Complainant

Respondent

Parties

Robert  Januszewski

Lidl Ireland GMBH

Representatives

Self-Represented

Mr. Killian O'Reilly, Fieldfisher

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-00039891-001

17/09/2020

The Complainant commenced employment with the Respondent on 1st December 2010. At all times his role was described as that of “store assistant”. The Complainant was a full time, permanent member of staff. At the outset of the hearing, the parties agreed that his average weekly salary was €415.38. The Complainant’s employment was terminated by the Respondent on the grounds of gross misconduct on 20th August 2020.

On 17th September, the Complainant lodged the present complaint with the Commission. Herein, he alleged that this his dismissal was influenced by the fact that he had raised an inter-personal issue relating to his line manager. He further submitted that the sanction of dismissal was disproportionate given the misconduct in question and the relevant mitigating circumstances. A hearing in relation to this matter was convened for, and finalised on, 14th January 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. No objections as to my jurisdiction to hear the matter were raised at any stage of the proceedings. 

As the fact of dismissal was not in dispute, the Respondent accepted the consequent burden of proof imposed by the Act.  

At the outset of the hearing, the Respondent submitted that the Complainant’s employment was terminated on the basis of gross misconduct. Having regard to the same, they submitted that the dismissal of the Complainant was not unfair for the purposes of the present Act.

On 27th February 2020, the Complainant was asked to undertake a task in the freezer area of the store. Before entering the freezer unit, the Complainant switched off the electricity supply to the unit. In addition to the same, the Complainant did not wear the correct PPE when entering the unit. On receipt of a compliant in relation to these activities from a colleague of the Complaint, he was invited to an investigation meeting. In the course of this meeting, the Complainant admitted to turning the freezer unit off and not wearing PPE as alleged. In he course of this investigation, a witness statement was taken from the Complainant’s line manager in relation to the same.

Following a number of delays, due in part to the Complainant’s unavailability, he was invited to a disciplinary meeting on 10th August 2020. In the course of this meeting, the Complainant again admitted to the conduct in question. Following a consideration of the same, the chair of the disciplinary meeting concluded the Complainant’s action on the date in question constituted gross misconduct. In so finding, he found that the Complainant’s actions could have place the Respondent’s customers at serious risk. Central to this determination was the Respondent’s responsibilities as regards the “cold chain” of frozen foods, and the potential health and safety risk arising from a breach of the same. The Complainant, by cutting power to the freezer unit, broke this cold chain and potentially endangered the Respondent’s customers. On foot of the same, the chair of the disciplinary meeting determined that there had been a “fundamental breakdown in trust between the company and its employee”. In these circumstances, the sanction of dismissal was deemed an appropriate outcome in the circumstances.  

The Complainant elected to appeal the decision to dismiss him in line with the Respondent’s internal policies. During this appeal, the Complainant stated that the decision to dismiss him was influenced by an inter-personnel complaint lodged against his line manager. The Complainant also took issue with the severity of the sanction, in light of his long service and clean record. In upholding the decision to dismiss, the chair of the appeal meeting found that the inter-personnel complaint was processed by other members of management and was conducted on a completely separate basis to the allegation of misconduct. The chair of the appeal also found that in circumstances whereby the Complainant had received training in relation to the cold chain, and the potential to endanger the health and safety of their customers, the sanction of dismissal was appropriate in the circumstances.

By submission, the Employer’s representative stated that the dismissal of the Complainant was both procedurally and substantially fair. He submitted the Complainant was only dismissed on foot of a comprehensive investigation, disciplinary and appeal process. This process was in accordance with the Complainant’s contractual and natural rights. He further submitted that the misconduct for which the Complainant was dismissed, i.e. the turning off the freezer unit, was not disputed at any stage by the Employee. The Respondent submitted this this action constituted gross misconduct as it represented a fundamental breach of trust between the parties. Finally, the Respondent’s representative submitted that all parties involved in the disciplinary process had no involvement in the grievance procedure and as such these matters could not form part of their consideration.

In summary, the Respondent submitted that the sanction of dismissal was a proportionate outcome and was well within the range of reasonable responses available to the Respondent. Having regard to the same, the Respondent submitted that the dismissal of the Complainant was not unfair for the purposes of the Act.

The Complainant stated that following a series of troubling incidents, he made a formal complaint against his line manager in accordance with the Respondent’s policies. Shortly thereafter, the Complainant manager retaliated with a complaint about him to management. This complaint related to an incident whereby he switched off the power to a freezer unit for a few minutes while he was working therein. The Complainant stated that on this occasion he was recovering from a cold and did not want to become sick again. He further stated that he large, industrial unit was turn off for a few minutes only, and that there was absolutely no prospect of the stock becoming defrosted. In this regard, he stated that the pallets of food sometimes spend a considerably more time out of the freezer unit whilst being stocked without any issue being raised by the Respondent.

During the various meetings throughout the disciplinary process, the Complainant at all times accepted his actions and did not seek to mislead the Respondent. The Complainant felt that the sanction of dismissal was wholly inappropriate in circumstances whereby no damage was caused to any stock at any stage, that this was the first incidence of this nature and that he had a long unblemished tenure with the Respondent.   The Complainant also submitted that his dismissal was influenced by the inter-personal complaint he raised against his line manager.

