Complainant

Respondent

Parties

Barry  O'Brien Lynch

Es Reilly Estates Ltd trading as Sherry Fitzgerald Reilly

Representatives

Ian McGowan Smyth of Hr Ireland

Niall O'Connell of Corporate HR Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00057642-001

11/07/2023

The Complainant in this case was employed by the Respondent estate agents from February 2018 until February 2023.

In the weeks preceding the employment relationship ending there were some unhappy differences between the parties.

The Complainant alleges that in February 2023 he was summarily dismissed. The Respondent disputes that there was a dismissal and argues that the Complainant resigned.

The Complainant gave evidence under oath.

On the 16th of February 2023 he was driving to work. Mr Ed Reilly called him and told him that he had received a phone call from a client. Purchasers had left boxes into the property being sold by the Complainant. This client was irate as the property hadn’t closed yet.

The Complainant had thought that the Respondent had permission to had over the keys but it turns out they didn’t. He was being blamed unfairly for this and felt exasperated. He felt like not coming into work that day and went home.

He told Mr Reilly he was going to turn around and go home but he did not resign.

They then scheduled meeting for him to attend and this was deferred until the following Tuesday. The purpose of the meeting was to discuss his employment. He didn’t know what it was about aside from that.

He was not told it was any kind of disciplinary meeting and his comments on the 16th were just from his frustration having built up. He had been getting more and more admin work but still responsible for the sales.

He thought this was a meeting was to clear the air and give them a platform to move forward from. He didn’t think he needed a witness.

The meeting was at the Ardboyne Hotel.  The Complainant met with Niall O’Connell and Mr Reilly. They talked about sports for a bit and then got down to the meeting. Mr O’Connell was saying they were two grown men with reputations and standing in the area. It would be favourable to everyone that we walk away with heads held high.

Then Mr Reilly said they had reached a crossroads and couldn’t employ him any longer.

The Complainant was flummoxed. But decided there was nothing he could do if the man doesn’t want him there. They got up a shook hands.

At no stage during the course of the meeting did he resign. He wished them best of luck and then concluded the meeting. They later sought to reach an agreement on these issues but failed.

He did give in laptop, phone and keys prior to the meeting because he was asked to.

He accepts he didn’t work after the initial call. He did field calls on the Thursday. Then received text about going to the meeting and decided he shouldn’t be doing that stuff and didn’t want to go into the office.

The Complainant was cross examined.

He did not tell Mr Reilly “I’m done I’m out of here” on the call on the 16th of February. He didn’t retract the statement on the 21st because he never said it in the first place.

He accepted that he received an offer of an exit package and went away to take advice on it.

He accepts that wanted to resolve matters to everyone acceptance but in the context of him getting sacked, Mr Reilly was finished with him. If there was an amicable way to finalise matters he was all for it.

The Respondent’s HR Advisor Mr Niall O’Connell gave evidence under oath.

He recounted that he had received a phone call from his client Mr Reilly who had said that Mr O’Brien Lynch had told him “I’m done I’m out of here” on the call. Mr Reilly didn’t know how to handle that so sought his immediate attention. The agreed he should come to Navan and Tuesday the 21st was the earliest he could get there.

They met in the Ardboyne hotel. The mood in room was professional. At the start of meeting they talked about sports.  They offered for Mr O’Brien Lynch to have someone with him but he hadn’t wanted to. He quoted “I’m done I’m out of here” and gave him the opportunity to retract his resignation. He said no he didn’t.

He then turned to Mr Reilly who said he was okay with that. The conversation moved to protecting everyone’s brands and integrity. He encouraged them to come to an agreement and move on.

They were very much of the view that the Complainant came into the company with dignity could leave the same way. The sense was that they amicably and professionally could close this out.

They discussed a recognition and good will payment not any mention of a redundancy payment.

He later got into the conversation with the Complainant’s solicitor as to the specifics.

Mr Niall O’Connell was cross examined.  

The Complainant was asked to put his resignation in writing but didn’t.

Mr Ed Reilly gave evidence under oath

Mr Reilly remembers the conversation with the Complainant happening on the morning of the 17th of February. It was an operational conversation. He was not irate. There wasn’t permission to hand over keys and this is serious issue. The discussion with Mr O’Brien-Lynch continued and working on Saturday was also discussed as he had recently told the office he wouldn’t work the coming Saturday to go hunting. The Complainant’s holidays also came up which he hadn’t given proper notice of.

The Complainant said he had a right mind to turn the jeep around and go home. He said “I’ve enough of this. I’m done I’m out of here” and that he’d drop in the keys.

Mr Reilly then called Mr O’Connell.

The conversation happened on the phone on Friday morning, the 17th of February. Mr O’Brien Lynch didn’t return to work after that. He didn’t work Saturday, Monday or Tuesday.  He gave in his equipment before their meeting on the 21st in the morning.

There had been no confusion as to what was done. His phone wasn’t answered in the meantime. He had resigned on the 17th.

The meeting on the 21st was amicable. Mr O’Connell did put it to him whether he wanted to withdraw “I’m done I’m out of here” but he didn’t.

Mr Ed Reilly was cross examined.

He did not get annoyed on the initial call. It’s not his style.  

They discussed three different operational issues. One was the keys. The other was his holidays and the third was Saturday working.

He had been shocked to hear from his client earlier that day. They had gone to their house to take their stuff and found items from the buyer in the house. There was no permission to do this.  

He immediately offered to pay for this stuff to be removed and had to smooth everything over with the client.

The Complainant had refused to do property showing on Saturday. He was not entitled to do this and was supposed to be working two Saturdays a month.

He had texted him the morning of the 21st looking for the keys to a particular property but the Complainant handed in everything.

Mr O’Brien-Lynch had set up his own company within the month and the Respondent paid him his salary for the rest of the month.

This case hinges on a factual dispute between the Complainant and the Respondent.

The Complainant’s evidence was that he was summarily dismissed in the Ardboyne Hotel on the 21st of February 2023. The Respondent’s evidence was that the Complainant resigned the 17th of February and then confirmed he was not retracting the resignation on the 21st. Both parties agree that there was then a period of time where they tried to agree an exit payment of some sort but this was unsuccessful.

The burden of proof is on the Complainant to show he was dismissed and therefore comes under the protections of the act. If he was then the burden would shift to the Respondent to establish that the dismissal was in compliance with the act.

I will not recount the evidence summarised above again here. On review of that evidence, I am not satisfied that the Complainant has established he was dismissed.

I note that he ceased working from the 17th which supports the Respondents case that he resigned then and there. The Respondent has provided the mobile phone logs from that period and the Complainant generally accepts that he was unavailable from the 17th. The Complainant was asked by text message to hand in keys related to one property on the morning of the 21st however at that point he handed in all of his equipment to the office. This was in the morning before he says he was dismissed summarily.

On the balance of probabilities I determine that the Complainant resigned and was not dismissed as he alleges. As such the claim under the Unfair Dismissals Act cannot succeed. 

I find that the complaint is not well founded.