UDD2638

UD/25/73

DECISION  NO.  UDD2638

PARTIES:

DIVISION:

Chairman:	Ms McGowan
Employer Member:	Mr Marie
Worker Member:	Ms Hannick

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00052840 (CA-00064740-001)

BACKGROUND:

The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 16 June 2025 in accordance with Section 8A of the Unfair Dismissals Act 1977. A Labour Court hearing took place on 4 August 2026.

The following is the Decision of the Court:-

DECISION:

Appeal Details

1. This is an appeal by Ms Róisín Bohan against a decision of an Adjudication Officer (ADJ-00052840/CA-000664740-002), dated 4 September 2025, made under the Unfair Dismissals Act 1977 to 2015 (the UD Act) in a complaint against Core Auction Ventures Limited trading as South Dublin Auction, which concluded that the complaint was not well founded. This appeal is linked to an appeal under the Terms of Employment (Information) Act 1994 to 2014 (TE/25/55, Decision No. TED2620) and an appeal under the Payment of Wages Act 1991 PW/25/62, Decision No. PWD2630)
2. For ease, the parties are referred to in the same way as at first instance, so Ms Bohanis referred to as “the Complainant” and Core Auction Ventures Limited trading as South Dublin Auction as “the Respondent”. The Complainant did not attend the hearing before the Workplace Relations Commission.
3. A hearing of the Court was held on 4 August 2026 in Dublin, with the Complainant attending unaccompanied and unrepresented. The Respondent was represented by its Managing Director, Mr Ross Graham. The Court received written submissions in advance of the hearing and heard submissions from both parties at the hearing. The Complainant and Mr Graham gave evidence under oath.

Summary of the Complainant’s Submission

4. The Complainant worked as an administrative assistant for the Respondent, with an annual salary of €28,288, from 27 February 2023 until her dismissal on 15 March 2024.
5. The Complainant’s position was that her employment had been terminated without prior warning, disciplinary procedure or performance review. The Complainant identified issues with high turnover of office administration staff and, on 15 March 2024, sought a meeting with two of the Respondent’s directors to address the issue given the stress it was causing her. At 3pm on 15 March 2024 the Complainant was called into a private meeting with one of the directors, the other having left for the day, and was told that “we needed to part ways” and that a new staff member had been hired who would act as a replacement. The Complainant had been given no prior indication of any performance issues and was not subject to any formal disciplinary process. She was not offered an opportunity to respond and nor was she afforded any form of due process contrary to fair procedures under the UD Act.
6. In the period between 15 March 2024 and 22 July 2024 the Complainant made 42 job applications and attended 10 interviews. She commenced a trainee programme with Dublin Bus on 22 July 2024 on a starting salary of €35,406 rising to €43,667 on 9 September 2024 on completion of her training.

