Complainant

Respondent

Parties

Colin  Farrelly

Ddbk Limited Skon

Representatives

Ferrys Solicitors

Roberta Urbon Peninsula

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-00062494-001

28/03/2024

The Complainant commenced employment with the Respondent on the 10th of October 2020. His remuneration was agreed at €3,883.33 per month gross. The Complainant made a single claim for Unfair Dismissal pursuant to Section 8 of the Unfair Dismissals Acts 1977 - 2015. Dismissal was in dispute. The Complainant alleged that he was dismissed on the 12th of July 2024.

The Complainant made a claim for Unfair Dismissal by way of WRC Complaint Form, received by the WRC on the 28th of March 2024. The date when the employment ended was stated as the 12th of January 2024. The Submission Page on that form stated:

“I was unfairly dismissed my by former employer DDBK Limited (Trading as SKON) by way cloaked redundancy.”

A submission was delivered before the evidence was heard, in summary, making the following points:

This complaint relates to a dispute as to the facts. The Complainant submits that he did not resign from his employment. He submits that he was dismissed. The Complainant submits that this is not a constructive dismissal complaint, and the burden is on the employer. The Complainant submits that he was informed that he was being made redundant with immediate effect when he was dismissed on the 12th of January 2024.

The Complainant’s position is that he was unfairly dismissed by way of a sham or cloaked redundancy.

The end of the Complainant’s employment was not of his own choosing. Rather the Complainant was placed into a difficult situation where he was informed that he would be dismissed and that the company would offer him payment to leave in exchange for his signature on a contract document. The Respondent did not ask the Complainant to seek legal advice regarding signing the agreement, despite its terms requiring him to waive his statutory rights. The Complainant did not sign the agreement.

There was a deterioration in the working relationship between the Complainant and the Respondent’s Managing Director, Mr. David Doyle who began actively to dislike the Complainant from January 2022. Mr. Doyle abruptly informed the Complainant that he would be required to work exclusively on the shop floor which the Complainant considered to be a demotion. Mr. Doyle’s dislike for the Complainant spread to other employees. He left a WhatsApp group in March 2023 as he did not like some of the comments being made by other employees who were members of the group. He took to eating lunch in his van. Mr. Doyle did not address the issues that had arisen by way of internal procedures or mediation. The Complainant received a verbal warning in April 2023 following an altercation with a colleague (James Denham) and Mr. Doyle sided entirely with the other party. The Complainant was not invited to and did not attend the Christmas party in December 2023 the details of which, he presumed, were shared on the WhatsApp group which he had left. The Christmas bonuses were distributed at that party by Mr. Doyle. 

On the 9th of January 2024 the Complainant approached Mr. David Doyle on the shop floor and asked whether he would receive a Christmas bonus, as all other employees had. There ensued a discussion about the Complainant’s position in the company, and as Mr. Doyle put it “the atmosphere” between Mr. Farrelly and himself. The Complainant was taken by surprise by the direction of the conversation and by Mr. Doyle’s comments in this regard. Mr. Doyle said, “We can either sort this out or part ways”. He then suggested that they would meet in his office that Friday the 12th of January 2024 at 4 pm to discuss further.

At that meeting on the 12th of January 2024, Mr. Farrelly went to Mr. Doyle’s office. Mr. Doyle made reference to his comments of the [9th of January 2024] and said “to be honest I don’t think the first option is going to work out”.  He then proceeded to inform the Complainant that he was redundant. He made clear that there was no job in the company for Mr. Farrelly and this would take effect immediately.

Mr. Doyle suggested that Mr. Farrelly would receive a “redundancy payment” for his “redundancy”. He further stated that Mr. Farrelly would not be required to work out his notice period, instead he could receive payment in lieu of notice and leave immediately.

On what he reasonably understood to be the end of his employment, the Complainant did not return to work after this day. He understood his employment to be over.

A series of discussions then ensued between the Complainant and Mr. Keating, the Respondent’s accountant. A number of draft agreements were sent to the Complainant.

[Details of correspondence, email exchanges and the sequence of events were presented and these are discussed as they arose in the evidence in the Findings Section of this decision below] 

The Complainant did not sign any of the draft agreements, yet a payment was made into his bank account in the first week in March 2024 without his knowledge or consent. He did not accept it as consideration for any agreement. He understood this payment to include outstanding wages, annual leave, notice pay and a statutory redundancy payment. The Complainant’s Revenue Account shows that his employment with the Respondent ceased on the 31st of January 2024.

It was contended that in May 2024, when the Complainant had secured a position working for a hospital which was subject to references, the Respondent had failed to provide a reference for the Complainant and he did not secure the job, which frustrated his efforts to mitigate his loss.

The Respondent delivered a written submission which, in summary, contained the following points:

The Complainant commenced employment on the 1st of October 2020 as a production/ fitter. His annual salary was €46,000. He has lodged one complainant to the Workplace Relations Commission (WRC) under s.8 of the Unfair Dismissals Act 1977. He alleges that he was unfairly dismissed by reason of redundancy where that redundancy process was flawed. The Respondent wholly denies this claim and disputes the dismissal of the complainant.

In November 2021, the Complainant took leave in order to have a hernia operation. Again, his work was altered to assist in his return. It was noted that upon his return to work following the operation, his attitude changed, and he began to ignore other staff members. The Respondent made several attempts to address this issue however the complainant refused to engage. The Respondent offered the opportunity for the complainant to air his grievances. He did not take up this offer.

In April 2023, Mr Farrelly threatened another employee, James Denham with violence, squaring up to him in an episode of rage. Saying “Any more smart comments from you and you will get a dig”. Mr. Denham was shaken and intimidated by this incident. He changed his working arrangements so that he had less interaction with Mr Farrelly. Following an investigation in which Mr Farrelly admitted to the incident he was issued with a verbal warning.

At a staff meeting in November 2023, which Mr Farrelly attended, Mr Doyle raised his concerns about the lack of quality and consistency on jobs and the failure to complete projects on time. Mr Farrelly made no input into the meeting and did not raise any concerns about being unhappy or feeling under pressure. Mr Doyle asked all the team to make an extra effort and to work overtime or make any contribution to help. When his colleagues left the meeting, Mr Farrelly approached Mr Doyle in the office and indicated that he wouldn’t mind helping but that he would expect to be paid more. He didn’t help, but he left work every day at 5.00pm and he didn’t do any overtime.

On the 9th of January 2024 the Complainant approached Mr. Doyle. In front of staff members he announced that he did not trust or respect Mr. Doyle and that he wished to leave his employment. He also stated that he would not achieve the same salary he was in receipt of in his current employment. Both parties agreed to meet on the 12th of January 2024.

At that meeting, Mr Doyle asked the Complainant if he still felt the same about his job and if matters could be resolved. Mr Farrelly said that he wanted to leave immediately, but that he would need a payment as a gesture of goodwill. He said that he hadn’t got another job lined up and Mr Doyle asked him to consider staying on until he found something. The Complainant repeated that he wanted to leave immediately and that he wanted to be paid off. Mr Doyle said that he would speak to his accountant, Mr Séamus Keating over the weekend to get settlement terms drawn up. Contrary to what is stated in the Complainant’s submission, there was no discussion about redundancy at this meeting as the position was not being made redundant.

Mr Doyle contacted the Respondent’s accountant, Mr Seamus Keating, and over the course of that weekend drew up terms in accordance with the Complainants wishes. The monetary value amounted to €7,240. Mr. Keating then contacted the Complainant the following week and discussed the payment to him.

For a time following the 15th of January 2024, the Complainant discussed with the Respondent’s accountant the make-up of the monetary amount within the agreement. The Complainant then mentioned to Mr Keating that following enquiries to the department of Social Protection, if he was to leave in the way he wanted, he would not be able to receive Social Welfare benefits and he asked could the termination agreement be termed as a redundancy payment.

The Complainant wrote to the Respondent on the 29th of January 2024 inferring that his termination amounted to an unfair dismissal. In response the respondent offered the complainant his role back for which he has yet to receive a response.

It was never the intention of the respondent to dismiss the Complainant. It was the complainant who approached the respondent on the 9th of January 2024 wishing to leave his employment. He had no issue in approaching his employer and he knew who to approach. He says that he was under the impression that his role was being made redundant. This again is wholly incorrect as the Complainant approached the Respondent to terminate his employment.

Mitigation of Loss

The Respondent has not unilaterally terminated the employment of the Complainant. In circumstances where the Complainant approached the Respondent that he was no longer willing to carry out his contract and that he wishes to terminate same without notice, does not amount to a dismissal by the respondent. Upon the Complainant acknowledging that he would not find work that paid the same remuneration being paid by the Respondent and that the Department of Social Welfare would not provide unemployment payments due to a worker leaving their employment, the Respondent agreed to a settlement sum in regard to the termination thereof. This was agreed. There were no disciplinary issues arising which would require a procedure nor was there a requirement to reduce the workforce as being advanced by the Complainant

Evidence of the Complainant

The Complainant gave evidence on affirmation. He had worked previously for the Respondent’s predecessor but his service with the Respondent commenced on the 10th of October 2020 when Mr. Doyle took over and he helped Mr. Doyle to find other fitters. He ran the workshop and dealt with suppliers.

In previous years the custom was for Mr.Doyle to distribute Christmas bonuses to staff at the Christmas party. The Complainant did not attend the Christmas party in December 2023 and did not receive his bonus. On the morning of the 9th of January 2024, the Complainant asked Mr. Doyle if he could have a word with him about his (the Complainant’s) Christmas bonus. He recalled Karl Kenny  being there initially loading his van and then he started working on the saw at his workbench. Karl Kenny was wearing ear protection, and the mechanical saw was operating. He was about 20 feet away from the Complainant’s location. He would not have been able to hear anything of the conversation that took place between the Complainant and Mr. Doyle.

When they got to speak to each other, the Complainant said that he was not doing as much as he used to do, that he was down on the floor and that he was being left out. Mr Doyle said that the atmosphere had to change, that it couldn’t continue. The Complainant agreed and said that it was a horrible atmosphere and that it was depressing, and he was losing sleep over it. Mr. Doyle agreed and he then said that if he could have done certain things in the past differently, he would have. The Complainant understood this to mean moving him from the office to work all the time in the workshop.

Mr. Doyle said “It’s gotten to the stage where we don’t trust each other or have enough respect for each other. I’m sure you feel the same way”. The Complainant then laughed in disbelief or disagreement and replied, “Well I do now”. Mr. Doyle said, “I don’t know what else we can do to change the atmosphere”. The Complainant replied that he didn’t know either and Mr. Doyle repeated that really, he didn’t know what else to do. The Complainant then said: “The only other option is to let me go”. Mr. Doyle then said: “The two options are: we will try to work it out or we will let you go”. The Complainant did not respond, and Mr Doyle then said that they could meet again on the 12th of January 2024 and the Complainant agreed. The Complainant felt that the exchange ended amicably and there was no further conversation between them until the 12th of January 2024.

On the 12th of January 2024 the Complainant and Mr. Doyle met in the office. Nobody else was present. The meeting was short, about ten minutes in duration. Mr. Doyle said “I don’t think we’ll go with your option 1, we will go with your option number 2”. The Complainant was shocked and he just said “Ok like”. Mr. Doyle then said, “You can work two weeks’ notice or leave now”. The Complainant said that “it would probably easier if I left now” and a conversation regarding notice and redundancy then ensued. As regards whether the Complainant was to work out his notice, Mr. Doyle said that it would “be better if you left now”. The Complainant thought that it was he (i.e. the Complainant) who first mentioned a redundancy payment and he recalled that Mr. Doyle said that he would get on to Seamus (meaning Mr. Seamus Keating the Respondent’s accountant) about getting the redundancy payment and his wages.

As the Complainant was getting up to leave the meeting Mr. Doyle said, “Sorry Charlie, I didn’t mean for it to work out this way for you” (The Complainant was known as ‘Charlie’ at work). The Complainant confirmed that his understanding from the meeting was as follows: “I felt that I was gone. I felt that I had been dismissed at this meeting”.

The Complainant was asked by his solicitor to explain his understanding of a text exchange which was initiated by him with a colleague, Kieron McDonnell which was in the Respondent’s book of documents. The parties thought that the text exchange probably occurred on the same day as the meeting, the 12th of January 2024. The text conversation (where relevant) started with the Complainant asking Kieron McDonnell “We’re u in work 2day (shocked emoji)” to which Kieron McDonnell replied “No I was chatting to Dave earlier. No notice or anything? Fair play to you…”. The Complainant replied “Thanks I think [laughing emoji], Ah I think we both knew after we talked on Tuesday wat the outcome would b on Friday”.  the Complainant said that he and Kieron McDonnell “would talk to each other a bit” and Kieron McDonnell knew how he was feeling. He was somewhat surprised by the words “Fair play to you”.

During the month of January 2024 there were communications with Mr. Keating and a severance agreement was sent to him for signature. On the 29th of January 2024 the Complainant got advice from the Citizen’s advice bureau who drafted a letter for him which he sent to Mr. Doyle.

