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Employment decisions at a time of high emotion can lead to unexpected results

17 February 2016

High emotion in the workplace may lead people to communicate in a way they do not intend, often with sad results. The recent case of Corinne Tribe illustrates this.

Tribe started work for J Scott and Company as an accounts assistant in August 2014.

However, after less than four weeks of work she was advised by her medical specialist that she had suspected cancer of the tongue.

After further tests it was confirmed she did have cancer and that medical treatment would involve removal of her tongue and the transplant of other tissue to replace it.

Everyone is familiar with the shock and anxiety that comes when we hear that someone close to us has cancer.

To think of the emotions a person suffering from cancer might have takes little imagination. While her prognosis was good, no doubt the prospect of surgery and rehabilitation would have been daunting.

Prior to her operation and prognosis, Tribe emailed her employer advising it of the treatment she required and said it would take several months for her to recover.

The email commenced with her stating: "To be honest I don't know which way is up at the moment".

She said although she would dearly love to hope the job would be there for her, she appreciated that a business cannot be run like that and that the company probably needed to move on, cover its losses, and employ someone new.

She was concerned about her ability to speak afterwards, limiting her opportunity to find other employment, and asked if it was at all possible for her to keep in touch in the hope that something may come up at her place of employment, for which she would be grateful.

Did she resign? The employer obviously thought she had because it replaced her with another worker.

To its surprise, a month after the email had been sent, Tribe visited the office and asked about returning.  The company of course told her that they understood she had resigned.

She raised a personal grievance, which went to a hearing.

The Authority found that her email was sufficiently clear and unequivocal, and did not state she had an expectation to be employed, only that she hoped for that possibility. Her email also asked what the best day to finish was.

Although she was emotional at the time she resigned, the Authority found there was insufficient evidence that her actions were so affected by emotion that they couldn't be relied on.

She offered her resignation for rational reasons and she had two days to reflect on the news given to her by medical experts before she sent the resignation.

She made statements to other workers consistent with her having resigned.

Readers will no doubt have their own view on whether the outcome was fair.

Perhaps her suggestion that she and the employer should discuss the best day to finish was fatal to her case.

There are, however, many cases where a resignation is given in the heat of the moment, and the courts have held that it is unreasonable for an employer to rely on such a resignation and that a cooling off period may be allowed for the worker to make a decision in the cold light of day, away from perhaps an emotional situation.

Doing anything in the heat of the moment is unwise whether you are an employer or a worker.

When your judgement is clouded or overwhelmed by emotion it is prudent in any situation not to make an important decision.  That is especially so in an employment context.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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