An estate agent who denied he meant he was quitting when he told his boss “I don’t feel like going into work today” has lost a claim for unfair dismissal.
The Workplace Relations Commission (WRC) has concluded it was more likely than not that the employee, Barry O’Brien-Lynch did quit in a phone call with his boss on Friday, 17th February, 2023. The call was made some five days before a meeting at which he claimed he was dismissed by his former employer, ES Reilly Estates Ltd, trading as Sherry Fitzgerald Reilly.
Mr O’Brien-Lynch said there had been a “spat, a spat that was building for a while” between him and his boss, Ed Reilly, that came to a head due to a difficulty which arose in the transfer of a property from client of the Navan, Co Meath estate agency to a buyer.
“The purchasers had left boxes of belongings in a property that was due to close the following day. He wanted to know how they had keys and got access. They shouldn’t have had keys. I thought we had permission ... As it turned out, we didn’t. The blame on that was being laid at my doorstep,” he said.
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“I was exacerbated. I felt a bit pissed off, to be honest. I said: ‘I don’t feel like going into work today. I’m going to turn around and go home.’ That was the course of that conversation,” Mr O’Brien-Lynch said.
“Did that mean just that you were going home, or you were going to resign?” his representative asked.
“Just go home,” Mr O’Brien-Lynch said.
However, in his evidence to the tribunal at a hearing in March 2024, Mr Reilly said: “It wasn’t an irate conversation. It was an operational conversation.”
Mr Reilly said when he raised the matter of the house keys, his employee spoke to him “quite defiantly” and said: “I’ve a right mind to turn around the car and go home.” He said it was said to him as if he were “a child in the back seat”.
He said his response was: “Barry, that’s up to you, if you want to do that, you can.” He said Mr O’Brien-Lynch’s next words were: “You know what Ed? I’ve enough of this. I’m done, I’m outta here.”
He said he had expected Mr O’Brien-Lynch to work the following day, a Saturday, but that the complainant “went hunting” instead that day. Mr O’Brien-Lynch did not come to work the following Monday and dropped off his phone, laptop and keys on the Tuesday.
“As far as I was concerned, he’d left,” Mr Reilly said.
The tribunal heard Mr O’Brien-Lynch was invited to a meeting in the Ard Boyne Hotel in Navan later on the Tuesday “to jointly review our current employment challenges”.
Mr O’Brien-Lynch said that after discussing the events that led up to the meeting, the company’s human resources (HR) adviser asked Mr Reilly “what he wanted to do going forward”. He said Mr Reilly’s response was that they had “reached a crossroads” and was “no longer willing to employ me”
“I was a bit flummoxed. I didn’t expect any of that. What’s there to do if the man doesn’t want me there? that’s it,” he said. His position was that he did not resign, and that his employer wanted to terminate the employment relationship.
Cross-examining the complainant, the respondent’s HR adviser Niall O’Connell put it to Mr O’Brien-Lynch that he had asked him whether he was prepared to retract “I’m done, I’m outta here” remark at the meeting.
“You said you didn’t,” Mr O’Connell said.
“This ‘I’m done, I’m outta here’, from my recollection that never happened, and I don’t remember you quoting it in that meeting,” Mr O’Brien-Lynch said.
“But I did ask you very specifically in that meeting regarding ‘I’m done, I’m outta here.’ You said you didn’t want to retract it,” the rep said.
The complainant said he had “no recollection of that”.
Mr O’Brien-Lynch’s case was that he took a job on a building site “to keep a few bob coming in” after his dismissal and that he was down €30,000 a year. The WRC noted that following the meeting, the parties tried for a time to “agree an exit payment of some sort”, but failed.
In his decision on the case, adjudication officer David James Murphy wrote that Mr O’Brien-Lynch had failed to establish that he was dismissed, and concluded on the balance of probabilities that he had resigned. He dismissed Mr O’Brien-Lynch’s complaint under the Unfair Dismissals Act 1977.