The letter stated as follows:

“With reference to my departure from [The Respondent], I have since sought advice on the matter and wish to address the following with you.

I am not willing to sign the contract issued to me as I am not in agreement with the information contained within. The period leading up to January 12th 2014 was an extremely stressful time for me as I am sure you were aware and I discussed this with you again on January 9th. The atmosphere in work had been very negative for a significant period of time and. Issues being left unresolved, further increases the tension.

I feel that if there had been policies in place for me to discuss any issues or grievances I had, that I would not be in the position I now find myself in.

I was of the impression that my role was being made redundant, as had been discussed on January 9th and therefore I feel I am not in a position to sign the contract you issued. I feel it is not a clear reflection on what was agreed. I have always taken great pride in my work and was always happy to adapt and step up as required. Therefore I feel the contract issued may have a negative impact on me going forward in my career. I would like to be able to resolve this issue swiftly and amicably, as I am sure I have always taken great pride in my work as was always happy to adapt and step up as required.

I would like the opportunity to discuss what was previously agreed.

I look forward to hearing from you.”

Mr. Doyle made several telephone calls to the Complainant, but the Complainant “deliberately avoided taking the calls” as he did not want to speak to Mr Doyle but wanted him to communicate in writing. The Complainant texted Mr. Doyle stating, “Whatever you have to say you can text or email it to me.” or words to that effect.

Mr. Keating emailed the Complainant on the 10th of February 2024 enclosing a severance agreement and requesting the Complainant to sign it before the 21st of February 2024 for the February payroll. The email made no mention of the letter which the Complainant had written to Mr. Doyle dated the 29th of January 2024. Mr. Keating sent a reminder email on the 20th of February 2024. The Complainant said in his evidence that he did not respond to these emails because he did not agree with the agreement which had been sent.

A payment was made into the Complainant’s bank account in early February 2024

Solicitors then acting for the Complainant wrote to the Respondent. This letter, dated the 11th of March 2024 stated as follows:

“…We are aware of the circumstances of Mr. Farrelly’s departure from your company. We are aware that you made a payment to our client last week. We wish to inform you that we have advised Mr. Farrelly that his dismissal amounts to an unfair dismissal for the purposes of the Unfair Dismissals Acts 1977-2015.

Further, Mr. Farrelly has instructed us to submit a complaint to the Workplace Relations Commission for Adjudication seeking compensation and we will be doing this in coming days.

Should you wish to discuss this matter please contact …” [The Complainant’s solicitor – mobile number provided]

A response to this letter was sent by Mr. Doyle to the Complainant’s then solicitors. The letter is undated, but it was accepted that it was received by the Complainant’s then solicitors on the 4th of April 2024. In this letter Mr. Doyle said as follows:

“I refer to your letter of March 11th concerning Colin Farrelly’s departure from [The Respondent] on January 12th 2024. I’m sorry to hear that Colin thinks he was dismissed. He informed me on January 9th that he didn’t respect or trust me, and that he wanted to leave.

I have no problem if Colin changed his mind about leaving and no hard feelings about his opinions of me. I didn’t dismiss him and, on condition that he repays the company the €7,799 which he accepted as a termination payment, he is welcome to come back to his job. I look forward to hearing from Colin before close of business on Tuesday, April 9th, to agree a date for his return.”

An issue arose as to another letter dated the 2nd of April 2024 which it was contended was sent by solicitors instructed by the Respondent. The Complainant’s solicitor said that this letter was not on his file, and he took the position that it had never been received. After some discussion the parties agreed that this letter would be excluded but it was accepted that the letter from Mr. Doyle quoted above was indeed received. As to that letter, the Complainant in his evidence said that when his solicitor read this letter to him on the telephone, his response was to ask how anyone could come back after so many months. He didn’t trust Mr. Doyle. Nothing which occurred between January and April 2024 changed his mind. In fact, he thought the atmosphere would have been more awkward.

In cross-examination it was put to the Complainant that he was operating a separate business prior to January 2024 and that this business was fully operational before that time. The Complainant said that he did a few small jobs through this business for family and friends but that there was no substantial trading being done until after he left the Respondent.

The Complainant denied that there were bad feelings between himself and Mr. Doyle prior to the meeting on the 12th of January 2024. He denied that he refused to sit down at that meeting. He denied that it was he who wanted to terminate his employment and he insisted that it was Mr. Doyle who wanted to go with this option. As regards working during his notice period the Complainant said that although Mr. Doyle did say that this was his preference, they “both agreed” that the Complainant would leave straight away.

It was put to the Complainant that when various draft agreements were sent to him, he never objected to the title “Termination Agreement” in that he did not insist on it being described as a redundancy. It was put to him that he asked for the payment to be described as redundancy, and he said that there was a possible “mix-up” in the use of the phrases; ‘termination’ and ‘redundancy’. The Complainant accepted that there were multiple interactions by email between himself and Mr. Keating, the Respondent’s accountant and that Mr. Keating was trying to “sort everything”. He didn’t sign the agreement because everything was wrong: the amount was not agreed; and the wording was not agreed and there was no point signing it if he and Mr. Doyle did not agree.

Regarding the offer to the Complainant to come back to work and to refund the monies paid out to him, it was put to the Complainant that he always knew between January and April 2024 that his job was still there for him and that he didn’t ask for it back because he had asked to be terminated. To this the Complainant said that he was not aware that his job was still available “because David let me go In January”. He was asked why when the Respondent wrote offering the job back in April 2024 he did not reply or reach out to Mr. Keating, and he said that “having spoken to my solicitor I felt that he [Mr. Doyle] did dismiss me.”

Regarding his losses the Complainant alleged that he sustained full losses for a period of six weeks totalling €5,376.90. He secured alternative employment from the 4th of March 2024 and resigned from that employment on the 11th of October 2024 and became self-employed thereafter. As of the initial hearing date he alleged a differential as between his weekly earnings with the Respondent and his subsequent employment of €311.53 per week for 32 weeks giving a differential loss of €9,968.96. He also contended for a future loss from his self-employment from November to the date of the resumed hearing on the 4th of February 2025. These figures were agreed by the parties subject to liability and subject to the Respondent’s right to allege failure to mitigate and failure to provide evidence of earnings and losses.

Evidence of the Respondent

David Doyle

Mr. David Doyle gave evidence on affirmation. He is the Managing Director of the Respondent. His relationship with the Complainant broke down in 2023. The Complainant was ignoring him and turning his back on him. When he asked the Complainant what could be done to resolve the situation the Complainant ignored him.

On the morning of Tuesday the 9th of January 2024 Mr. Doyle was in the office getting ready to do a call to a client. James Denham came up to the office because the Complainant would not interact with him. He and James Denham went downstairs to the Complainant’s workbench. A door had to be made, and Mr. Doyle asked the Complainant if he was going to make it. The Complainant said that he wanted a word with Mr. Doyle and Mr. Doyle said that he had to go to a meeting and James Denham, needed a door to be made. He asked the Complainant would Friday do for the meeting but the Complainant said he didn’t want to work late and he said that he wanted to have the meeting there and then. Mr. Doyle said that that it didn’t suit to have the meeting then but when the Complainant insisted, he said OK and asked the Complainant what he wanted to talk about. The Complainant said “I do not trust or respect you. I don’t want to work here anymore”. Mr. Doyle said, “OK do you want to leave and give your notice?” The Complainant replied, “No I won’t get the same pay as I make here in another job, so I need a payment to leave”. James Denham and Karl Kenny were present and heard this exchange but they both moved away at this stage. There were no raised voices. Mr. Doyle then asked the Complainant what they could do, could they “turn this around”. The Complainant said, “I don’t think so, it’s gone too far”. Mr. Doyle said “What options have we got going forward. 1 We try to work it out and you get more involved in the work or 2, If you want to leave, we would have to see what we could do.” Mr. Doyle said that he did not favour option number 2 as he would have difficulty replacing the Complainant. There was a mention of “a payment” but there was no mention of “redundancy”. They agreed to meet that Friday the 12th of January 2024.

Mr. Doyle and the Complainant met in the office at 4pm on Friday the 12th of January 2024. It was a one-to-one meeting. It was of very short duration, between 5 and 10 minutes. The Complainant was invited to sit but he said “I don’t want to sit down. This won’t take long”. Mr. Doyle asked the Complainant what his thoughts were after the meeting the previous Tuesday and the Complainant said “I want to leave. I’m not happy in this job”. When asked whether he had other jobs lined up the Complainant said no. Mr. Doyle told the Complainant that he was stuck for staff and he asked him if they could “turn this around” so he could stay. The Complainant said “No, I just want to go.”. Mr. Doyle asked, since the Complainant had nothing else lined up, could he stay the few weeks before he went and he could go for job interviews as needed, that he could just help out with the business. The Complainant replied, “No for my own head, I just want to go”.  Mr. Doyle said he was free to leave if he wanted and the Complainant said that he would need a payment. Mr. Doyle sad that he would discuss it with Seamus [Keating] and they (he and Mr. Keating) would work on it over the weekend for him. The Complainant agreed to that and asked how much he would get and how soon, to which Mr. Doyle replied that he would work on that over the weekend. Mr. Doyle again asked the Complainant to stay for two weeks and work out his notice and the Complainant again said that “for his own head” he had to go, and he asked whether he could go there and then, and Mr. Doyle agreed. As the Complainant was leaving, he said “sorry, this was not the way I wanted this to work out” and the Complainant replied “It is what it is” and left the meeting and left work. The Complainant was not dismissed. He wanted to leave, and the Respondent accommodated him.

When he received the letter from the Complainant dated the 29th of January 2024, Mr. Doyle tried to call the Complainant, but he didn’t pick up. He was calling the Complainant to discuss the letter. He did everything he could to resolve the situation. Regarding the reference to redundancy in the Complainant’s letter Mr. Doyle said that the Complainant hadn’t been replaced, that his job was still there. He was subsequently offered his job back, but he did not reply to the letter making this offer. The Complainant did not want to work his notice even though he was asked to do so. He wanted extra payments but eventually on the 27th of February 2024 a sum of €7,799.46 gross was paid to him of which he received €7,597.44 net of tax.

In cross-examination it was put to Mr. Doyle that paragraph 15 of the Respondent’s submission was incorrect and that the meeting in November 2023 related more to work being done to Mr. Doyle’s home by some of the workforce. He accepted that he did not ask the Complainant to do any of this work because the Complainant was not speaking to him at the time. Regarding the Christmas party, as the Complainant and Mr. Doyle were not speaking to each other, Mr. Doyle did not invite the Complainant to the party, but he was aware that Karl Kenny had told him about the arrangements. The Christmas bonuses took the form of gift cards. Mr. Doyle had bought a card for the Complainant and when he wasn’t at the party he planned to give it to him after Christmas. He did not give it to the Complainant before the 9th when the Complainant approached him about it because the Complainant was not talking to him. He denied that it was he who was not talking to the Complainant. As regards the conversation at the Complainant’s workbench on the 9th of January 2024, it was put to him that his evidence that the Complainant looked for a payment in this conversation was inconsistent with the submission. He insisted that his memory of the conversation as given in his evidence, was reliable. He did not accept that the conversation took place at a later time when the vans were being loaded. He denied that Karl Kenny had ear protection and that he was operating a saw and could not have overheard the conversation. As regards the poor atmosphere, Mr. Doyle insisted that it was the Complainant who first mentioned this issue. He did accept that the atmosphere existed from previous events. He denied that he made no attempt to fix the problem. He made multiple attempts to fix the problem by asking the Complainant how it had gotten to this point, but he accepted that there were no records of these attempts or of any of the conversations. As to whether the source of the ill-will was the Complainant’s failure to work on Mr. Doyle’s house, Mr. Doyle said that he never asked the Complainant to do this.

As regards the meeting on the 12th of January 2024 Mr. Doyle said that there was no discussion by either of them of redundancy. He denied that another named individual “GD” de facto replaced the Complainant. He said that this individual was and remains an independent contractor and he did not replace the Complainant.

As to the procedure followed in relation to the payment to the Complainant, Mr. Doyle said that he did get advice from a solicitor, and he also briefed his accountant Mr. Keating, but he accepted that Mr. Keating was paid by him and was not independent. He said that he also told the Complainant that he should get his own advice and he did go to the Citizen’s Advice Bureau. As regards the Complainant’s letter to him of the 29th of January 2024 Mr. Doyle did not accept that this was a rejection of his offer because the letter only stated that the Complainant was not in agreement with the information contained in the agreement. Also, although he was not sure if Mr. Keating was aware of the letter, he was aware that the negotiations with Mr. Keating continued after the letter was received. He reiterated that the letter only said that the information in the agreement was wrong. It was not a rejection; they were still in negotiations.

Mr. Doyle did not offer the job back until the 4th of April 2024 because the parties were still in negotiations over the amount of money to be paid to the Complainant. He never thought that the matter would end up at the WRC. As to why there was a delay between the Complainant’s solicitors’ letter of the 11th of March 2024 and the “job-back” offer on the 4th of April 2024, Mr. Doyle said that the Company was busy, and he was under a lot of stress. He totally disagreed that the letter was sent purely to mitigate his position in relation to the case presently being made by the Complainant and he insisted that the offer was genuine, and the role was available. 