Summary of the Complainant’s Evidence

7. The Complainant said that she commenced employment with the Respondent on 27 February 2023, initially paid in cash “off the books” until 10 October 2023 when she was “put on the books”. On Friday 15 March 2024 the Complainant said that she had requested a meeting with two of the directors but that one had gone home and in the afternoon she was called into a meeting with Mr Graham. She said that in the meeting Mr Graham told her that this would be her last day in the company and that the company already had someone to replace her. The Complainant said that she did not challenge Mr Graham but sought feedback and was told that her time and attendance had been an issue and that she had not gelled with management. She said specific timekeeping incidents were spoken of where she had been 10 minutes late because of a storm and where she had been 20 minutes late the previous day.
8. The Complainant said she joined Dunnes Stores (Dunnes) part-time in October 2023, without reference to the Respondent, but left on 6 December 2023 due to excessive hours and the opportunity to have additional hours with the Respondent. She said that in October 2023 she had been given a choice of going from three days per week to two days per week in the cataloguing department of the Respondent or ceasing employment, but nothing came of that. The Complainant said she worked full-time with the Respondent from 11 December 2023 to the date she was dismissed. She said that a number of administrative assistants joined and left and she was training people in on the system. The office manager of two years had left and there was a short-term replacement. Between December 2023 and March 2024 the Complainant said that she approached one of the directors about taking on the role of office manager and that she had seen the directors laughing about it. On 13 March 2024 the Complainant said she witnessed an event with an employee which was distressing to watch and which led to the employee leaving the Respondent.
9. In the meeting of 15 March 2024 the Complainant said, while there was reference to her having been late, the meeting was not about timekeeping. She said she was told she was not suitable for the job and that she tried to defend herself by pointing out what she had done including training people with limited resources but felt she was not being listened to. She found the meeting intimidating and felt the company was dismissive of her. The Complainant said she was told that day was her last day with the company and she left after the meeting at approximately 4pm. She was paid for the following week, when the company was to be closed, and for her accrued holiday pay.
10. In the period between 15 March 2024 and 22 July 2024 the Complainant said she made 42 job applications, mainly in arts related administrative roles. She applied for Dublin Bus on 12 April 2024 and commenced employment on a training contract on 22 July 2024 on a starting salary of €35,406 rising to €43,667 on 9 September 2024 on completion of her training. She did not apply to Dunnes.
11. In cross-examination, the Complainant said that she had not worked with Dunnes prior to joining the Respondent, that she had been working in Waltons in Crumlin one day per week. She denied calling in sick on Monday and Wednesday of her last week and denied being 50 minutes late on Thursday 14 March but accepted she was 20 minutes late for a 10.30am start. The Complainant denied issuing an ultimatum to the Respondent that she would leave if she was not promoted to office manager. When it was put to her that she had been engaged in movie extra work after her employment terminated she first said she did not know if she had done any work and then accepted that she had worked on two movies for 14 days and earned €1,701.09.
12. In answer to the Court asking for reasons as to why she chose not to tell the Court directly about the movie extra work the Complainant said that it was an oversight, that she was getting muddled between the WRC and the Labour Court.

Summary of the Respondent’s Submission

13. The Respondent’s sales manager, who knew the Complainant personally, had referred the Complainant to the Respondent, stating “she had previous experience in administration and art, and was working in retail in Dunnes Stores”. The Complainant was interviewed and offered a role as part-time office administrator at a rate of €15 per hour.
14. The Complainant commenced employment on 27 February 2023 but ceased employment on 24 March 2023 to return to Dunnes for more hours. She rejoined the Respondent on 24 April 2023 and her employment terminated on 15 March 2024. The Respondent’s position was that the Complainant’s break in service disqualifies her claim under the UD Act “which requires 12 months of continuous service”.
15. The Respondent described the Complainant’s conduct during employment as including repeated lateness, absenteeism, confrontational behaviour and a refusal to work collaboratively with colleagues, noting that on her last day she secretly recorded a meeting with management which constituted “an act of entrapment and a clear breach of data protection and fair procedures”. In her final week of employment the Complainant was out sick on Monday and Wednesday, was 50 minutes late on Thursday and on Friday issued an ultimatum that she would resign if she was not promoted to office manager. At 4pm on Friday 15 March 2024 the Complainant requested a meeting with two directors but Mr Graham attended alone. In that meeting Mr Graham confirmed the Complainant’s departure and that she would be paid one week’s notice and any holiday pay owed, which was duly paid to her.
16. The Respondent submitted that there was no evidence of financial loss as the Complainant secured paid movie extra work immediately after the termination of her employment, received unemployment benefits, performed with her band, and began higher-paid full-time employment within three months.

