Complainant

Respondent

Parties

Nathan Fahy Kelly

Ez Living Furniture

Representatives

Mr. Maurice Osbourne BL, instructed by Mellotte O'Carroll Solicitors LLP

Self-Represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00070201-001

18/03/2025

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

CA-00070201-002

18/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00070201-003

18/03/2025

The Complainant commenced employment on 27th December 2023. At all relevant times the Complainant’s role was described as that of “Sales Advisor”. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly payment of €546.  The Complainant’s employment terminated on 5th February 2025, with the nature of the termination forming the subject matter of the dispute between the parties.

On 18th March 2025, the Complainant referred the present complaints to the Commission. Herein, he alleged that the unfairly dismissed him without recourse to any form of procedure.  By response, the Respondent submitted that the Complainant resigned his employment and denied that he had been dismissed as alleged.

A hearing in relation to this matter was convened for, and finalised on, 16th September 2025. The hearing was held in person, in Mullingar Courthouse, Co Westmeath.

Both parties issued extensive submissions in advance of the hearing. In an effort to finalise the hearing within the session, the parties agreed that the submission would be taken as read, with the time allotted to the hearing being assigned to hearing the relevant evidence. The Complainant gave evidence in support of his complaint, while a store manager for the Respondent gave evidence in defence. All evidence was given under oath or examination and was opened to cross examination by the opposing side.

At the outset of the hearing, the Complainant’s representative stated that the complaint under the Payment of Wages Act had been withdrawn. No issues as to my jurisdiction to hear the remaining complaints were raised at any stage of the proceedings. In circumstances whereby a dispute arises as to the fact of dismissal, the Complainant gave his evidence first.

In evidence, the Complainant stated that his employment began in December 2023. At all material times, the Complainant was employed in the role of Sales Advisor. The Complainant maintained that he performed his duties effectively throughout his tenure and noted that he received a salary increase on 24th October 2024. The Complainant asserted that he was a committed staff member who frequently attended the workplace on scheduled days off to support his peers and worked beyond his contracted hours.

Notwithstanding the foregoing, the Complainant acknowledged that in January 2025 he received a verbal warning from the Respondent concerning specific instances of lateness. Nonetheless, the Complainant contended that these matters were of a minor nature and did not reflect his overall professional conduct. Thereafter, on 5th February 2025, the Complainant was involved in a disagreement with his manager after requesting her assistance with wrapping furniture. The manager took umbrage at this request and instructed the Complainant to leave the premises. Following these instructions, the Complainant departed and returned home. In his evidence, the Complainant stated that he did not offer his resignation at any point during this interaction. The Complainant further denied the allegations made by the Respondent that he was loud, acted aggressively, or slammed the door upon his exit.

Later that day, the Respondent’s HR Manager emailed the Complainant to allege that he had resigned and to confirm that the purported resignation had been accepted. Within this correspondence, the HR Manager expressed disappointment regarding alleged misconduct. The Complainant argued that it was unclear why such allegations were raised if the Respondent believed the employment relationship had already concluded via resignation. Later that same day, the Complainant replied to state that he wished to speak with the HR Manager to explain his perspective and to express his belief that he had been treated unfairly. The Respondent replied on the same date, asserting that the Complainant had resigned verbally to his manager and that this had been accepted. The Complainant was thanked for his service and instructed to return his store keys immediately.

Two days later, on 7th February 2025, the Complainant emailed the Respondent again to deny that he had tendered his resignation. He stated that the Respondent’s account was an inaccurate representation of the events. The Complainant reiterated his request for a telephone call and stated clearly and unambiguously that he had not resigned either verbally or in writing. The Complainant maintained that he remained an employee and was due to work the following day. On that date, the Respondent replied to confirm that the Complainant would not be permitted to return to work as his resignation had been accepted. In this correspondence, the HR Manager denied that the Complainant had been treated unfairly and suggested that he had received preferential treatment under the circumstances.

By submission, it was argued that the Complainant did not resign and was instead dismissed by the Respondent without recourse to any formal due process or fair procedure. It was acknowledged that a conflict of evidence existed between the accounts of the store manager and the Complainant regarding the nature of the termination of employment. In this regard, it was submitted that the Respondent should have conducted an investigation into the facts surrounding the end of the Complainant’s tenure. The Complainant contended that the Respondent simply accepted the store manager’s version of events without any independent inquiry into the nature of the termination being undertaken.