It was put to Mr. Doyle that in July of 2024, he had failed to provide a reference for the Complainant when asked to do so by a hospital who wanted to hire the Complainant which resulted in the job offer being withdrawn. An email from the hospital to the Complainant’s solicitors dated the 15th of July 2024 was put to Mr. Doyle. Mr. Doyle said that he did not fail to respond to telephone calls from the Hospital. He had two telephone calls. A woman called him in relation to providing a reference and he said that he wanted to speak to someone. A man called him after this, and he said to this man that he was not is a position to give a reference but that he could confirm that the Complainant had worked for the Respondent. He did not give a negative reference, and he was never asked to give a written reference. As to why he did not say on the telephone that the Complainant had been a good employee or make positive statement about him, Mr. Doyle said that he was not obliged to do so. As regards the Complainant’s pay with the Respondent, the Hospital never asked about this.

It was put to Mr. Doyle that on the from the 9th to the 12th of January 2024, he presented the Complainant with a fait accompli in that the only solution to the dilemma was for the Complainant to leave. Mr. Doyle stated that it was the Complainant who asked to leave. 

James Denham

Mr. James Denham gave evidence on affirmation. He is a fitter employed by the Respondent. Prior to January 2024 relations as between himself and the Complainant had been strained after the Complainant had threatened to hit him. The Complainant stopped talking to other workers and there was tension. It was tough being there knowing that the Complainant would not talk to him. The situation was awkward.  On the morning of the 9th of January 2024, a door needed to be made by the Complainant, and it had yet to be done. Mr. Denham was reluctant to approach the Complainant, so he went up to the office and asked Mr. Doyle to come down to talk to him. The two of them went to the Complainant’s work area and Mr. Doyle asked the Complainant to make the door. Karl Kenny was present at his workstation beside the saw. The Complainant was annoyed and asked for a meeting with Mr. Doyle who said that he couldn’t meet then but that he could meet the Complainant on Friday. The Complainant insisted that he wanted the meeting then. He recalled the Complainant saying to Mr. Doyle “I don’t respect you. I don’t trust you. I want to discuss a mutual agreement on me leaving”.

In cross-examination it was put to him that his evidence was exactly the same as Mr. Doyle’s and he said that was because that is what happened. As regards the issue between himself and the Complainant he agreed that it was nine months prior to January 2024. Mr. Doyle’s letter to Mr. Denham dated the 25th of May 2023 was put to the witness (being Mr. Doyle’s response to his complainant against the Complainant). He agreed that the letter was very detailed even though it said that his own complaint had only been read on the same day it was issued. Mr. Denham said that Mr. Doyle was already aware of what had happened the previous day. The witness agreed that the way in which the issue between himself and the Complainant was handled was not the normal way of dealing with problems which would normally have been discussed and thrashed out. He did not know why this was not done in that instance.

Kieron McDonnell

Mr. Kieron McDonnell gave evidence on affirmation. He is a wardrobe fitter employed by the Respondent. He was not a witness to the conversation which occurred between the Complainant and Mr. Doyle on the 9th of January 2024.

He was on friendly terms with the Complainant. A text exchange between himself and the Complainant was referred to. He thought it took place on the 13th of January 2024. He was asked to explain what he meant when he sent the message: “No I was chatting to Dave earlier. No notice or anything? Fair play to you…”. He said that Mr. Doyle had informed him that the Complainant had walked out. On other occasions before then, in conversation with the Complainant, the witness said that the Complainant told him a few times that he wanted out of the Company. He was planning to leave for a while before January 2024. When he texted “Fair play to you” to the Complainant, he explained that he was a bit shocked that he had not given any notice. I was not really meant as a compliment.

The Complainant didn’t mention that he was going on holiday. He was aware that the Complainant was planning to take over or had already taken over his father’s business making frames and that he had bought a van. Although he could not be precise as to when he learned this, he thought it must have been before the Complainant left, perhaps a week beforehand as they were not in touch after the Complainant left.

In cross-examination he did not agree that his text was meant as congratulations. He said he would not have done what the Complainant did and that was the way he meant the message to be understood. The Complainant had told him a few times that he “didn’t want to be there” and the witness thought that his leaving the Respondent’s employment was a weight off his shoulders.

The witness has worked for the Respondent since August 2021 or thereabouts. He agreed that he himself has encountered ordinary stress in the workplace, but he did not agree that the Complainant was just expressing ordinary stress when talking about leaving. He did not tell the Complainant that he himself was leaving but he did say that if he did leave, he would leave the trade altogether. He agreed that he could not remember when the Complainant said that he had bought the van.

In relation to an individual GD, he said that he has done some work for the Respondent on about three occasions in the last year and a half and these hours have not increased.

Karl Kenny

Mr Karl Kenny gave evidence on affirmation. He is employed by the Respondent as a machinist. He works on the factory floor “downstairs”. He and the Complainant were colleagues, and they talked to each other from time to time. He recalled the 9th of January 2024. He was at work at around 9 -9:30 am. He was in the workshop at his workbench beside the circular saw. The Complainant, Mr. Denham and Mr. Doyle were all present. Mr. Doyle and Mr. Denham had come down from upstairs. Mr. Doyle was about to go out to visit a client. The witness said that he heard some words being exchanged between the Complainant and Mr, Doyle. He was trying not to listen, but he did hear the Complainant say to Mr. Doyle “I don’t trust you”.  He recalled Mr. Doyle saying that he was going to a meeting and then putting down his bag/briefcase. He “zoned out” after that and heard “very little” of what was said.

He was aware that the Complainant had another business, but he did not recall the Complainant telling him how it was going nor was he aware of the Complainant obtaining anything for his other business.

As for the Christmas party, the witness said that it was he who had organised it and the Complainant was aware of the party. 

It was put to him in cross-examination that he did not organise the Christmas party and that he did not invite the Complainant. He did not recall the Complainant raising the issue of the Christmas Bonus with Mr. Doyle at the start of the conversation. It was put to him that this was not a serious incident such that he would remember it, but the witness said that he did remember it. The only words which he heard were “I don’t trust you and I don’t respect you” from the Complainant and he also recalled Mr. Doyle saying that he was going out to a meeting and that the door had to be done. It was put to him that the only words he remembered were the same ones that his colleagues also remembered.

Seamus Keating

Mr. Seamus Keating gave evidence on affirmation.  He has been the Respondent’s accountant since 2020. He handles taxation, accounting, payroll and business administration for the Respondent.

On Friday afternoon the 12th of January 2024, Mr. Doyle was in shock. He told Mr. Keating that the Complainant was leaving that day without notice but that no resignation letter or written notice had been given. Mr. Doyle told him that the Complainant had said that “his head wasn’t in it” and that he wanted to leave that day. Mr. Doyle asked him to “do up the numbers” for the Complainant to leave on amicable terms. As the business was under pressure without the Complainant and given the frayed relationship between the Complainant and Mr. Doyle, Mr. Keating agreed to assist negotiating or mediating with the Complainant while he ran the business, which was significantly impacted by the Complainant’s departure, especially without working his notice period.

From the 16th of January to early February 2024 Mr. Keating had seven telephone calls with the Complainant totalling three and a half hours in time together with fifteen emails - eleven out and four back. The rapport was good up to the end of January 2024 and a lot of progress was made in that time.  He remembered asking the Complainant to return to the business or if not, then to stay on until he found something else, but this didn’t happen. The Complainant thanked him for the role he played. The Complainant suggested a total of five changes to the agreement and by the 17th of January 2024, Mr. Keating understood that a verbal agreement had been reached, and he hoped that the Complainant would sign a written agreement which he had drafted. Mr. Keating told the Complainant that the agreement was a “Termination Agreement”. He understood that the Complainant had received advice after that time because he said that he was not happy with the word “Termination” which he wanted changed to the word “Redundancy”. Mr. Keating said that he was not at that time aware that the Complainant had written to Mr. Doyle on the 31st of January 2024. Mr. Keating understood that the Complainant wanted the word “redundancy” used for social welfare purposes but he himself was uncomfortable using that word as the Complainant’s role still existed.  However, he got some advice from an employment lawyer who advised that the situation could be described as a redundancy, and he made that change and sent a sixth draft agreement to the Complainant on the 10th of February 2024. As the Complainant had not reverted with the payroll cut-off date on the 22nd of February 2024 approaching, Mr. Keating emailed the Complainant asking him to sign the agreement. It was around this time that Mr. Keating became aware of the letter which the Complainant had sent to Mr. Doyle on the 29th of January 2024, and he was disappointed to see that it now appeared that the Complainant was going down the grievance route. He did not press the issue any further with the Complainant. The payment to the Complainant was put through on the 27th of February 2024 and a payslip was sent to him on the 5th of March 2024. Mr. Keating expressed the opinion that the payment was generous, and that the Respondent didn’t have to make it. He expressed regret that the payment did not resolve the issue. Mr. Keating said that in his view the Complainant made a decision to leave his employment, but he didn’t want to proceed without a payment. He was asked to stay until he found other work or at least to work his notice but he refused to do this, and the Respondent relented and agreed to pay the Complainant in lieu of notice and allowed him to leave on the 12th of January 2024.

In cross-examination, Mr. Keating accepted that he was not present at the meeting between Mr. Doyle and the Complainant on the 12th of January 2024, but he said that Mr. Doyle did speak to him within half an hour of its conclusion and gave him what he thought to have been an accurate account of the meeting. 

Mr. Keating accepted that he was retained and paid by the Respondent and that he was not a mediator, but he said that he tried to act as impartially as he could. Out of fear for not being impartial he did advise the Complainant to get advice, and he understood that that is what the Complainant was doing some time around the 16th of January 2024. He recalled the Complainant saying that he was going to Citizen’s Advice.  The payroll date for January 2024 passed and things went quiet. The Complainant’s solicitor’s letter of the 12th of March 2024 was put to the witness. He said that when he saw the letter from the Complainant to Mr. Doyle of the 31st of January 2024 he thought/presumed that he had received legal advice around that time but then the Complainant reverted and looked for the insertion into the agreement of the word “redundancy”.

Mr. Keating denied absolutely that he ever gave the Complainant advice. He could not do so due to a conflict of interest. He was proposing an agreement on behalf of Mr. Doyle while attempting to mediate as well. He used his best endeavours to find a mutually agreeable solution. As to his role, he said that the Company had no HR department, and the Company needed the issue dealt with. He was trying to do his best for an employee who was leaving after long service. He said that maybe he should have left the Complainant go empty-handed. As it happened the Company gave him a tax-free lump sum.

It was put to Mr. Keating that he could have been perceived to have unduly influenced the Complainant in relation to the contract. [It was specifically clarified that Mr. Keating was not being accused of having actually exerted undue influence or having behaved unprofessionally]. Mr. Keating said that a “legal advice clause” was contained in every single version of the agreement sent to the Complainant. [This was accepted on behalf of the Complainant]. It was put to Mr. Keating that the first version was a Redundancy Agreement, and it was later changed but Mr. Keating said that the first draft was simply headed “Agreement”     

When asked why the Complainant did not sign the last version of the agreement Mr. Keating said that he was at a loss and dumbfounded until he saw the letter from the Complainant to Mr. Doyle of the 31st of January 2024. He said that “it looked like reverse engineering” where the situation “was now portrayed as a dismissal” and that the matter was going down a litigious route.

It was put to Mr. Keating that his evidence did not match the timeline of the events. Mr. Keating accepted that he was not sure as to exactly when he became aware of the Complainant’s letter to Mr. Doyle of the 31st of January 2024 or when he got legal advice.  

An email exchange between himself and the Complainant which occurred on the 18th and 19th of January 2024 was opened. 

In this email exchange, on the 18th of January 2024, the Complainant wrote:

“Look I want this sorted as soon as possible as well, but I’m not going to sign anything until I fully know what your[’e] asking me to sign.

I could not give you an answer on the phone as I am waiting for someone in citizens advice to get back to me.

I just want to make sure I understand what you said on the phone. I can either [accept] the €8,000 net pay by the end of this week or go back and work my 2 weeks notice in [the Respondent]?”

Mr. Keating’s reply the next day stated:

“You already have a copy of the Termination Agreement – the only modification required will be to increase the ex-gratia payment by 760 since the Company has agreed to bring the net payment to you up to €8,000 from the 7,240 in the interests of bringing all matters to a conclusion.

I understand that you are taking advice on the matter so you might confirm when you are happy to sign so that I can make the modification above and send final agreement to you for signing”

Mr. Keating said that he delivered everything that the Complainant asked for by the final version of the agreement and that the Complainant refused to sign it on a point of principle.     

