Complainant

Respondent

Parties

Sean  O'Reilly

Lidl Ireland GMBH

Representatives

Self-Represented

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-00047025-001

07/11/2021

The Complainant commenced employment with the Respondent as a customer assistant on 11 July 2019.

At all times his role was described as that of “Customer Assistant. The Complainant’s employment was terminated by the Respondent on the grounds of gross misconduct on 07 July 2021.

The reason giving for his termination by his employer was for gross misconduct due to the consumption of products without prior purchase.

The Complainant submitted his complaint to the Workplace Relations Commission (WRC) on 07 November 2021. The Complainant submitted that the sanction of dismissal was disproportionate given the misconduct in question.

In response, 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. The Respondent further submitted that the dismissal was reasonable in all the circumstances of the case and furthermore that the Complainant made a significant contribution to the dismissal outcome.

A hearing in relation to this matter took place on the 07 October 2022.

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. 

The Respondent submits as follows:

The Respondent is a discount retailer that operates a number of stores across the island of Ireland.

The Respondent submitted that the Complainant commenced work as a Customer Assistant in the in the Gorey Supermarket Branch on the 11 July 2019.

The Respondent representative advised the hearing that the Complainant’s employment was terminated on the basis of gross misconduct. Having regard to the same, the Respondent representative added that the dismissal of the Complainant was not unfair for the purposes of the present Act.

The Respondent representative further advised the hearing that on the 28 December 2020 the Complainant during the course of carrying out his duties consumed goods without prior purchase. The Respondent representative added that this was in breach of company policy.

In this regard, the Respondent Mr Dariusz Kacinskas (Store Manager) gave evidence at the hearing that on the date of the incident, he was the Store Manager. He advised the hearing that on Monday, 28th December 2020, he was making his way to the Meat & Poultry section to speak with the Duty Manager. While talking to the Duty Manager, the Store Manager noticed a half empty bottle of a Yakult drink placed on a loading pallet. The Store Manager further advised the hearing that he asked the Duty Manager why it was there in which the Duty Manager informed him that the Complainant had giving it to him, and he didn’t think in the moment to question where he had got the Yakult drink from.

The Store Manager gave evidence that shortly after the conversation with the Duty Manager, he spoke with the Complainant to ask him if he purchased the Yakult drink in which the Complainant confirmed that he had not purchased the Yakult drink. The Store manager gave further evidence that the reason given by the Complainant for consuming the product in question and distributing a number of them to other staff members was because they were due to be written-off and put in the write-off area. The Store Manager added at the hearing that the Complainant did not write off the items in question, and instead he took one for himself and also distributed the others to staff members. The Store Manager noted further that he reminded the Complainant of the company write-off procedure and informed him that is a very serious incident.

The Store Manager gave further evidence that this was a breach of company policy and while he noted the Complainant said he was consuming a product which he believed would be written off, they have rules around the write off of goods and it is only the Store Manager that has the authority to sanction and sign off on goods to be written off as referenced in the company policy.

It is in these circumstances the Store Manager reported and referred the matter onto Mr Pierce White (Sales Operations Manager) for further investigation. The Sales Operation Manager gave evidence at the hearing that following his discovery of this incident, reported to him by the Store Manager, he made a decision that an investigation meeting needed to be conducted and made arrangements for an investigation meeting with the Complainant and also, witness meetings with a number of staff members.

The Respondent Representative advised the hearing on this point that following a number of delays, due in part to the Complainant illness, the investigation meeting did not take place until the 19 February 2021. The Sales Operations Manager added the purpose of the meeting was to ascertain the facts in relation to the alleged gross misconduct and was carried out over phone due to the Covid restrictions at the time.

When the meeting did take place, the Sales Operations Manager advised the hearing that Complainant admitted to the conduct in question. He further advised the hearing that during the meeting, he had asked the Complainant if he understood the company write-off procedure and noted the Complainant confirmed he did.