Summary of the Evidence of Mr Ross Graham, Managing Director of the Respondent

17. Mr Graham (the witness) said that the Complainant joined the Respondent directly from Dunnes. The witness said that the Complainant worked for three weeks, left for four weeks to return to Dunnes and then returned on 24 April 2023. The witness said that he deeply regretted taking her back but that there was a clear break in service. The witness said that the Complainant had been late 20 to 30 times during the course of her employment, and described it as ridiculous to terminate her if she had only been late once. In respect of the proposal to move her to cataloguing the witness said that he thought it was a better option for her but that she wanted to stay in the office. The witness said that after the office manager left the Complainant asked, on a monthly basis, for promotion to the role and a raise. The witness described the Complainant as “clearly unsuitable” for the role of office manager. In the final week of the Complainant's employment the Complainant arrived to work on the Thursday at 10.50am for a 10.00am start. On the morning of Friday 15 March the witness said that the Complainant issued an ultimatum that she would leave if she was not promoted. The Complainant asked for a meeting and, after the other director left, the Complainant “hijacked” him into having a meeting with her which she secretly recorded.
18. The Complainant did not cross examine the witness.
19. In answer to questions from the Court the witness said he did not have the information available to answer whether the Complainant was paid cash in hand with no payslips until October 2023, but that it was not common practice to do that. The witness confirmed that he had no records of having spoken with the Complainant about her timekeeping and that no procedures or policies had been given to her. The witness said that she was not advised in advance about the meeting as it came about because of the ultimatum she issued. The witness accepted that the decision to dismiss was based on the fact that the Complainant did not have 12 months’ service. When asked how he knew the Complainant left to work for Dunnes and came back to the Respondent the witness said that he was unclear whether the Complainant had told him or whether he had heard it from the Respondent’s sales manager. There was no paperwork or payroll information in respect of what the witness said was the Complainant’s gap in employment. The witness said that the Complainant did not work for the Respondent during March and April 2023 and that she was taken back because the sales manager requested it. The witness said that the Complainant told him at her interview that she was working with Dunnes and that he came to understand that she went back to work there. The witness said that the conflict of evidence was because the Complainant was not being truthful. The witness accepted that for the period of service in dispute that the Complainant was not officially on the payroll of the Respondent (contrary to his earlier evidence that he lacked the information to confirm same).

Relevant Legislation

20. Section 1 of the UD Act sets out the definitions where an “employee” is defined as meaning:

“an individual who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment … ”.

A “contract of employment” is defined as meaning “a contract of service or of apprenticeship, whether it is expressed or implied and (if it is express) whether it is oral or in writing”.

An “employer”:

“in relation to an employee, means the person by whom the employee has entered is (or in a case where the employment has ceased, was) employed under a contract of employment subject to the qualification that the person who under a contract of employment …”.

“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, or

(c)  the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose”.

“Date of dismissal” means-

“(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act 1973, the date on which that notice expires.

 (b)  where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates-

• The earliest date that would be in compliance with the provisions of the contract of employment,
• The earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act 1973 …”.

21. Section 2(1) of the UD Act provides:

“Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

• An employee (other than persons referred to in section 4 of this Act [not relevant]) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him…”.

22. The computation of continuous service is set out in the first schedule to the Minimum Notice and Terms of Employment Act 1973 (the 1973 Act) and provides that:

“1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by-

• the dismissal of the employee by his employer, or
• the employee voluntarily leaving his employment.

2. A lock-out shall not amount to a dismissal of the employee by his employer.
3. A lay-off shall not amount to the termination by an employer of his employee’s service.
4. A strike by an employee shall not amount to that employee's voluntarily leaving his employment.
5. An employee who claims and receives redundancy payment in respect of lay-off or short time shall be deemed to have voluntarily left his employment.
6. The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.”
7. Section 6(1) of the UD Act provides:

"Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal."

24. Section 6(4) of the UD Act provides:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence, or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)  the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or his employer) of a duty or restriction imposed by or under any statute or instrument made under statute."

25. Section 6(7) of the UD Act provides:

"Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so -

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.”

26. Section 14(1) of the UD Act provides that:

“An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.”

27. Section 7(1) of the UD Acts deals with redress in respect of an unfair dismissal and provides:

“Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

• re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
• re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
• (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or
• if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person, who by virtue of the change, becomes entitled to such ownership.

Section 7(2) provides that:

“Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to-

• the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
• the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,
• the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,
• the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved by the Minister,
• the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and
• the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

Section 7(2A) provides:

      “In calculating financial loss for the purposes of subsection (1) payments to the employee-

• under the Social Welfare Acts, 1991 to 1993, in respect of any period following the dismissal concerned, or
• under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.”