The Onus of Proof

Section (6) subsection (1) of the Unfair Dismissals Acts 1977-2015 provides as follows:

“Subject to the provisions of this section, the dismissal of an employee shallbe deemed, for the purposes of this Act, to be an unfair dismissal unless, havingregard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section (6) Subsection (6) places the onus on the employer to establish that the dismissal was fair (the so-called reversed onus of proof) as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

In the present case dismissal was a factual issue which was disputed. In such circumstances, the onus of proof rests on the Complainant to establish as a matter of fact that he was dismissed. Only when dismissal as a fact is established does the onus of proof shift to the Respondent pursuant to Section 6 subsections (1) and (6). In this regard, insofar as the Complainant contended in his submission that, “this is not a constructive dismissal complaint and the burden is on the employer” that is incorrect. 

“Dismissal”

Section 1 of the Unfair Dismissals Act 1977 (as amended) defines dismissal (where relevant to the present case) as follows:

“dismissal”, in relation to an employee, means—

(a)    the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)    the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer…”

In Devaney v DNT Distribution Company Ltd  UD 412/1993, the Employment Appeals Tribunal held that,

“... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

In “Redmond on Dismissal Law,” by Desmond Ryan, (3rd edition, Bloomsbury 2017), the general understanding of “dismissal” is described at paragraph 22.13 as follows:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or it may be reasonably be inferred as having been intended.”

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v. Joseph McManus  UDD1753,  decided in 2017, the Labour Court held as follows,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined.”

The Complainant contended that he was dismissed on the 12th of July 2024 in that he alleged that he left that meeting with the reasonable understanding that his employment had ended. This was flatly contradicted by Mr. Doyle the only other party to that meeting. He contended that it was the Complainant who proposed that he would leave his employment and that he would need a payment for this to come about. He said that he reluctantly agreed to this proposal and, also reluctantly, to the Complainant finishing work that day. The payment was to be finalised by his accountant and agreed between them.

Although the Complainant has specifically alleged that he understood after the meeting on the 12th of July 2024 that his employment had ended, in the absence of a letter of dismissal or a letter of resignation, I will also consider the wider question as to whether in all of the circumstances it was reasonable for the Complainant to understand that it was the Respondent’s intention to dismiss him.

The Complainant’s case was very specific. His entire case was built upon a single issue, that on the 12th of January 2024 he was dismissed by the Respondent.  When the present proceedings were initiated by way of WRC Complainant form (received on the 28th of March of 2024) the alleged date of dismissal was identified as the 12th of January 2024. This was also repeated in submissions and in his evidence

In his evidence on affirmation the Complainant repeatedly asserted that he had been dismissed by Mr. Doyle at the meeting on the 12th of July 2024 and on that date alone. He did not allege unreasonable behaviour or breach of contract such as left him with no choice but to resign; rather he alleged that he was actually dismissed by the Respondent and on that date. He did not make an argument in the alternative, that if he did resign on the 12th of July 2024 or on any other date, that such a resignation constituted a constructive dismissal, nor did he allege that his actual dismissal occurred on any date subsequent to the 12th of July 2024. For this reason, I must assess the available evidence to determine the central question which is whether on the 12th of July 2024 an actual dismissal occurred. 

Having heard detailed and comprehensive evidence from the Complainant and Mr. Doyle and from the two other employees who were present on the 9th of January 2024 (but not on the 12th), I am driven to the conclusion that none of them has a reliable recollection of exactly what was said on the 9th of January 2024 and that the evidence of the Complainant and of Mr. Doyle  (and only they were present) as to what was said on the 12th of January 2024 is also unreliable.

There is no doubt that both the Complainant and the Respondent were unhappy with the tension that existed between them.  Whilst it was not the case that the Complainant was refusing to talk to anyone as he appears to have had conversations with Mr. McDonnell and Mr. Kenny, there were tensions between himself and Mr. Doyle and also between himself and Mr. Denham.  No finding is required as to who was to blame for these tensions or how they arose and for the purposes of this decision I merely find as a fact that there were tensions and in particular there was tension between Mr. Doyle and the Complainant. Following from this finding and based on Mr. Kenny’s evidence, I am satisfied that the Complainant was not excluded from the Christmas party but rather absented himself and the likely cause of this was the tension between the Complainant and Mr. Doyle and probably also Mr. Denham. It is likely that the Complainant was unhappy about not receiving his Christmas bonus, but I accept Mr. Doyle’s evidence that he would have given it to the Complainant as he did to everyone else had the Complainant attended the party. As to the alleged delay between Christmas and the 9th of January 2024 when the issue was raised by the Complainant, I do not think that this delay was unreasonable, particularly as Mr. Doyle would have been apprehensive approaching the Complainant at all given the tension between them. I am also satisfied that the Complainant was unhappy in his work with the Respondent and that he did say to Mr. McDonnell that he had another business and was planning on leaving. These findings all tend to point towards a scenario where the Complainant was the one who first suggested that he would leave the Respondent’s employment but they do not conclusively do so and most importantly they do not prove what was actually said in the ten-minute meeting that took place on the 12th of January 2024.

Regardless of who initiated the process and who alleged a lack of trust and respect it is clear that there was a lack of trust and respect between the Complainant and Mr. Doyle, which was mutual. This being so, I find that it is probable that both parties were in an agitated state when the meeting took place. To make the situation even worse, no other party was present at this meeting to take a note, and no written communications were undertaken immediately after the meeting to clarify what had been said, and what (if anything) had been agreed. If even the bare minimum precaution had been taken by the Respondent of issuing an email immediately after the meeting, recording its content and outcome, it is very likely that the present case would not have gone to law as it did or possibly at all.

For this reason and because the situation was legally complex, both parties would have benefited greatly from independent professional advice prior to the meeting, and I would go further and suggest that the entire process that was being attempted should have been handled by independent agents on each side and/or by a single independent facilitator such as a mediator. In fairness to Mr. Dolye, he did brief Mr. Keating, a qualified accountant if not before but immediately following the meeting.  In fairness to Mr. Keating, he did his best to undertake negotiations with the Complainant as soon as he was briefed and the Complainant very fairly clarified that he was not suggesting that Mr. Keating behaved in any way other than in good faith. The only criticism that the Complainant made of Mr. Keating was that he put the Complainant under pressure to sign the agreement in February 2024. Having considered Mr Keating’s evidence I accept that he did so to get the Complainant’s severance package through the payroll before the shut off time in February 2024. In such circumstances this does not constitute unfair coercion or undue pressure. In any event even if the Complainant was put under unfair pressure, he never signed any agreement and thus he did not suffer any prejudice.

Having decided to exclude any evidence as to what was said leading up to the meeting on the 12th of January 2024 and in the light of my concern as to the reliability of the recollection of either party at the meeting, I will proceed to assess what emerged from the meeting as a possible indicator as to what occurred at the meeting.

After the meeting, the Complainant did not immediately protest his alleged dismissal in writing or at all. He left work on the 12th of July 2024 and never returned. He then engaged with Mr. Keating throughout the remainder of the month of January and well into February 2024 and I find as a fact that at no stage did he ever indicate to Mr. Keating that it was his understanding that he had been dismissed and it is also the case they did not discuss the letter which the Complainant wrote to Mr Doyle on the 29th of January 2024. As regards that letter itself, there was no mention in its text of the Complainant’s understanding that he had been dismissed on the 12th of January 2024. Moreover, despite the clear invitation at the end of that letter “I would like the opportunity to discuss what was previously agreed. I look forward to hearing from you.” and the fact that Mr. Doyle called the Complainant immediately on receiving it, the Complainant, as he said in his evidence at the hearing, “deliberately avoided taking the calls”. He explained this position on the basis that he wanted Mr. Doyle to communicate in writing but a plain reading of the text of the letter reveals that the Complainant wished to “discuss” the situation. 

I have already dealt with the run up to the making of the payment to the Complainant in the context of what Mr. Keating was attempting to do. As to the making of the payment itself, it was not asserted by the Complainant that the making of what in effect was a unilateral payment in the absence of a written agreement, was an act of dismissal. Although the letter from the Complainant’s solicitor of the 11th of March 2024 referred to the payment and alleged (for the first time) unfair dismissal, it was not alleged in that letter or at the hearing, in submissions or evidence that the dismissal had been brought about by that payment. Instead, the contention was clearly and repeatedly made at the adjudication hearing, that the date of the alleged dismissal was the 12th of July 2024, i.e. that it had, on the Complainant’s case, already occurred.

As to the retention of the monies by the Complainant, the Respondent for its part did not go as far as to assert that the retention of the monies by the Complainant by itself estopped him (i.e. prevented him by reason of his own conduct) from maintaining his claim altogether. Rather the Respondent pointed to the fact that the Complainant was invited to return the monies if he wished to return to his duties and having failed to avail of this facility, he could not reasonably maintain his claim.

I have considered the issue of the unilateral payment and its retention, and my conclusion is that when applied to the circumstances of this case, where the dismissal was alleged to have already taken place before the monies were paid out and retained, the issue of the payment itself does not assist in the determination of the question of whether a dismissal was effected, as alleged at the meeting on the 12th of January 2024. The Complainant’s solicitors’ letter of the 11th of March 2024 does not cite the making of the payment as being an act of dismissal nor does it cite the date of the payment as being the date of dismissal. That date, as already discussed, was clearly cited as the 12th of January 2024. I also note that when dismissal was alleged, it was denied in writing by the Respondent. 

The final issue of possible relevance is why the Complainant did not return to work or indicate an intention to return to work. The Respondent argued that the Complainant could have returned to work on foot of the offer made in the letter of the 4th of April 2024. The Complainant’s reasons for not doing as given in direct examination were: that he questioned how anyone could come back after so many months; that he didn’t trust Mr. Doyle and that nothing which occurred between January and April 2024 changed his mind. In fact, he thought the atmosphere would have been more awkward. He said that he had lost trust in the Respondent. Later, under cross-examination he did not accept that he was aware that his job was still available, “because David let me go In January”. He was asked why, when the Respondent wrote offering the job back in April 2024, he did not reply or reach out to Mr. Keating, and he said that “having spoken to my solicitor I felt that he [Mr. Doyle] did dismiss me.” I have considered whether the issue of the offer of returning to his job as made to the Complainant sheds any light on the central issue as to whether the Complainant was dismissed on the 12th of July 2024. I conclude that it does not assist in that assessment because on the Complainant’s case he was actually – not constructively - dismissed on the 12th of January. If he was actually dismissed on that date, then he was entitled to accept that situation (even belatedly) and to refuse to return to work and thus the issue of unreasonable refusal of the offer does not arise. If on the other hand he was not actually dismissed on the 12th of January 2024 then the only other argument that could be relevant to dismissal is whether he was constructively dismissed on that date or subsequently, which is a case which the Complainant did not make. For this reason, the entire issue and how it was handled by the parties sheds no light on whether the Complainant was dismissed as alleged, some three months previously.

My overall analysis of and my finding in relation to what occurred is that on the 9th and 12th of January 2024, the parties came to a conditional verbal agreement that the Complainant’s employment had ended or would end my mutual agreement and that he would receive a severance package, the details of which were at that stage yet to be agreed. The verbal agreement led to the immediate and agreed cessation of the Complainant’s work but instead of immediately protesting what he later alleged was his dismissal, the Complainant then engaged with the Respondent’s accountant over a period of three weeks or so to finalise the details of his departure from the Respondent’s employment. He was never informed at any stage by the Respondent (including Mr. Keating with whom he was negotiating) that he had been or was going to be dismissed, nor did he himself make that case in his letter to Mr. Doyle of the 29th of January 2024. Despite inviting Mr. Doyle to discuss the issues canvassed in that letter, the Complainant deliberately did not take his calls. Moreover, he continued to engage with Mr. Keating and the letter was not discussed. The first indication that the Complainant was contending that he had been dismissed was when he instructed his solicitor to write to the Respondent on the 11th of March 2024 but even then, the date of the alleged dismissal was not set out clearly. However, when the present proceedings were instituted on the 28th of March 2024 by way of WRC Complaint Form, in submissions and in evidence, the date of dismissal alleged was the 12th of March 2024. On the 4th of April 2024 when the Respondent wrote to the Complainant’s solicitor, dismissal was denied.

In all of the circumstances, although it is difficult to establish what exactly happened, I find on the balance of probability that the Complainant left the meeting on the 12th of January 2024 on the understanding that his employment had already or would terminate by mutual agreement rather than by dismissal. I am satisfied on the balance of probability that there is insufficient reliable and credible evidence to support the Complainant’s contention either that he was advised unequivocally that his employment had been terminated, or that he did leave or could have left the meeting with a reasonable belief that his employer had dismissed or intended to dismiss him.  The Complainant has thus failed to establish that he was dismissed.  Accordingly, there was no dismissal and thus the claim for unfair dismissal cannot succeed.

I conclude that the Complainant was not unfairly dismissed. 