The Sales Operations Manager also told the hearing that on asking the Complainant if on the morning of Monday, 28 December 2020, he consumed write-off items and if he had given them out to other team members the Complainant confirmed that he did consume the write-off items and that he did give them out to his colleagues. The Sales Operations Manager also advised the hearing that during the meeting the Complainant added that he thought he was benefiting and contributing to the store, as most of the staff he was working with on the day were feeling unwell.

The Sales Operations Manager concluded at the hearing that on interviewing a number of staff members, including the Store Manager and a number of staff members present on the day of the incident, he found the Complainant had a case to answer.

The Respondent representative advised the hearing that the Complainant was then invited to a disciplinary meeting on 23 March 2021 in which he was advised of the allegations in writing in advance. The Respondent noted at the hearing that he was provided with all of the material to be relied on in the meeting in advance and also was further advised that he would be provided with the opportunity to make any points that he wished to make in his own defence and that he could also be accompanied by a colleague.

The Respondent also submitted that he was advised that he would have the right of appeal any sanction if one were imposed. The disciplinary meeting was conducted by a different Sales Operations Manager (Sales Operations Manager 2) who was not present at the hearing and the Complainant was afforded the opportunity to make any points that he wished in his own defence.

In explaining the reason for the delay in the outcome of the disciplinary investigation being communicated to the Complainant, the Respondent advised the hearing that during the course of the disciplinary investigation the Complainant lodged a Dignity at Work complaint against the Store Manager who was his line manager at the time in March 2021 and the outcome of this was not finalised until the end of May 2021.

The Respondent added that the investigation found no wrongdoing and the Complainant did not appeal the outcome and also confirmed he had no issues with the outcome.

On recommencement of the disciplinary investigation the Respondent representative submitted at the hearing that the Sales Operations Manager 2 took into account all points made by the Complainant, but ultimately concluded that the Complainant had breached company procedures and as a result of this, there had been a fundamental breakdown of trust in the working relationship between the Employer and the Employee. On that basis, the Complainant's employment was terminated on 07 July 2021.

The Respondent Representative added that the Complainant was afforded the right to appeal the sanction which he availed of on the 09 July 2021. The appeal hearing was conducted by Mr John Gamble (Sales Operations Manager 3)who gave evidence at the hearing that he scheduled a meeting with the Complainant on 29th July 2021 and engaged with each of the Complainant's points that he raised in his appeal.

The Complainant was assisted in the appeal hearing by a colleague (Mr. John Larkin)

The Sales Operations Manager 3 explained at the hearing that his role in regards to the appeal as outlined in the employee handbook was to:

(a)    Confirm the original decision.

(b)    Revoke the original decision; or

(c)     Substitute a different disciplinary sanction

In his reasoning for upholding the decision, the Sales Operations Manager 3 advised the hearing that the position of Customer Assistant requires a significant amount of trust and what is also of equal importance is due to its business model as a discount retailer.

The Respondent submitted further at the hearing on this point that if they were to take a more lenient approach to incidents in which a staff member had consumed goods without prior purchase this could have a knock-on financial effect on its business model therefore it was paramount staff were aware of the consequences and outcome of such actions.

The Sales Operations Manager 3 also advised the hearing that the Complainant was aware of the procedure for the handling of write off goods and also where an employee damages irreparably the working relationship and trust between the employee and employer that this may amount to gross misconduct.

The Sales Operations Manager 3 added that it also considered the Complainants notes that this was common practice by staff in the Gorey store but after considering the evidence and follow up with the Store Manager it found no evidence to indicate that this was the case.

On these points, the Sales Operations Executive concluded that this was the deciding factor in not substituting a different disciplinary sanction other than dismissal to the Complainant. Ultimately, as a result the Complainants appeal was not upheld, and the outcome of the hearing was communicated by way of letter to the Complainant on 09 August 2021 – which upheld the decision to dismiss.

In its closing summary, the Respondents representative advised the hearing that the dismissal of the Complainant was both procedurally and substantially fair. The Respondent representative submitted that 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.

The Respondent representative further submitted that the misconduct for which the Complainant was dismissed, i.e. the consumption of goods without prior purchase was also not disputed at any stage by the Complainant.

