Resignation or Redundancy?

The Industrial Tribunal insists that a resignation from an employment should not be equivocal. It has to be clear. Above all, it has to be genuine, explicit, authentic, done voluntarily and preferably in writing. These elements of a resignation were identified in case 2829/FM Mark Buhagiar vs Gozo Express Services, which characteristics were confirmed in a later case, having reference number: 3331/CCG Saviour Attard vs Palm City Limited. The latter case, decided on the 5^th of December 2018, may be considered as a distinctive one given the nature of events surrounding a presumed resignation.

Background

An employee, performing his duties in Libya, was requested to go on unpaid leave. This request was made in light of the turmoil present in that country. The employee did not accept this request and the company proceeded with redundancy. Following the redundancy, the employee asked for a reversal. Which request was accepted, and the employee was re-instated on the books of the company, on unpaid leave. Following such re-instatement, the employee was requested to refund the notice paid by the company upon redundancy. During this period, the employee (currently on the books of the employer, however during a period of unpaid leave) queried whether he can in the meantime work for another employer. To this request, the employer found no objection.

A couple of weeks later, by virtue of an email, the employee requested another reversal. Which reversal was then considered by the employer as a resignation.

The Decision

The Tribunal highlighted that the employee, in an email requesting this final reversal stated: ‘he has decided to withdraw his request to be re-instated’. The Tribunal went on to remark that the employee was first made redundant, and then requested re-instatement. A request to withdraw the re-instatement implies that through his final request, the employee is requesting to return to redundancy. The Tribunal decided that the final email sent out by the employee cannot be considered as a resignation. On this note the Tribunal emphasised the main requisites for a resignation highlighted above, a resignation shall be: genuine, explicit, authentic, done voluntarily and preferably in writing.

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