CA-00062494-001 - The Complainant was not unfairly dismissed

Unfair Dismissals Acts 1977-2015 – Section 6 (1) and 6 (6) – Section 1 – Definition of Dismissal – Dismissal in dispute – Onus of Proof - Redmond on Dismissal Law 3rd Ed. -  Devaney v DNT Distribution Company Ltd  UD 412/1993 - Longford County Council v. Joseph McManus  UDD1753 – Fact of dismissal

Complainant

Respondent

Parties

Colin  Farrelly

Ddbk Limited Skon

Representatives

Ferrys Solicitors

Andrea Montanelli Peninsula

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-00062494-001

28/03/2024

The Complainant commenced employment with the Respondent on the 10th of October 2020. His remuneration was agreed at €3,883.33 per month gross. The Complainant made a single claim for Unfair Dismissal pursuant to Section 8 of the Unfair Dismissals Acts 1977 - 2015. Dismissal was in dispute. The Complainant alleged that he was dismissed on the 12th of July 2024.

The Complainant made a claim for Unfair Dismissal by way of WRC Complaint Form, received by the WRC on the 28th of March 2024. The date when the employment ended was stated as the 12th of January 2024. The Submission Page on that form stated:

“I was unfairly dismissed my by former employer DDBK Limited (Trading as SKON) by way cloaked redundancy.”

A submission was delivered before the evidence was heard, in summary, making the following points:

This complaint relates to a dispute as to the facts. The Complainant submits that he did not resign from his employment. He submits that he was dismissed. The Complainant submits that this is not a constructive dismissal complaint, and the burden is on the employer. The Complainant submits that he was informed that he was being made redundant with immediate effect when he was dismissed on the 12th of January 2024.

The Complainant’s position is that he was unfairly dismissed by way of a sham or cloaked redundancy.

The end of the Complainant’s employment was not of his own choosing. Rather the Complainant was placed into a difficult situation where he was informed that he would be dismissed and that the company would offer him payment to leave in exchange for his signature on a contract document. The Respondent did not ask the Complainant to seek legal advice regarding signing the agreement, despite its terms requiring him to waive his statutory rights. The Complainant did not sign the agreement.

There was a deterioration in the working relationship between the Complainant and the Respondent’s Managing Director, Mr. David Doyle who began actively to dislike the Complainant from January 2022. Mr. Doyle abruptly informed the Complainant that he would be required to work exclusively on the shop floor which the Complainant considered to be a demotion. Mr. Doyle’s dislike for the Complainant spread to other employees. He left a WhatsApp group in March 2023 as he did not like some of the comments being made by other employees who were members of the group. He took to eating lunch in his van. Mr. Doyle did not address the issues that had arisen by way of internal procedures or mediation. The Complainant received a verbal warning in April 2023 following an altercation with a colleague (James Denham) and Mr. Doyle sided entirely with the other party. The Complainant was not invited to and did not attend the Christmas party in December 2023 the details of which, he presumed, were shared on the WhatsApp group which he had left. The Christmas bonuses were distributed at that party by Mr. Doyle. 

On the 9th of January 2024 the Complainant approached Mr. David Doyle on the shop floor and asked whether he would receive a Christmas bonus, as all other employees had. There ensued a discussion about the Complainant’s position in the company, and as Mr. Doyle put it “the atmosphere” between Mr. Farrelly and himself. The Complainant was taken by surprise by the direction of the conversation and by Mr. Doyle’s comments in this regard. Mr. Doyle said, “We can either sort this out or part ways”. He then suggested that they would meet in his office that Friday the 12th of January 2024 at 4 pm to discuss further.

At that meeting on the 12th of January 2024, Mr. Farrelly went to Mr. Doyle’s office. Mr. Doyle made reference to his comments of the [9th of January 2024] and said “to be honest I don’t think the first option is going to work out”.  He then proceeded to inform the Complainant that he was redundant. He made clear that there was no job in the company for Mr. Farrelly and this would take effect immediately.

Mr. Doyle suggested that Mr. Farrelly would receive a “redundancy payment” for his “redundancy”. He further stated that Mr. Farrelly would not be required to work out his notice period, instead he could receive payment in lieu of notice and leave immediately.

On what he reasonably understood to be the end of his employment, the Complainant did not return to work after this day. He understood his employment to be over.

A series of discussions then ensued between the Complainant and Mr. Keating, the Respondent’s accountant. A number of draft agreements were sent to the Complainant.

[Details of correspondence, email exchanges and the sequence of events were presented and these are discussed as they arose in the evidence in the Findings Section of this decision below] 

The Complainant did not sign any of the draft agreements, yet a payment was made into his bank account in the first week in March 2024 without his knowledge or consent. He did not accept it as consideration for any agreement. He understood this payment to include outstanding wages, annual leave, notice pay and a statutory redundancy payment. The Complainant’s Revenue Account shows that his employment with the Respondent ceased on the 31st of January 2024.

It was contended that in May 2024, when the Complainant had secured a position working for a hospital which was subject to references, the Respondent had failed to provide a reference for the Complainant and he did not secure the job, which frustrated his efforts to mitigate his loss.

The Respondent delivered a written submission which, in summary, contained the following points:

The Complainant commenced employment on the 1st of October 2020 as a production/ fitter. His annual salary was €46,000. He has lodged one complainant to the Workplace Relations Commission (WRC) under s.8 of the Unfair Dismissals Act 1977. He alleges that he was unfairly dismissed by reason of redundancy where that redundancy process was flawed. The Respondent wholly denies this claim and disputes the dismissal of the complainant.

In November 2021, the Complainant took leave in order to have a hernia operation. Again, his work was altered to assist in his return. It was noted that upon his return to work following the operation, his attitude changed, and he began to ignore other staff members. The Respondent made several attempts to address this issue however the complainant refused to engage. The Respondent offered the opportunity for the complainant to air his grievances. He did not take up this offer.

In April 2023, Mr Farrelly threatened another employee, James Denham with violence, squaring up to him in an episode of rage. Saying “Any more smart comments from you and you will get a dig”. Mr. Denham was shaken and intimidated by this incident. He changed his working arrangements so that he had less interaction with Mr Farrelly. Following an investigation in which Mr Farrelly admitted to the incident he was issued with a verbal warning.

At a staff meeting in November 2023, which Mr Farrelly attended, Mr Doyle raised his concerns about the lack of quality and consistency on jobs and the failure to complete projects on time. Mr Farrelly made no input into the meeting and did not raise any concerns about being unhappy or feeling under pressure. Mr Doyle asked all the team to make an extra effort and to work overtime or make any contribution to help. When his colleagues left the meeting, Mr Farrelly approached Mr Doyle in the office and indicated that he wouldn’t mind helping but that he would expect to be paid more. He didn’t help, but he left work every day at 5.00pm and he didn’t do any overtime.

On the 9th of January 2024 the Complainant approached Mr. Doyle. In front of staff members he announced that he did not trust or respect Mr. Doyle and that he wished to leave his employment. He also stated that he would not achieve the same salary he was in receipt of in his current employment. Both parties agreed to meet on the 12th of January 2024.

At that meeting, Mr Doyle asked the Complainant if he still felt the same about his job and if matters could be resolved. Mr Farrelly said that he wanted to leave immediately, but that he would need a payment as a gesture of goodwill. He said that he hadn’t got another job lined up and Mr Doyle asked him to consider staying on until he found something. The Complainant repeated that he wanted to leave immediately and that he wanted to be paid off. Mr Doyle said that he would speak to his accountant, Mr Séamus Keating over the weekend to get settlement terms drawn up. Contrary to what is stated in the Complainant’s submission, there was no discussion about redundancy at this meeting as the position was not being made redundant.

Mr Doyle contacted the Respondent’s accountant, Mr Seamus Keating, and over the course of that weekend drew up terms in accordance with the Complainants wishes. The monetary value amounted to €7,240. Mr. Keating then contacted the Complainant the following week and discussed the payment to him.

For a time following the 15th of January 2024, the Complainant discussed with the Respondent’s accountant the make-up of the monetary amount within the agreement. The Complainant then mentioned to Mr Keating that following enquiries to the department of Social Protection, if he was to leave in the way he wanted, he would not be able to receive Social Welfare benefits and he asked could the termination agreement be termed as a redundancy payment.

The Complainant wrote to the Respondent on the 29th of January 2024 inferring that his termination amounted to an unfair dismissal. In response the respondent offered the complainant his role back for which he has yet to receive a response.

It was never the intention of the respondent to dismiss the Complainant. It was the complainant who approached the respondent on the 9th of January 2024 wishing to leave his employment. He had no issue in approaching his employer and he knew who to approach. He says that he was under the impression that his role was being made redundant. This again is wholly incorrect as the Complainant approached the Respondent to terminate his employment.

Mitigation of Loss

The Respondent has not unilaterally terminated the employment of the Complainant. In circumstances where the Complainant approached the Respondent that he was no longer willing to carry out his contract and that he wishes to terminate same without notice, does not amount to a dismissal by the respondent. Upon the Complainant acknowledging that he would not find work that paid the same remuneration being paid by the Respondent and that the Department of Social Welfare would not provide unemployment payments due to a worker leaving their employment, the Respondent agreed to a settlement sum in regard to the termination thereof. This was agreed. There were no disciplinary issues arising which would require a procedure nor was there a requirement to reduce the workforce as being advanced by the Complainant

Evidence of the Complainant

The Complainant gave evidence on affirmation. He had worked previously for the Respondent’s predecessor but his service with the Respondent commenced on the 10th of October 2020 when Mr. Doyle took over and he helped Mr. Doyle to find other fitters. He ran the workshop and dealt with suppliers.

In previous years the custom was for Mr.Doyle to distribute Christmas bonuses to staff at the Christmas party. The Complainant did not attend the Christmas party in December 2023 and did not receive his bonus. On the morning of the 9th of January 2024, the Complainant asked Mr. Doyle if he could have a word with him about his (the Complainant’s) Christmas bonus. He recalled Karl Kenny  being there initially loading his van and then he started working on the saw at his workbench. Karl Kenny was wearing ear protection, and the mechanical saw was operating. He was about 20 feet away from the Complainant’s location. He would not have been able to hear anything of the conversation that took place between the Complainant and Mr. Doyle.

When they got to speak to each other, the Complainant said that he was not doing as much as he used to do, that he was down on the floor and that he was being left out. Mr Doyle said that the atmosphere had to change, that it couldn’t continue. The Complainant agreed and said that it was a horrible atmosphere and that it was depressing, and he was losing sleep over it. Mr. Doyle agreed and he then said that if he could have done certain things in the past differently, he would have. The Complainant understood this to mean moving him from the office to work all the time in the workshop.

Mr. Doyle said “It’s gotten to the stage where we don’t trust each other or have enough respect for each other. I’m sure you feel the same way”. The Complainant then laughed in disbelief or disagreement and replied, “Well I do now”. Mr. Doyle said, “I don’t know what else we can do to change the atmosphere”. The Complainant replied that he didn’t know either and Mr. Doyle repeated that really, he didn’t know what else to do. The Complainant then said: “The only other option is to let me go”. Mr. Doyle then said: “The two options are: we will try to work it out or we will let you go”. The Complainant did not respond, and Mr Doyle then said that they could meet again on the 12th of January 2024 and the Complainant agreed. The Complainant felt that the exchange ended amicably and there was no further conversation between them until the 12th of January 2024.

On the 12th of January 2024 the Complainant and Mr. Doyle met in the office. Nobody else was present. The meeting was short, about ten minutes in duration. Mr. Doyle said “I don’t think we’ll go with your option 1, we will go with your option number 2”. The Complainant was shocked and he just said “Ok like”. Mr. Doyle then said, “You can work two weeks’ notice or leave now”. The Complainant said that “it would probably easier if I left now” and a conversation regarding notice and redundancy then ensued. As regards whether the Complainant was to work out his notice, Mr. Doyle said that it would “be better if you left now”. The Complainant thought that it was he (i.e. the Complainant) who first mentioned a redundancy payment and he recalled that Mr. Doyle said that he would get on to Seamus (meaning Mr. Seamus Keating the Respondent’s accountant) about getting the redundancy payment and his wages.

As the Complainant was getting up to leave the meeting Mr. Doyle said, “Sorry Charlie, I didn’t mean for it to work out this way for you” (The Complainant was known as ‘Charlie’ at work). The Complainant confirmed that his understanding from the meeting was as follows: “I felt that I was gone. I felt that I had been dismissed at this meeting”.

The Complainant was asked by his solicitor to explain his understanding of a text exchange which was initiated by him with a colleague, Kieron McDonnell which was in the Respondent’s book of documents. The parties thought that the text exchange probably occurred on the same day as the meeting, the 12th of January 2024. The text conversation (where relevant) started with the Complainant asking Kieron McDonnell “We’re u in work 2day (shocked emoji)” to which Kieron McDonnell replied “No I was chatting to Dave earlier. No notice or anything? Fair play to you…”. The Complainant replied “Thanks I think [laughing emoji], Ah I think we both knew after we talked on Tuesday wat the outcome would b on Friday”.  the Complainant said that he and Kieron McDonnell “would talk to each other a bit” and Kieron McDonnell knew how he was feeling. He was somewhat surprised by the words “Fair play to you”.

During the month of January 2024 there were communications with Mr. Keating and a severance agreement was sent to him for signature. On the 29th of January 2024 the Complainant got advice from the Citizen’s advice bureau who drafted a letter for him which he sent to Mr. Doyle.

