Adam Hugill talks about dismissal or resignation in highly stressful situations, when employees and employers get carried away with emotions. He highlights the 2020 case of Sindy Lam v William Leung in Hong Kong and the English Court of Appeal 2011 case of Willoughby v CF Capital PLC. He concludes reminding both employers and employees to be cautious and rational in such tense situations.
SHOW NOTES
00:32 Lam Sin-Yi v Leung King-Wai William [2020]
02:14 “Clear and Unambiguous”
03:02 Ms. Lam succeeds in her Appeal
03:32 Takeaways
TRANSCRIPT
Dismissal or Resignation in the Heat of the Moment
The workplace can be a very stressful environment. Tempers can boil over and things are said in the heat of the moment that are later regretted. This includes employees “resigning” in a fit of anger and employers “sacking” employees when they might not necessarily mean to.
But what do phrases such as “that’s the last you’ll see of me” or “and don’t bother coming back” actually mean?
This question was considered in Sindy Lam v William Leung [2020].
Lam Sin-Yi Sindy v Leung King-Wai William [2020]
Ms. Lam was employed as a secretary at a firm of solicitors. She applied for a half-day of ‘no pay leave’ to take her mother to the doctor. Her request was approved by HR.
The next day, the senior partner, Mr. Leung sent a group WhatsApp message saying he had not approved the leave application since it was made with less than a day’s notice. He went on to say that employees were expected to work, they should not take leave without reasons, and that there would be no exceptions in the future.
He then said ‘I am now considering whether you have absented from work without cause. If yes, you have to leave immediately!’
In the same group message, but addressing a manager, he finally said Ms. Lam was on probation and subject to a 7-day notice period.
Ms. Lam responded asking if she was being treated as being absent without cause so that she would have to leave immediately. And also said ‘it would not matter if she returned or not’.
Ms. Lam returned to the office that afternoon and was asked to pack up her belongings. Mr. Leung was not in the office at this time. Ms. Lam left and did not return to work.
Ms. Lam later discovered that 7 days wages in lieu of notice had been deducted from her pay.
Ms. Lam sued for 7 days’ pay.
Her claim was dismissed by the Minor Employment Claims Adjudication Board. The Board found that Ms. Lam terminated her employment through her words and conduct – even though the word ‘resign’ had not been used. The Board also found that there was no express dismissal by Mr. Leung.
Ms. Lam appealed to the High Court. The High Court was asked to determine if the Board should have considered the entire context and circumstances of the exchange between the Ms. Lam and Mr. Leung, and not just the literal meaning of the words used.
“Clear and Unambiguous”
The Court considered the English Court of Appeal case, Willoughby v CF Capital PLC [2011] which said, ideally, the words used in a verbal resignation or dismissal should be clear and unambiguous.
However, the Court went on to recognise that words may be said in circumstances where the literal meaning of the words should not be taken at face value.
For example, words may be said during an acrimonious exchange between an employer and employee in the heat of the moment such that there may be a real question as to whether they were really intended to mean what they appeared to say.
In such circumstances it would be appropriate for the recipient to take time to ascertain whether the words said were, in fact, intended to terminate the employment. The Court went on to say that in such ‘special circumstances’ there should be an opportunity for the employee / employer to recant their words.
Ms. Lam succeeds in her Appeal
In Ms. Lam’s appeal, the Court found that the Board failed to take into account the circumstances in which the WhatsApp messages were exchanged.
Ms. Lam ‘was obviously indignant and felt aggrieved’, hence her saying ‘it would not matter’ if she returned or not, but that this was ‘obviously an impulsive statement expressed in a moment of anger’.
The Court found that Ms. Lam’s statement could not reasonably be construed as a resignation. Instead, by Mr. Leung requiring her to leave, he had effectively dismissed her.
Takeaways
This case serves as a useful reminder to employers and employees alike that a notice of termination should be clear and unambiguous – especially when it is verbal or open to misinterpretation.
Since workplace disputes are pretty much unavoidable, both parties should keep in mind that a termination or resignation uttered in the heat of the moment should not be taken at face value. A moment of reflection should be allowed and, ideally, clarification sought, before reacting.
This video is for informational purposes only. Its contents do not constitute legal or professional advice.