Section 7(3) sets out that ““financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”.

Deliberations

28. The Complainant included in papers submitted to the Court a document which purported to be a transcript of the meeting of 15 March 2024 between the Complainant and Mr Graham, which meeting had been surreptitiously recorded by the Complainant. The Court had no regard to the purported transcript which had not been authenticated or in any way independently verified prior to its submission and was not capable of being authenticated at the hearing. Both attendees of the meeting were in court and gave sworn evidence in respect of the meeting to which the Court had regard in reaching its decision.
29. It was not disputed that the Complainant was an employee of the Respondent albeit there was a dispute as to the period of employment. The Complainant’s evidence was that she was employed by the Respondent from 27 February 2023 until she was dismissed from her employment on 15 March 2024. The Respondent’s evidence is that the Complainant broke her service by leaving the Respondent for one month in March 2023 rejoining on 24 April 2023 which meant that she did not have one year’s continuous service and was therefore not entitled to the protection of the UD Act on application of section 2(1)(a).
30. The Complainant’s evidence was that she had no break in her employment and was employed continuously from 27 February 2023 to 15 March 2024, a period in excess of one year. Email evidence of the Complainant’s start date was provided to the Court and it was not disputed between the parties that the Complainant’s last day of work was 15 March 2024. The height of the Respondent’s case in respect of continuity of service was that the managing director had heard, either from the Complainant or the Respondent’s sales manager, that the Complainant had left the Respondent’s employment and come back a month later. No documentary or satisfactory evidence was provided to support the Respondent’s contention that the Complainant left its employment for a one-month period from 24 March 2023 to 24 April 2023. It was common case that the Complainant was not in receipt of payslips during this disputed period so it was not within the Complainant's capability to prove to the Court that she was employed during the disputed period other than by way of her sworn evidence which she gave to the Court. The Respondent on the other hand, as the employer, was not able to produce any payroll or HR documentation or even email correspondence which supported his assertion, based on what someone said, that she had left to return to a former employer, which employer the Complainant disputed having worked for prior to the disputed period of employment. The Court had some difficulty with the credibility and consistency of the Respondent’s evidence in respect of the purported break in service.
31. Section 1 of the First Schedule of the 1973 Act provides that employment is continuous unless terminated or the employee voluntarily leaves. The Respondent did not contend that the Complainant’s employment was terminated by it (prior to 15 March 2024) and there is no evidence that the Complainant left her employment voluntarily for the disputed period. The Court considers, on the balance of probabilities and in the absence of evidence to the contrary, that the Complainant was in the continuous service of the Respondent from 27 February 2023 until her employment was terminated on 15 March 2024. Further, the date of dismissal as defined in the UD Act is the date on which the notice to which the Complainant is entitled would have expired. In the absence of a written contract of employment the statutory period of notice to which the Complainant was entitled was one week, for service of between 13 weeks and two years. In the absence of a specific entitlement for the Respondent to pay in lieu of notice, the date of dismissal therefore is the date on which her one-week statutory notice would have expired, which was 22 March 2024. The Court therefore considers that the Complainant’s continuous employment with the Respondent was from 27 February 2023 to 22 March 2024, a period of more than one year.
32. Having concluded that the Complainant had the requisite service to enjoy the protection of the UD Act the Court has to consider the fairness or otherwise of the dismissal.
33. Section 6(1) of the UD Act provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. The Respondent’s justification for the dismissal was that the Complainant had a poor record of attendance and timekeeping, that she was confrontational in her approach, was not collaborative with colleagues and did not gel well with management. The evidence given was that the timing of the termination of the Complainant’s employment was after she issued an ultimatum that she would resign if she was not promoted. It was confirmed in evidence on the part of the Respondent that the Complainant was not subjected to any disciplinary procedure in respect of the performance and/or conduct issues identified by the Respondent and had not been subject to any prior warnings in respect of same. The Respondent’s evidence was that she was not provided with the disciplinary policies or procedures which should be observed by the Respondent before and for the purpose of dismissing her, contrary to section 14(1) of the UD Act. No prior warning, that she was at risk of termination, was given to the Complainant and she was summarily dismissed without any opportunity to challenge or appeal the decision. It was clear from the Respondent’s evidence that the dismissal of the Complainant was conducted in the absence of any element of procedural fairness and was premised on the basis of her perceived lack of service which would have denied her redress under the UD Act.