The letter stated as follows:

“With reference to my departure from [The Respondent], I have since sought advice on the matter and wish to address the following with you.

I am not willing to sign the contract issued to me as I am not in agreement with the information contained within. The period leading up to January 12th 2014 was an extremely stressful time for me as I am sure you were aware and I discussed this with you again on January 9th. The atmosphere in work had been very negative for a significant period of time and. Issues being left unresolved, further increases the tension.

I feel that if there had been policies in place for me to discuss any issues or grievances I had, that I would not be in the position I now find myself in.

I was of the impression that my role was being made redundant, as had been discussed on January 9th and therefore I feel I am not in a position to sign the contract you issued. I feel it is not a clear reflection on what was agreed. I have always taken great pride in my work and was always happy to adapt and step up as required. Therefore I feel the contract issued may have a negative impact on me going forward in my career. I would like to be able to resolve this issue swiftly and amicably, as I am sure I have always taken great pride in my work as was always happy to adapt and step up as required.

I would like the opportunity to discuss what was previously agreed.

I look forward to hearing from you.”

Mr. Doyle made several telephone calls to the Complainant, but the Complainant “deliberately avoided taking the calls” as he did not want to speak to Mr Doyle but wanted him to communicate in writing. The Complainant texted Mr. Doyle stating, “Whatever you have to say you can text or email it to me.” or words to that effect.

Mr. Keating emailed the Complainant on the 10th of February 2024 enclosing a severance agreement and requesting the Complainant to sign it before the 21st of February 2024 for the February payroll. The email made no mention of the letter which the Complainant had written to Mr. Doyle dated the 29th of January 2024. Mr. Keating sent a reminder email on the 20th of February 2024. The Complainant said in his evidence that he did not respond to these emails because he did not agree with the agreement which had been sent.

A payment was made into the Complainant’s bank account in early February 2024

Solicitors then acting for the Complainant wrote to the Respondent. This letter, dated the 11th of March 2024 stated as follows:

“…We are aware of the circumstances of Mr. Farrelly’s departure from your company. We are aware that you made a payment to our client last week. We wish to inform you that we have advised Mr. Farrelly that his dismissal amounts to an unfair dismissal for the purposes of the Unfair Dismissals Acts 1977-2015.

Further, Mr. Farrelly has instructed us to submit a complaint to the Workplace Relations Commission for Adjudication seeking compensation and we will be doing this in coming days.

Should you wish to discuss this matter please contact …” [The Complainant’s solicitor – mobile number provided]

A response to this letter was sent by Mr. Doyle to the Complainant’s then solicitors. The letter is undated, but it was accepted that it was received by the Complainant’s then solicitors on the 4th of April 2024. In this letter Mr. Doyle said as follows:

“I refer to your letter of March 11th concerning Colin Farrelly’s departure from [The Respondent] on January 12th 2024. I’m sorry to hear that Colin thinks he was dismissed. He informed me on January 9th that he didn’t respect or trust me, and that he wanted to leave.

I have no problem if Colin changed his mind about leaving and no hard feelings about his opinions of me. I didn’t dismiss him and, on condition that he repays the company the €7,799 which he accepted as a termination payment, he is welcome to come back to his job. I look forward to hearing from Colin before close of business on Tuesday, April 9th, to agree a date for his return.”

An issue arose as to another letter dated the 2nd of April 2024 which it was contended was sent by solicitors instructed by the Respondent. The Complainant’s solicitor said that this letter was not on his file, and he took the position that it had never been received. After some discussion the parties agreed that this letter would be excluded but it was accepted that the letter from Mr. Doyle quoted above was indeed received. As to that letter, the Complainant in his evidence said that when his solicitor read this letter to him on the telephone, his response was to ask how anyone could come back after so many months. He didn’t trust Mr. Doyle. Nothing which occurred between January and April 2024 changed his mind. In fact, he thought the atmosphere would have been more awkward.

In cross-examination it was put to the Complainant that he was operating a separate business prior to January 2024 and that this business was fully operational before that time. The Complainant said that he did a few small jobs through this business for family and friends but that there was no substantial trading being done until after he left the Respondent.

The Complainant denied that there were bad feelings between himself and Mr. Doyle prior to the meeting on the 12th of January 2024. He denied that he refused to sit down at that meeting. He denied that it was he who wanted to terminate his employment and he insisted that it was Mr. Doyle who wanted to go with this option. As regards working during his notice period the Complainant said that although Mr. Doyle did say that this was his preference, they “both agreed” that the Complainant would leave straight away.

It was put to the Complainant that when various draft agreements were sent to him, he never objected to the title “Termination Agreement” in that he did not insist on it being described as a redundancy. It was put to him that he asked for the payment to be described as redundancy, and he said that there was a possible “mix-up” in the use of the phrases; ‘termination’ and ‘redundancy’. The Complainant accepted that there were multiple interactions by email between himself and Mr. Keating, the Respondent’s accountant and that Mr. Keating was trying to “sort everything”. He didn’t sign the agreement because everything was wrong: the amount was not agreed; and the wording was not agreed and there was no point signing it if he and Mr. Doyle did not agree.

Regarding the offer to the Complainant to come back to work and to refund the monies paid out to him, it was put to the Complainant that he always knew between January and April 2024 that his job was still there for him and that he didn’t ask for it back because he had asked to be terminated. To this the Complainant said that he was not aware that his job was still available “because David let me go In January”. He was asked why when the Respondent wrote offering the job back in April 2024 he did not reply or reach out to Mr. Keating, and he said that “having spoken to my solicitor I felt that he [Mr. Doyle] did dismiss me.”

Regarding his losses the Complainant alleged that he sustained full losses for a period of six weeks totalling €5,376.90. He secured alternative employment from the 4th of March 2024 and resigned from that employment on the 11th of October 2024 and became self-employed thereafter. As of the initial hearing date he alleged a differential as between his weekly earnings with the Respondent and his subsequent employment of €311.53 per week for 32 weeks giving a differential loss of €9,968.96. He also contended for a future loss from his self-employment from November to the date of the resumed hearing on the 4th of February 2025. These figures were agreed by the parties subject to liability and subject to the Respondent’s right to allege failure to mitigate and failure to provide evidence of earnings and losses.

Evidence of the Respondent

David Doyle

Mr. David Doyle gave evidence on affirmation. He is the Managing Director of the Respondent. His relationship with the Complainant broke down in 2023. The Complainant was ignoring him and turning his back on him. When he asked the Complainant what could be done to resolve the situation the Complainant ignored him.

On the morning of Tuesday the 9th of January 2024 Mr. Doyle was in the office getting ready to do a call to a client. James Denham came up to the office because the Complainant would not interact with him. He and James Denham went downstairs to the Complainant’s workbench. A door had to be made, and Mr. Doyle asked the Complainant if he was going to make it. The Complainant said that he wanted a word with Mr. Doyle and Mr. Doyle said that he had to go to a meeting and James Denham, needed a door to be made. He asked the Complainant would Friday do for the meeting but the Complainant said he didn’t want to work late and he said that he wanted to have the meeting there and then. Mr. Doyle said that that it didn’t suit to have the meeting then but when the Complainant insisted, he said OK and asked the Complainant what he wanted to talk about. The Complainant said “I do not trust or respect you. I don’t want to work here anymore”. Mr. Doyle said, “OK do you want to leave and give your notice?” The Complainant replied, “No I won’t get the same pay as I make here in another job, so I need a payment to leave”. James Denham and Karl Kenny were present and heard this exchange but they both moved away at this stage. There were no raised voices. Mr. Doyle then asked the Complainant what they could do, could they “turn this around”. The Complainant said, “I don’t think so, it’s gone too far”. Mr. Doyle said “What options have we got going forward. 1 We try to work it out and you get more involved in the work or 2, If you want to leave, we would have to see what we could do.” Mr. Doyle said that he did not favour option number 2 as he would have difficulty replacing the Complainant. There was a mention of “a payment” but there was no mention of “redundancy”. They agreed to meet that Friday the 12th of January 2024.

Mr. Doyle and the Complainant met in the office at 4pm on Friday the 12th of January 2024. It was a one-to-one meeting. It was of very short duration, between 5 and 10 minutes. The Complainant was invited to sit but he said “I don’t want to sit down. This won’t take long”. Mr. Doyle asked the Complainant what his thoughts were after the meeting the previous Tuesday and the Complainant said “I want to leave. I’m not happy in this job”. When asked whether he had other jobs lined up the Complainant said no. Mr. Doyle told the Complainant that he was stuck for staff and he asked him if they could “turn this around” so he could stay. The Complainant said “No, I just want to go.”. Mr. Doyle asked, since the Complainant had nothing else lined up, could he stay the few weeks before he went and he could go for job interviews as needed, that he could just help out with the business. The Complainant replied, “No for my own head, I just want to go”.  Mr. Doyle said he was free to leave if he wanted and the Complainant said that he would need a payment. Mr. Doyle sad that he would discuss it with Seamus [Keating] and they (he and Mr. Keating) would work on it over the weekend for him. The Complainant agreed to that and asked how much he would get and how soon, to which Mr. Doyle replied that he would work on that over the weekend. Mr. Doyle again asked the Complainant to stay for two weeks and work out his notice and the Complainant again said that “for his own head” he had to go, and he asked whether he could go there and then, and Mr. Doyle agreed. As the Complainant was leaving, he said “sorry, this was not the way I wanted this to work out” and the Complainant replied “It is what it is” and left the meeting and left work. The Complainant was not dismissed. He wanted to leave, and the Respondent accommodated him.

When he received the letter from the Complainant dated the 29th of January 2024, Mr. Doyle tried to call the Complainant, but he didn’t pick up. He was calling the Complainant to discuss the letter. He did everything he could to resolve the situation. Regarding the reference to redundancy in the Complainant’s letter Mr. Doyle said that the Complainant hadn’t been replaced, that his job was still there. He was subsequently offered his job back, but he did not reply to the letter making this offer. The Complainant did not want to work his notice even though he was asked to do so. He wanted extra payments but eventually on the 27th of February 2024 a sum of €7,799.46 gross was paid to him of which he received €7,597.44 net of tax.

In cross-examination it was put to Mr. Doyle that paragraph 15 of the Respondent’s submission was incorrect and that the meeting in November 2023 related more to work being done to Mr. Doyle’s home by some of the workforce. He accepted that he did not ask the Complainant to do any of this work because the Complainant was not speaking to him at the time. Regarding the Christmas party, as the Complainant and Mr. Doyle were not speaking to each other, Mr. Doyle did not invite the Complainant to the party, but he was aware that Karl Kenny had told him about the arrangements. The Christmas bonuses took the form of gift cards. Mr. Doyle had bought a card for the Complainant and when he wasn’t at the party he planned to give it to him after Christmas. He did not give it to the Complainant before the 9th when the Complainant approached him about it because the Complainant was not talking to him. He denied that it was he who was not talking to the Complainant. As regards the conversation at the Complainant’s workbench on the 9th of January 2024, it was put to him that his evidence that the Complainant looked for a payment in this conversation was inconsistent with the submission. He insisted that his memory of the conversation as given in his evidence, was reliable. He did not accept that the conversation took place at a later time when the vans were being loaded. He denied that Karl Kenny had ear protection and that he was operating a saw and could not have overheard the conversation. As regards the poor atmosphere, Mr. Doyle insisted that it was the Complainant who first mentioned this issue. He did accept that the atmosphere existed from previous events. He denied that he made no attempt to fix the problem. He made multiple attempts to fix the problem by asking the Complainant how it had gotten to this point, but he accepted that there were no records of these attempts or of any of the conversations. As to whether the source of the ill-will was the Complainant’s failure to work on Mr. Doyle’s house, Mr. Doyle said that he never asked the Complainant to do this.

As regards the meeting on the 12th of January 2024 Mr. Doyle said that there was no discussion by either of them of redundancy. He denied that another named individual “GD” de facto replaced the Complainant. He said that this individual was and remains an independent contractor and he did not replace the Complainant.

As to the procedure followed in relation to the payment to the Complainant, Mr. Doyle said that he did get advice from a solicitor, and he also briefed his accountant Mr. Keating, but he accepted that Mr. Keating was paid by him and was not independent. He said that he also told the Complainant that he should get his own advice and he did go to the Citizen’s Advice Bureau. As regards the Complainant’s letter to him of the 29th of January 2024 Mr. Doyle did not accept that this was a rejection of his offer because the letter only stated that the Complainant was not in agreement with the information contained in the agreement. Also, although he was not sure if Mr. Keating was aware of the letter, he was aware that the negotiations with Mr. Keating continued after the letter was received. He reiterated that the letter only said that the information in the agreement was wrong. It was not a rejection; they were still in negotiations.

Mr. Doyle did not offer the job back until the 4th of April 2024 because the parties were still in negotiations over the amount of money to be paid to the Complainant. He never thought that the matter would end up at the WRC. As to why there was a delay between the Complainant’s solicitors’ letter of the 11th of March 2024 and the “job-back” offer on the 4th of April 2024, Mr. Doyle said that the Company was busy, and he was under a lot of stress. He totally disagreed that the letter was sent purely to mitigate his position in relation to the case presently being made by the Complainant and he insisted that the offer was genuine, and the role was available. 