Section 6(1) of the Unfair Dismissals Acts provides that,

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

Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) provides that,

“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 [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, 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, and

b)     to the extent (if any) of the compliance or failure to comply…with the procedure…or with the provisions of any code of practice…”

The matter of Noritake (Irl)Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

In the present case, the Respondent has asserted that they acted reasonably in dismissing the Complainant on the grounds of gross misconduct, and as such the Complainant’s application under the Acts must fail. In the alternative, the Complainant, while accepting the conduct in question occurred, submitted that the Respondent failed to consider the relevant mitigating circumstances and alleged that the dismissal process was influenced by a grievance he lodged against his line manager. Consequently, he submitted that his dismissal was unfair for the purposes of the present Act. 

The Complainant has submitted that the complaint regarding the conduct that ultimately led to his dismissal was reported in retaliation for his raising a complaint against his line manager. In answer to a question, the Complainant accepted that he could only suspect this, as the manager in question was not present to give evidence regarding his state of mind at the relevant time. Notwithstanding the same, the manner and rationale for reporting the misconduct is somewhat irrelevant to the outcome of the disciplinary process. At all times the Complainant accepted that he committed the act in question, it is also apparent that his line manager has a duty to report such issues as they arise. In this regard the Complainant’s speculation as to the rationale for the initial reporting does not inoculate him from investigation or act as a defence to the alleged misconduct in question.

The Complainant further alleged that the inter-personal grievance he raised regarding his manager influenced the ultimate decision to dismiss him. In this regard, I note that position of the person that dismissed in the first instance, that he was entirely unaware of the substance of this complaint. I further note the evidence that this would not have interfered with the decision-making process in any event. In this regard, I note that the Respondent is a large organisation, with a great many managers operating in different stores, entirely distinct from each other. In light of the same, it is not difficult for the Respondent to appoint different, and entirely unconnected, managers to investigate the disciplinary and grievance complaints. Having regard to the same, I accept the Respondent’s evidence that the disciplinary process was not influenced by the grievance complaint in any material manner.  I further note that the Complainant allegation in this regard in speculative in nature, and that he has not identified any particular evidence that would support this position.

The final aspect of the claim advanced by the Complainant, is that the sanction of dismissal was disproportionate in all the circumstances. In this regard I note that the Complainant was a long-serving member of staff, indeed on the date of his dismissal he had almost completed ten years of uninterrupted service. I further note that the Complainant had no open disciplinary sanctions on file and no evidence was presented to indicate that he had ever been the subject of a disciplinary investigation prior to that which led to his dismissal.  The incident in question was a one-off event, again no evidence was presented to suggest that this represented a pattern of behaviour on the part of the Complainant. It is further apparent that the Complainant did not commit the act with malice, but rather he did so on the understanding that it would not cause any damage to the Respondent’s stock.

Notwithstanding the same, the Respondent as a wholesale food retailer has an enormous duty of care to the general public. The safe handling of frozen produce and the potential implications of any breach in this regard could have devastating consequences for the Respondent and its customers. Having regard to the same, the Respondent is entitled to view any breach of health and safety in this area extremely seriously. The Complainant, in answer to a question, candidly accepted that the conduct in question constituted misconduct and that would, most likely, attract some form of disciplinary sanction. The Respondent’s submission is that this misconduct constituted gross misconduct, and that consequently they were permitted to dismiss the Complainant on foot of the same.

In the matter of Desmond Brennan -v- Institute of Technology Carlow UD281/2000, the Employment Appeals Tribunal stated that,

“…“gross misconduct” must be something very serious indeed, perhaps criminal or quasi-criminal in nature.”

In the present case, the Complainant stated that he turned off the unit for a few minutes on the understanding that this would not damage any of the stock contained therein. The Complainant did so as he was recovering from illness and believed that this would prevent him from becoming unwell again. Having regard to the same, it is apparent that the Complainant did not intend to cause any damage or breach any health and safety regulations by his actions. In the circumstances, I find that the Complainant acted without malice. He accepted that his actions were foolish on the date in question, but that there was no ill-intention and little benefit on his part.  In these circumstances, and having regard to the Complainant’s lengthy service, it is apparent that a final written warning would have served the purpose of preventing this action from occurring in the future. While the Respondent has a duty to enforce its rules regarding health and safety, a final written warning is a significant punishment, one that is a single step removed from dismissal.

The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

In matter such as these the correct test is to determine whether any reasonable employer would have dismissed the Complainant. Having regard to the same, it is important that the decision maker does not substitute their view for that of the Respondent. The decision to dismiss may well be harsh, however so long as it falls within the band of reasonable responses open to the Respondent, it will not be unfair for the purposes of the present Act. In the present case, I find that no reasonable employer would have dismissed the Complainant in these circumstances. On review of the nature of the misconduct and the Complainant’s long service, it is clear that a lessor sanction would have served the purpose of preventing this misconduct from re-occurring and would serve as a safe guard for the Respondent’s health and safety practices.  As a consequence of the same, I find that the Respondent has not discharged the burden imposed by the Act and that the complaint is well-founded.

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

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 redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In this regard, I note that the Complainant did not provide any evidence of his efforts to seek work following his dismissal. I further note that the retail industry experienced a shortage of staff during the period following the Complainant’s dismissal, especially so  in a large urban area. Having regard to the same, I award the Complaint the sum of €2,492.28, or the equivalent of six weeks’ salary, in compensation.

Gross Misconduct, Health and Safety, Band of Reasonable Responses