Complainant

Respondent

Parties

Ysobel O'Sullivan

Ann Marie Dabiri

Representatives

Represented herself 

Did not attend the hearing

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-00072905-001

27/06/2025

The respondent is a retro clothing store in George’s Street Arcade in Dublin.  The complainant worked there from April 2nd 2022 while she was a student.  She worked generally on Saturdays and Sundays for 17 hours per week and on public holidays.  When she was dismissed on May 28th 2025, her hourly rate of pay was €16.00.

In November 2023, the complainant said that she was issued with a written warning when she failed to turn up for work.  She had previously received a verbal warning for not turning up, but she said that the reason was because she was in hospital with glandular fever.  When she forgot to turn up for a four-hour shift in May 2025, she had a row with the shop manager, who she said, wasn’t happy.  She was dismissed on May 28th.  Because she wasn’t given notice of her dismissal, the complainant claims that, as she worked for the respondent for more than two years, she is entitled to two weeks’ pay in lieu of notice.

At the hearing, the complainant said that she didn’t receive a statement of her terms and conditions of employment, so she wasn’t able to provide a copy of a disciplinary procedure that might have been used to deal with her absence from work.  From her evidence, it is apparent that the respondent decided that the progression from a verbal warning to a written warning and then a final written warning for failing to turn up for work, meant that no notice of dismissal was required.

In my consideration of the complainant’s case, it’s useful to note the findings of the Labour Court in the appeal of DHL Express (Ireland) Limited against the decision of an adjudication officer in favour of Michael Coughlan[1].  Mr Coughlan was a van driver and he was dismissed when he caused damage to his company van.  His employer considered his actions as gross misconduct.  Upholding the decision of the adjudicator that the dismissal of Mr Coughlan was unfair, the chairman, Mr Haugh, quoted from the important decision of the former Employment Appeals Tribunal in Lennon v Bredin[2]:

“Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct.  We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category.  If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.”

The dismissal of an employee for gross misconduct happens infrequently.  I accept that, for any employer, but particularly for one in the retail business, the failure of an employee to turn up for work is frustrating and inconvenient for the management and for other staff.  Taking my guidance for the decision of the Labour Court however, it seems to me that dismissal without notice is reserved for very serious misconduct.  While it may have been reasonable to dismiss the complainant, it was unlawful not to allow her to work her notice or to pay her in lieu of notice.

I decide that this complaint is well founded.  The complainant was employed by the respondent for just over three years, and, in accordance with s.4(2)(b) of the Minimum Notice and Terms of Employment Act 1973, she is entitled to two weeks’ notice.  I therefore order the respondent to pay her €544.00, equivalent to two weeks’ gross pay.  As this award is compensation for a breach of a statutory right, in accordance with s.192A of the Taxes Consolidation Act 1997, it is not subject to deductions for PAYE, PRSI or USC. 

Minimum notice, pay in lieu of notice