul 2008)

Lightmyfire said:


> Are you obliged to disclose details of settlement to Social Welfare?


 

Not sure what you mean. SW will only want to establish the reason why your employment has finished. If an employer and employee are both telling SW that the employee was, say  "let go due to downturn in business" then SW will not pursue it further.


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## bond-007 (22 Jul 2008)

Welfarite said:


>


I shall not comment further.


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