As a consequence of the accumulation of the foregoing points, it was submitted that the Complainant had been unfairly dismissed and, consequently, that the complaint should be deemed to be well founded.

From the outset, the Respondent denied that the Complainant had been dismissed and submitted that he resigned his employment in the course of his duties and without notice.

In evidence, the store manager for the Respondent stated that the Complainant experienced ongoing issues regarding lateness for work. In this regard, she submitted that these matters of lateness had been discussed with the Complainant on several occasions. Following a number of such discussions, the Complainant received a verbal warning for lateness in January 2025. Thereafter, on 21st January 2025, the Complainant was again issued with correspondence regarding his lateness and consequent poor performance in his role. The witness stated that it was disappointing that the Complainant's lateness had not improved, and that these issues caused knock-on effects for the rest of the employees on the team.

On the morning of 5thFebruary 2025, the Complainant was again late for work, causing further issues for the Respondent's operations. Later that day, the manager stated that she could not locate the Complainant on the ground floor of the premises. The store manager stated that she went to the first floor to look for him and found him sitting at a desk. She stated that she asked him what he was doing, at which point the Complainant stated that he had a pain in his foot and he was resting. The store manager asked the Complainant to come downstairs and help with certain tasks. About five minutes later, the Complainant came down to the manager and another member of staff. At this point, the manager asked the Complainant to wrap up some furniture, to which he loudly and angrily challenged the manager, asking what she herself had been doing all day. The manager in question stated that she was engaged in a stock take that needed to be completed that day. Following this interaction, the Complainant then went to another part of the premises, stating that he was “sick of it all” and retrieved his belongings. At this point, the Complainant expressly stated that he wished to terminate his employment and asked the manager to inform the Respondent's HR department. The manager stated that she was surprised by this abrupt discussion, and that she twice asked him to reconsider and advised him not to make any rash decisions. The Complainant ignored the manager and left the store, slamming the door as he went. The manager stated that she was very clear that at no stage was the Complainant asked to leave, threatened with dismissal or told to end his employment. She stated that he resigned verbally and entirely of his own accord.

By submission, the HR manager stated that the respondent routinely receives verbal resignations, and these are processed in line with the affected employee's wishes. In this regard, given that the complainant had expressly and unambiguously resigned his employment, his resignation was then processed in this fashion. The Respondent submitted that the Complainant’s behaviour on the day in question had been appalling, and that he had demonstrated disrespect for his manager and for the Respondent organisation as a whole. The Respondent submitted that an investigation had been undertaken in relation to the circumstances surrounding the Complainant’s resignation, in that all present members of staff had been spoken to. Finally, the Respondent submitted that the Complainant’s past conduct demonstrated poor character and general unreliability.

Regarding the present case, the Complainant has alleged that he was dismissed by the Respondent in the course of his duties. He submitted that as this dismissal occurred without recourse to any form of procedure, the same is unfair for the purposes of the impleaded Act. By response, the Respondent submitted that the Complainant verbally resigned his employment in the course of his duties without notice to the Respondent. In these circumstances, it is clear that the parties are at odds regarding the fact of dismissal and the nature of the termination of employment.

In the matter of 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.”

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v. Joseph McManus UDD 1753, 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.”

In the matter of Parkboro Developments Ltd T/a Park Engineering v Mariusz Witkowski, UDD2338, the Labour Court held that,

“There can be no absolute rules about what is, or is not, a dismissal and to a very large extent each case in which this point is argued requires to be determined on its own facts.”

Regarding the present case, both the Store Manager and the Complainant provided differing accounts of their interaction of 5th February 2025. Notwithstanding the same, it is common case that on the afternoon in question a dispute arose between the parties regarding the distribution of tasks between the workforce. Thereafter, the evidence of the Complainant was that he was told to leave the premises following the dispute, words he submitted gave effect to his dismissal. The evidence of the witness for the Respondent was that the Complainant informed her, expressly and on two separate occasions, that he wished to resign his employment, which was duly processed in line with his instructions.

Later that day, the Respondent’s HR manager emailed the Complainant stating that the Complainant’s resignation is to be effective from that date. This correspondence further states that the HR Manager was “really disappointed” by the purported disrespect demonstrated towards his manager and the poor impression he left on a new staff member. Thereafter, the Complainant wrote back that afternoon stating that the foregoing was not a correct summary of events and requested a call to discuss the matter. By response, the HR Manager stated that in circumstances whereby the Complainant had resigned his employment, there was no purpose to such a conversation, and his resignation was deemed to have stood. The Complainant again responded expressly stating that he had not resigned his employment.