34. While the Respondent may have been dissatisfied with the Complainant’s conduct and/or performance in her role the Respondent did not even apply the most basic procedures which would be appropriate in addressing same even if the conduct/performance issues were such that would justify dismissal, which the Court does not find. The Court is not satisfied that the Respondent has demonstrated that there were substantial grounds justifying the Complainant’s dismissal. Further, the Court finds that the Respondent acted unreasonably in the manner in which it conducted itself in relation to the dismissal by failing to apply any or any fair procedures in reaching the decision to dismiss. The Court finds that the Complainant was unfairly dismissed by the Respondent.
35. Section 7(1) of the UD Act provides that redress for an unfairly dismissed employee is, whichever of reinstatement, re-engagement or compensation the Court considers appropriate, having regard to all the circumstances. The Complainant indicated that she had moved on with her career and was gainfully employed in a new role with a different employer and was not seeking either reinstatement or re-engagement. In circumstances where the Respondent had expressed strong views regarding the suitability of the Complainant for the role and the relationship between the parties appeared to have broken down, particularly once the surreptitious recording of meetings came to light, and having regard to the Complainant’s views the Court considers compensation to be the most appropriate remedy.
36. In assessing what level of compensation is just and equitable having regard to all the circumstances, the Court, having regard to the provisions of section 7(2)(d) of the UD Act, is not satisfied that the Complainant provided sufficient evidence of her efforts to mitigate her loss. While she said she applied for 42 jobs and in her submissions asserted that she attended 10 interviews she was unable to provide any oral evidence regarding those applications and interviews save for the successful process with Dublin Bus, which commenced within three weeks of the date of dismissal. Further, no documentary evidence whatsoever was provided to the Court regarding the Complainant’s efforts to mitigate her financial losses. In seeking compensation as a remedy the Complainant advanced a claim that she had suffered a loss of over four months’ income. The Court notes that in her submissions and evidence, until it was put to her in cross examination, the Complainant failed to disclose income from working as a movie extra resulting in her overstating her purported financial losses. She expressly stated in her submissions that she was unemployed for the period from 15 March 2024 to 22 July 2024. The Complainant’s income from July 2024 onwards was substantially higher than her salary with the Respondent. In assessing financial loss there was no issue of compensating the Complainant for loss of her rights under the Redundancy Payments Acts in circumstances where she had not yet acquired such rights with the Respondent. Contrary to the Respondent's submissions the Court does not take into account social welfare payments received by the Complainant further to the provisions of section 7(2A)(a) of the UD Act.

Decision

37. The Court is satisfied that the Complainant had more than one year’s continuous service and is entitled to the protection of the UD Act. The Respondent’s dismissal of the Complainant was premised on the basis of her lack of service and was conducted in the absence of any element of procedural fairness. The Court finds that the dismissal of the Complainant by the Respondent was an unfair dismissal.
38. The Court sets aside the decision of the Adjudication Officer, dated 4 September 2025, bearing Adjudication Reference No. ADJ-00052840 and Complaint Reference No. CA-00064740-002, which corrected an original decision dated 9 May 2025, which had found the Complainant’s complaint to be not well founded.
39. The Court considers that compensation is the appropriate remedy and considers an amount of four weeks’ compensation to be just and equitable having regard to all the circumstances. This award of compensation for financial loss amounts to €2,174 gross, which is subject to the usual statutory deductions.
40. The Court so decides.

	Signed on behalf of the Labour Court
	Niamh McGowan
CC	______________________
22/10/2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Ceola Cronin, Court Secretary.