It was put to Mr. Doyle that in July of 2024, he had failed to provide a reference for the Complainant when asked to do so by a hospital who wanted to hire the Complainant which resulted in the job offer being withdrawn. An email from the hospital to the Complainant’s solicitors dated the 15th of July 2024 was put to Mr. Doyle. Mr. Doyle said that he did not fail to respond to telephone calls from the Hospital. He had two telephone calls. A woman called him in relation to providing a reference and he said that he wanted to speak to someone. A man called him after this, and he said to this man that he was not is a position to give a reference but that he could confirm that the Complainant had worked for the Respondent. He did not give a negative reference, and he was never asked to give a written reference. As to why he did not say on the telephone that the Complainant had been a good employee or make positive statement about him, Mr. Doyle said that he was not obliged to do so. As regards the Complainant’s pay with the Respondent, the Hospital never asked about this.

It was put to Mr. Doyle that on the from the 9th to the 12th of January 2024, he presented the Complainant with a fait accompli in that the only solution to the dilemma was for the Complainant to leave. Mr. Doyle stated that it was the Complainant who asked to leave. 

James Denham

Mr. James Denham gave evidence on affirmation. He is a fitter employed by the Respondent. Prior to January 2024 relations as between himself and the Complainant had been strained after the Complainant had threatened to hit him. The Complainant stopped talking to other workers and there was tension. It was tough being there knowing that the Complainant would not talk to him. The situation was awkward.  On the morning of the 9th of January 2024, a door needed to be made by the Complainant, and it had yet to be done. Mr. Denham was reluctant to approach the Complainant, so he went up to the office and asked Mr. Doyle to come down to talk to him. The two of them went to the Complainant’s work area and Mr. Doyle asked the Complainant to make the door. Karl Kenny was present at his workstation beside the saw. The Complainant was annoyed and asked for a meeting with Mr. Doyle who said that he couldn’t meet then but that he could meet the Complainant on Friday. The Complainant insisted that he wanted the meeting then. He recalled the Complainant saying to Mr. Doyle “I don’t respect you. I don’t trust you. I want to discuss a mutual agreement on me leaving”.

In cross-examination it was put to him that his evidence was exactly the same as Mr. Doyle’s and he said that was because that is what happened. As regards the issue between himself and the Complainant he agreed that it was nine months prior to January 2024. Mr. Doyle’s letter to Mr. Denham dated the 25th of May 2023 was put to the witness (being Mr. Doyle’s response to his complainant against the Complainant). He agreed that the letter was very detailed even though it said that his own complaint had only been read on the same day it was issued. Mr. Denham said that Mr. Doyle was already aware of what had happened the previous day. The witness agreed that the way in which the issue between himself and the Complainant was handled was not the normal way of dealing with problems which would normally have been discussed and thrashed out. He did not know why this was not done in that instance.

Kieron McDonnell

Mr. Kieron McDonnell gave evidence on affirmation. He is a wardrobe fitter employed by the Respondent. He was not a witness to the conversation which occurred between the Complainant and Mr. Doyle on the 9th of January 2024.

He was on friendly terms with the Complainant. A text exchange between himself and the Complainant was referred to. He thought it took place on the 13th of January 2024. He was asked to explain what he meant when he sent the message: “No I was chatting to Dave earlier. No notice or anything? Fair play to you…”. He said that Mr. Doyle had informed him that the Complainant had walked out. On other occasions before then, in conversation with the Complainant, the witness said that the Complainant told him a few times that he wanted out of the Company. He was planning to leave for a while before January 2024. When he texted “Fair play to you” to the Complainant, he explained that he was a bit shocked that he had not given any notice. I was not really meant as a compliment.

The Complainant didn’t mention that he was going on holiday. He was aware that the Complainant was planning to take over or had already taken over his father’s business making frames and that he had bought a van. Although he could not be precise as to when he learned this, he thought it must have been before the Complainant left, perhaps a week beforehand as they were not in touch after the Complainant left.

In cross-examination he did not agree that his text was meant as congratulations. He said he would not have done what the Complainant did and that was the way he meant the message to be understood. The Complainant had told him a few times that he “didn’t want to be there” and the witness thought that his leaving the Respondent’s employment was a weight off his shoulders.

The witness has worked for the Respondent since August 2021 or thereabouts. He agreed that he himself has encountered ordinary stress in the workplace, but he did not agree that the Complainant was just expressing ordinary stress when talking about leaving. He did not tell the Complainant that he himself was leaving but he did say that if he did leave, he would leave the trade altogether. He agreed that he could not remember when the Complainant said that he had bought the van.

In relation to an individual GD, he said that he has done some work for the Respondent on about three occasions in the last year and a half and these hours have not increased.

Karl Kenny

Mr Karl Kenny gave evidence on affirmation. He is employed by the Respondent as a machinist. He works on the factory floor “downstairs”. He and the Complainant were colleagues, and they talked to each other from time to time. He recalled the 9th of January 2024. He was at work at around 9 -9:30 am. He was in the workshop at his workbench beside the circular saw. The Complainant, Mr. Denham and Mr. Doyle were all present. Mr. Doyle and Mr. Denham had come down from upstairs. Mr. Doyle was about to go out to visit a client. The witness said that he heard some words being exchanged between the Complainant and Mr, Doyle. He was trying not to listen, but he did hear the Complainant say to Mr. Doyle “I don’t trust you”.  He recalled Mr. Doyle saying that he was going to a meeting and then putting down his bag/briefcase. He “zoned out” after that and heard “very little” of what was said.

He was aware that the Complainant had another business, but he did not recall the Complainant telling him how it was going nor was he aware of the Complainant obtaining anything for his other business.

As for the Christmas party, the witness said that it was he who had organised it and the Complainant was aware of the party. 

It was put to him in cross-examination that he did not organise the Christmas party and that he did not invite the Complainant. He did not recall the Complainant raising the issue of the Christmas Bonus with Mr. Doyle at the start of the conversation. It was put to him that this was not a serious incident such that he would remember it, but the witness said that he did remember it. The only words which he heard were “I don’t trust you and I don’t respect you” from the Complainant and he also recalled Mr. Doyle saying that he was going out to a meeting and that the door had to be done. It was put to him that the only words he remembered were the same ones that his colleagues also remembered.

Seamus Keating

Mr. Seamus Keating gave evidence on affirmation.  He has been the Respondent’s accountant since 2020. He handles taxation, accounting, payroll and business administration for the Respondent.

On Friday afternoon the 12th of January 2024, Mr. Doyle was in shock. He told Mr. Keating that the Complainant was leaving that day without notice but that no resignation letter or written notice had been given. Mr. Doyle told him that the Complainant had said that “his head wasn’t in it” and that he wanted to leave that day. Mr. Doyle asked him to “do up the numbers” for the Complainant to leave on amicable terms. As the business was under pressure without the Complainant and given the frayed relationship between the Complainant and Mr. Doyle, Mr. Keating agreed to assist negotiating or mediating with the Complainant while he ran the business, which was significantly impacted by the Complainant’s departure, especially without working his notice period.

From the 16th of January to early February 2024 Mr. Keating had seven telephone calls with the Complainant totalling three and a half hours in time together with fifteen emails - eleven out and four back. The rapport was good up to the end of January 2024 and a lot of progress was made in that time.  He remembered asking the Complainant to return to the business or if not, then to stay on until he found something else, but this didn’t happen. The Complainant thanked him for the role he played. The Complainant suggested a total of five changes to the agreement and by the 17th of January 2024, Mr. Keating understood that a verbal agreement had been reached, and he hoped that the Complainant would sign a written agreement which he had drafted. Mr. Keating told the Complainant that the agreement was a “Termination Agreement”. He understood that the Complainant had received advice after that time because he said that he was not happy with the word “Termination” which he wanted changed to the word “Redundancy”. Mr. Keating said that he was not at that time aware that the Complainant had written to Mr. Doyle on the 31st of January 2024. Mr. Keating understood that the Complainant wanted the word “redundancy” used for social welfare purposes but he himself was uncomfortable using that word as the Complainant’s role still existed.  However, he got some advice from an employment lawyer who advised that the situation could be described as a redundancy, and he made that change and sent a sixth draft agreement to the Complainant on the 10th of February 2024. As the Complainant had not reverted with the payroll cut-off date on the 22nd of February 2024 approaching, Mr. Keating emailed the Complainant asking him to sign the agreement. It was around this time that Mr. Keating became aware of the letter which the Complainant had sent to Mr. Doyle on the 29th of January 2024, and he was disappointed to see that it now appeared that the Complainant was going down the grievance route. He did not press the issue any further with the Complainant. The payment to the Complainant was put through on the 27th of February 2024 and a payslip was sent to him on the 5th of March 2024. Mr. Keating expressed the opinion that the payment was generous, and that the Respondent didn’t have to make it. He expressed regret that the payment did not resolve the issue. Mr. Keating said that in his view the Complainant made a decision to leave his employment, but he didn’t want to proceed without a payment. He was asked to stay until he found other work or at least to work his notice but he refused to do this, and the Respondent relented and agreed to pay the Complainant in lieu of notice and allowed him to leave on the 12th of January 2024.

In cross-examination, Mr. Keating accepted that he was not present at the meeting between Mr. Doyle and the Complainant on the 12th of January 2024, but he said that Mr. Doyle did speak to him within half an hour of its conclusion and gave him what he thought to have been an accurate account of the meeting. 

Mr. Keating accepted that he was retained and paid by the Respondent and that he was not a mediator, but he said that he tried to act as impartially as he could. Out of fear for not being impartial he did advise the Complainant to get advice, and he understood that that is what the Complainant was doing some time around the 16th of January 2024. He recalled the Complainant saying that he was going to Citizen’s Advice.  The payroll date for January 2024 passed and things went quiet. The Complainant’s solicitor’s letter of the 12th of March 2024 was put to the witness. He said that when he saw the letter from the Complainant to Mr. Doyle of the 31st of January 2024 he thought/presumed that he had received legal advice around that time but then the Complainant reverted and looked for the insertion into the agreement of the word “redundancy”.

Mr. Keating denied absolutely that he ever gave the Complainant advice. He could not do so due to a conflict of interest. He was proposing an agreement on behalf of Mr. Doyle while attempting to mediate as well. He used his best endeavours to find a mutually agreeable solution. As to his role, he said that the Company had no HR department, and the Company needed the issue dealt with. He was trying to do his best for an employee who was leaving after long service. He said that maybe he should have left the Complainant go empty-handed. As it happened the Company gave him a tax-free lump sum.

It was put to Mr. Keating that he could have been perceived to have unduly influenced the Complainant in relation to the contract. [It was specifically clarified that Mr. Keating was not being accused of having actually exerted undue influence or having behaved unprofessionally]. Mr. Keating said that a “legal advice clause” was contained in every single version of the agreement sent to the Complainant. [This was accepted on behalf of the Complainant]. It was put to Mr. Keating that the first version was a Redundancy Agreement, and it was later changed but Mr. Keating said that the first draft was simply headed “Agreement”     

When asked why the Complainant did not sign the last version of the agreement Mr. Keating said that he was at a loss and dumbfounded until he saw the letter from the Complainant to Mr. Doyle of the 31st of January 2024. He said that “it looked like reverse engineering” where the situation “was now portrayed as a dismissal” and that the matter was going down a litigious route.

It was put to Mr. Keating that his evidence did not match the timeline of the events. Mr. Keating accepted that he was not sure as to exactly when he became aware of the Complainant’s letter to Mr. Doyle of the 31st of January 2024 or when he got legal advice.  

An email exchange between himself and the Complainant which occurred on the 18th and 19th of January 2024 was opened. 

In this email exchange, on the 18th of January 2024, the Complainant wrote:

“Look I want this sorted as soon as possible as well, but I’m not going to sign anything until I fully know what your[’e] asking me to sign.

I could not give you an answer on the phone as I am waiting for someone in citizens advice to get back to me.

I just want to make sure I understand what you said on the phone. I can either [accept] the €8,000 net pay by the end of this week or go back and work my 2 weeks notice in [the Respondent]?”

Mr. Keating’s reply the next day stated:

“You already have a copy of the Termination Agreement – the only modification required will be to increase the ex-gratia payment by 760 since the Company has agreed to bring the net payment to you up to €8,000 from the 7,240 in the interests of bringing all matters to a conclusion.

I understand that you are taking advice on the matter so you might confirm when you are happy to sign so that I can make the modification above and send final agreement to you for signing”

Mr. Keating said that he delivered everything that the Complainant asked for by the final version of the agreement and that the Complainant refused to sign it on a point of principle.     