A number of points arise in relation to the foregoing sequence of events. Firstly, it is apparent that following the report from the store manager, the HR Manager formed the view that not only did the Complainant resign his employment, but also that he acted in manner deemed disappointing to the Respondent. When the Complainant sought to dispute this version of events, he was denied any ability to advocate on his own behalf or to present his account of matters. While the HR Manager submitted that he conducted a fulsome investigation into the event leading up to the purported resignation, in that he spoke with manager and another member of staff present at the time, it is clearly the case that no such investigation is complete without speaking to the employee involved and considering their version of events. As matter stood, the factual dispute regarding the purported resignation was effectively ignored by the Respondent and a contested verbal resignation, that was not confirmed in writing, was simply accepted as fact.

Even if the foregoing was not the case, and the Respondent properly established that the Complainant resigned his employment, it is also the case that such resignations can be withdrawn in certain circumstances. In Dismissal Law in Ireland, at paragraph 21.24, Dr. Mary Redmond observes that,

“When unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude that the employee has resigned. However, context is everything. A resignation should not be taken at face value where in the circumstances, there were heated exchanges or where the employee was unwell at the time.”

In the matter ofKwik-Fit (GB) Limited v Linehan [1992] IRLR 156, the UK High Court held as follows,

“…If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (being jostled into a decision) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] IRLR 313). These we refer to as “special circumstances”. Where special circumstances arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances” the intention to resign was not the correct interpretation when the facts are judged objectively.”

More recently, in the matter of St John of God Community Services CLG -v- Opapeju Oyegoke UD2415, the Labour Held, in consideration of the authorities cited above, that,

“…once the Respondent was notified of the Complainant’s request to retract her letter of resignation, they should have inquired further rather than relying on a blanket policy of refusal. The Court finds that the Complainant was unfairly dismissed.”

Regarding the present case, while much of the evidence regarding the fact of the Complainant’s termination is in dispute, it is apparent that the purported resignation was issued in the heat of the moment and, as such, the same would constitute “special circumstances” as outlined above. While the evidence of the store manager was that she asked the Complainant to reconsider, and it noted that the Complainant disputes this, at the height of the Respondent’s case, both purported resignations were communicated while the parties were in dispute and occurred within the “heat of the moment’ as described in the authorities cited above. In these circumstances, the failure of the Respondent to reconsider the purported resignation constitutes unreasonable behaviour on their part.

In this regard, Section 6(7) of the Act provides that,

“…in determining if a dismissal is an unfair dismissal, regard may be had…(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”.

While a conflict of evidence arises as to the fact of the Complainant’s dismissal, the failure of the Respondent to properly investigate the circumstances surrounding the purported resignation and the Respondent’s failure thereafter to permit the Complainant to retract the purported resignation constitute unreasonable behaviour on their part.

In these circumstances, and in consideration of the authorities cited above, I find that the Complainant was both dismissed by the Respondent and unfairly dismissed within the meaning of the Act.

Finally, it is noted that by submission, the Respondent sought to impeach the Complainant’s credibility as a witness by reference to alleged instances of misconduct in the course of his employment. As these issues were not relevant to the matter of the fact of the Complainant’s dismissal and the issues referenced above, the same have had no bearing on the outcome outlined above.

CA-00070201-001 – Complaint under the Payment of Wages Act

This complaint was not pursued by the Complainant and is deemed to be not well-founded.

CA-00070201-002 – Complaint under the Unfair Dismissals Act

I find that the Complainant was unfairly dismissed within the definition of the Act.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate form of redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate their losses. In evidence, the Complainant stated that he successfully secured alternative employment approximately six months following his dismissal. While the Complainant is to be commended for securing alternative employment, it is not apparent that he took all reasonable steps to mitigate his losses in accordance with the Act. In particular, the Complainant did not provide a fulsome, corroborated account of his efforts to secure alternative employment in the months following his dismissal. Having regard to the foregoing, I award the Complainant the sum of €8,000 in compensation.

CA-00070201-001 – Complaint under the Minimum Notice and Terms of Employment Act 

As the Complainant did not receive notice of his dismissal, I find that the complaint is well-founded. Regarding redress, I award the Complainant the sum of €546 in compensation.

Unfair Dismissal, Resignation, Heat of the Moment, Reconsider