The Onus of Proof

Section (6) subsection (1) of the Unfair Dismissals Acts 1977-2015 provides as follows:

“Subject to the provisions of this section, the dismissal of an employee shallbe deemed, for the purposes of this Act, to be an unfair dismissal unless, havingregard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section (6) Subsection (6) places the onus on the employer to establish that the dismissal was fair (the so-called reversed onus of proof) as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

In the present case dismissal was a factual issue which was disputed. In such circumstances, the onus of proof rests on the Complainant to establish as a matter of fact that he was dismissed. Only when dismissal as a fact is established does the onus of proof shift to the Respondent pursuant to Section 6 subsections (1) and (6). In this regard, insofar as the Complainant contended in his submission that, “this is not a constructive dismissal complaint and the burden is on the employer” that is incorrect. 

“Dismissal”

Section 1 of the Unfair Dismissals Act 1977 (as amended) defines dismissal (where relevant to the present case) as follows:

“dismissal”, in relation to an employee, means—

(a)    the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)    the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer…”

In Devaney v DNT Distribution Company Ltd  UD 412/1993, the Employment Appeals Tribunal held that,

“... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

In “Redmond on Dismissal Law,” by Desmond Ryan, (3rd edition, Bloomsbury 2017), the general understanding of “dismissal” is described at paragraph 22.13 as follows:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or it may be reasonably be inferred as having been intended.”

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v. Joseph McManus  UDD1753,  decided in 2017, the Labour Court held as follows,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined.”

The Complainant contended that he was dismissed on the 12th of July 2024 in that he alleged that he left that meeting with the reasonable understanding that his employment had ended. This was flatly contradicted by Mr. Doyle the only other party to that meeting. He contended that it was the Complainant who proposed that he would leave his employment and that he would need a payment for this to come about. He said that he reluctantly agreed to this proposal and, also reluctantly, to the Complainant finishing work that day. The payment was to be finalised by his accountant and agreed between them.

Although the Complainant has specifically alleged that he understood after the meeting on the 12th of July 2024 that his employment had ended, in the absence of a letter of dismissal or a letter of resignation, I will also consider the wider question as to whether in all of the circumstances it was reasonable for the Complainant to understand that it was the Respondent’s intention to dismiss him.

The Complainant’s case was very specific. His entire case was built upon a single issue, that on the 12th of January 2024 he was dismissed by the Respondent.  When the present proceedings were initiated by way of WRC Complainant form (received on the 28th of March of 2024) the alleged date of dismissal was identified as the 12th of January 2024. This was also repeated in submissions and in his evidence

In his evidence on affirmation the Complainant repeatedly asserted that he had been dismissed by Mr. Doyle at the meeting on the 12th of July 2024 and on that date alone. He did not allege unreasonable behaviour or breach of contract such as left him with no choice but to resign; rather he alleged that he was actually dismissed by the Respondent and on that date. He did not make an argument in the alternative, that if he did resign on the 12th of July 2024 or on any other date, that such a resignation constituted a constructive dismissal, nor did he allege that his actual dismissal occurred on any date subsequent to the 12th of July 2024. For this reason, I must assess the available evidence to determine the central question which is whether on the 12th of July 2024 an actual dismissal occurred. 

Having heard detailed and comprehensive evidence from the Complainant and Mr. Doyle and from the two other employees who were present on the 9th of January 2024 (but not on the 12th), I am driven to the conclusion that none of them has a reliable recollection of exactly what was said on the 9th of January 2024 and that the evidence of the Complainant and of Mr. Doyle  (and only they were present) as to what was said on the 12th of January 2024 is also unreliable.

There is no doubt that both the Complainant and the Respondent were unhappy with the tension that existed between them.  Whilst it was not the case that the Complainant was refusing to talk to anyone as he appears to have had conversations with Mr. McDonnell and Mr. Kenny, there were tensions between himself and Mr. Doyle and also between himself and Mr. Denham.  No finding is required as to who was to blame for these tensions or how they arose and for the purposes of this decision I merely find as a fact that there were tensions and in particular there was tension between Mr. Doyle and the Complainant. Following from this finding and based on Mr. Kenny’s evidence, I am satisfied that the Complainant was not excluded from the Christmas party but rather absented himself and the likely cause of this was the tension between the Complainant and Mr. Doyle and probably also Mr. Denham. It is likely that the Complainant was unhappy about not receiving his Christmas bonus, but I accept Mr. Doyle’s evidence that he would have given it to the Complainant as he did to everyone else had the Complainant attended the party. As to the alleged delay between Christmas and the 9th of January 2024 when the issue was raised by the Complainant, I do not think that this delay was unreasonable, particularly as Mr. Doyle would have been apprehensive approaching the Complainant at all given the tension between them. I am also satisfied that the Complainant was unhappy in his work with the Respondent and that he did say to Mr. McDonnell that he had another business and was planning on leaving. These findings all tend to point towards a scenario where the Complainant was the one who first suggested that he would leave the Respondent’s employment but they do not conclusively do so and most importantly they do not prove what was actually said in the ten-minute meeting that took place on the 12th of January 2024.

Regardless of who initiated the process and who alleged a lack of trust and respect it is clear that there was a lack of trust and respect between the Complainant and Mr. Doyle, which was mutual. This being so, I find that it is probable that both parties were in an agitated state when the meeting took place. To make the situation even worse, no other party was present at this meeting to take a note, and no written communications were undertaken immediately after the meeting to clarify what had been said, and what (if anything) had been agreed. If even the bare minimum precaution had been taken by the Respondent of issuing an email immediately after the meeting, recording its content and outcome, it is very likely that the present case would not have gone to law as it did or possibly at all.

For this reason and because the situation was legally complex, both parties would have benefited greatly from independent professional advice prior to the meeting, and I would go further and suggest that the entire process that was being attempted should have been handled by independent agents on each side and/or by a single independent facilitator such as a mediator. In fairness to Mr. Dolye, he did brief Mr. Keating, a qualified accountant if not before but immediately following the meeting.  In fairness to Mr. Keating, he did his best to undertake negotiations with the Complainant as soon as he was briefed and the Complainant very fairly clarified that he was not suggesting that Mr. Keating behaved in any way other than in good faith. The only criticism that the Complainant made of Mr. Keating was that he put the Complainant under pressure to sign the agreement in February 2024. Having considered Mr Keating’s evidence I accept that he did so to get the Complainant’s severance package through the payroll before the shut off time in February 2024. In such circumstances this does not constitute unfair coercion or undue pressure. In any event even if the Complainant was put under unfair pressure, he never signed any agreement and thus he did not suffer any prejudice.

Having decided to exclude any evidence as to what was said leading up to the meeting on the 12th of January 2024 and in the light of my concern as to the reliability of the recollection of either party at the meeting, I will proceed to assess what emerged from the meeting as a possible indicator as to what occurred at the meeting.

After the meeting, the Complainant did not immediately protest his alleged dismissal in writing or at all. He left work on the 12th of July 2024 and never returned. He then engaged with Mr. Keating throughout the remainder of the month of January and well into February 2024 and I find as a fact that at no stage did he ever indicate to Mr. Keating that it was his understanding that he had been dismissed and it is also the case they did not discuss the letter which the Complainant wrote to Mr Doyle on the 29th of January 2024. As regards that letter itself, there was no mention in its text of the Complainant’s understanding that he had been dismissed on the 12th of January 2024. Moreover, despite the clear invitation at the end of that letter “I would like the opportunity to discuss what was previously agreed. I look forward to hearing from you.” and the fact that Mr. Doyle called the Complainant immediately on receiving it, the Complainant, as he said in his evidence at the hearing, “deliberately avoided taking the calls”. He explained this position on the basis that he wanted Mr. Doyle to communicate in writing but a plain reading of the text of the letter reveals that the Complainant wished to “discuss” the situation. 

I have already dealt with the run up to the making of the payment to the Complainant in the context of what Mr. Keating was attempting to do. As to the making of the payment itself, it was not asserted by the Complainant that the making of what in effect was a unilateral payment in the absence of a written agreement, was an act of dismissal. Although the letter from the Complainant’s solicitor of the 11th of March 2024 referred to the payment and alleged (for the first time) unfair dismissal, it was not alleged in that letter or at the hearing, in submissions or evidence that the dismissal had been brought about by that payment. Instead, the contention was clearly and repeatedly made at the adjudication hearing, that the date of the alleged dismissal was the 12th of July 2024, i.e. that it had, on the Complainant’s case, already occurred.

As to the retention of the monies by the Complainant, the Respondent for its part did not go as far as to assert that the retention of the monies by the Complainant by itself estopped him (i.e. prevented him by reason of his own conduct) from maintaining his claim altogether. Rather the Respondent pointed to the fact that the Complainant was invited to return the monies if he wished to return to his duties and having failed to avail of this facility, he could not reasonably maintain his claim.

I have considered the issue of the unilateral payment and its retention, and my conclusion is that when applied to the circumstances of this case, where the dismissal was alleged to have already taken place before the monies were paid out and retained, the issue of the payment itself does not assist in the determination of the question of whether a dismissal was effected, as alleged at the meeting on the 12th of January 2024. The Complainant’s solicitors’ letter of the 11th of March 2024 does not cite the making of the payment as being an act of dismissal nor does it cite the date of the payment as being the date of dismissal. That date, as already discussed, was clearly cited as the 12th of January 2024. I also note that when dismissal was alleged, it was denied in writing by the Respondent. 

The final issue of possible relevance is why the Complainant did not return to work or indicate an intention to return to work. The Respondent argued that the Complainant could have returned to work on foot of the offer made in the letter of the 4th of April 2024. The Complainant’s reasons for not doing as given in direct examination were: that he questioned how anyone could come back after so many months; that he didn’t trust Mr. Doyle and that nothing which occurred between January and April 2024 changed his mind. In fact, he thought the atmosphere would have been more awkward. He said that he had lost trust in the Respondent. Later, under cross-examination he did not accept that he was aware that his job was still available, “because David let me go In January”. He was asked why, when the Respondent wrote offering the job back in April 2024, he did not reply or reach out to Mr. Keating, and he said that “having spoken to my solicitor I felt that he [Mr. Doyle] did dismiss me.” I have considered whether the issue of the offer of returning to his job as made to the Complainant sheds any light on the central issue as to whether the Complainant was dismissed on the 12th of July 2024. I conclude that it does not assist in that assessment because on the Complainant’s case he was actually – not constructively - dismissed on the 12th of January. If he was actually dismissed on that date, then he was entitled to accept that situation (even belatedly) and to refuse to return to work and thus the issue of unreasonable refusal of the offer does not arise. If on the other hand he was not actually dismissed on the 12th of January 2024 then the only other argument that could be relevant to dismissal is whether he was constructively dismissed on that date or subsequently, which is a case which the Complainant did not make. For this reason, the entire issue and how it was handled by the parties sheds no light on whether the Complainant was dismissed as alleged, some three months previously.

My overall analysis of and my finding in relation to what occurred is that on the 9th and 12th of January 2024, the parties came to a conditional verbal agreement that the Complainant’s employment had ended or would end my mutual agreement and that he would receive a severance package, the details of which were at that stage yet to be agreed. The verbal agreement led to the immediate and agreed cessation of the Complainant’s work but instead of immediately protesting what he later alleged was his dismissal, the Complainant then engaged with the Respondent’s accountant over a period of three weeks or so to finalise the details of his departure from the Respondent’s employment. He was never informed at any stage by the Respondent (including Mr. Keating with whom he was negotiating) that he had been or was going to be dismissed, nor did he himself make that case in his letter to Mr. Doyle of the 29th of January 2024. Despite inviting Mr. Doyle to discuss the issues canvassed in that letter, the Complainant deliberately did not take his calls. Moreover, he continued to engage with Mr. Keating and the letter was not discussed. The first indication that the Complainant was contending that he had been dismissed was when he instructed his solicitor to write to the Respondent on the 11th of March 2024 but even then, the date of the alleged dismissal was not set out clearly. However, when the present proceedings were instituted on the 28th of March 2024 by way of WRC Complaint Form, in submissions and in evidence, the date of dismissal alleged was the 12th of March 2024. On the 4th of April 2024 when the Respondent wrote to the Complainant’s solicitor, dismissal was denied.

In all of the circumstances, although it is difficult to establish what exactly happened, I find on the balance of probability that the Complainant left the meeting on the 12th of January 2024 on the understanding that his employment had already or would terminate by mutual agreement rather than by dismissal. I am satisfied on the balance of probability that there is insufficient reliable and credible evidence to support the Complainant’s contention either that he was advised unequivocally that his employment had been terminated, or that he did leave or could have left the meeting with a reasonable belief that his employer had dismissed or intended to dismiss him.  The Complainant has thus failed to establish that he was dismissed.  Accordingly, there was no dismissal and thus the claim for unfair dismissal cannot succeed.

I conclude that the Complainant was not unfairly dismissed. 

CA-00062494-001 - The Complainant was not unfairly dismissed

Unfair Dismissals Acts 1977-2015 – Section 6 (1) and 6 (6) – Section 1 – Definition of Dismissal – Dismissal in dispute – Onus of Proof - Redmond on Dismissal Law 3rd Ed. -  Devaney v DNT Distribution Company Ltd  UD 412/1993 - Longford County Council v. Joseph McManus  UDD1753 – Fact of dismissal