The Respondent representative further stated that this action constituted gross misconduct as it represented a fundamental breach of trust between the parties. The Respondent’s representative submitted that all parties involved in the disciplinary process were not involved in the grievance procedure and as such these matters could not form part of their consideration.

The Respondent further submitted that the sanction of dismissal was a proportionate outcome and was well within the range of reasonable responses available to the Respondent.

In addition, the Respondent Representative noted that the employee contract of employment sets out the procedure for the handling of write off goods and also where an employee damages irreparably the working relationship and trust between the employee and employer that this would amount to gross misconduct. Having regard to the same, the Respondent concluded that the dismissal of the Complainant was not unfair and/or the Complainant substantially contributed to his own dismissal.

In its post hearing submission, the Respondent submitted that at the hearing, the Complainant failed to adduce any evidence of his efforts to mitigate loss and when he was provided with a further opportunity to do so by the Adjudication Officer, the Complainant has done nothing more than furnish a screenshot of what appears to be an email inbox.

The Respondent submitted that all of the emails which the Complainant puts forward as job applications appear to be dated in August 2021, one month post dismissal. The Respondent submits that this is entirely insufficient and does not allow the Adjudication Officer to reasonably come to the conclusion that the Complainant has demonstrated adequate efforts to mitigate his loss.

In the Respondents final comments on the Complainants efforts to mitigate his loss the Respondent cannot integrate the Complainant's alleged loss in a vacuum, and it is a matter for the Complainant himself to provide the evidence and the documents upon which the Adjudication Officer may reasonably make a decision. He has failed to do so despite been provided with the opportunity both at hearing and a further opportunity, post hearing.

The Complainant Mr Sean O’Reilly submits as follows:

The Complainant submitted at the hearing that he worked with the company from the 11 July 2019 until the termination of his employment on 07 July 2021. He submitted he worked as a customer assistant and on the date of the incident 28 December 2020 he was working with the pack section and consumed a Yakult drink product.

The Complainant further submits that on the day before the date in question another individual had pulled the packaging off a shelf and some of the Yakult drinks in the packaging had burst and become damaged. The Complainant noted that he had put the damaged packaging with the Yakult drinks on his pallet which he intended to discard and write off but forgot about them.

The Complainant advised the hearing that the following day, which was the date of the incident, he realised the damaged goods were still on his pallet as he had forgotten to discard of them the previous day.

In addition, the Complainant submitted that as a number of the staff on the date of the incident were feeling ill, he made a decision to distribute some of the remaining Yakult drinks to other staff members and consumed one himself.

The Complainant in his reasoning for consuming and also distributing the product to other staff members, noted that a number of staff were ill and, in an effort, to boost morale he thought he was benefiting the staff to help them get through the day.

The Complainant further advised the hearing that shortly after consuming the drink he was confronted by Mr Dariusz Kacinskas (Store Manager) who asked him about the half-consumed Yakult drink left in the non-food area.

The Complainant confirmed at the hearing that in his response to the Store manager he admitted to the consumption of the Yakult drink but didn’t think by consuming it, he was causing any harm and it was not done maliciously or in bad faith.

The Complainant noted after this conversation with the Store Manager he paid for the product later in the day.

As a result of this incident on the 28 December 2022 the Complainant advised the hearing that an investigation process commenced which found that he had breached company procedures and there had been a fundamental breakdown of trust in the working relationship between the Employer and Employee.

The Complainant submitted that following the completion of the investigation process, he was dismissed from his employment with the Respondent with effect from the 07 of July 2021, on the grounds of alleged gross misconduct for consumption of a product on the 28th of December 2020 without prior purchase.

The Complainant further submitted that he appealed the decision on the 09 July 2021 and an appeal hearing took place on the 29 July 2021 in which the Complainant raised a number of points in relation to the proportionality of the sanction.

The Complainant told the hearing that his appeal was not upheld, and the outcome was communicated to him on the 09 August 2021 which upheld the decision to dismiss him for a breach in company procedures and there been a fundamental breakdown of trust in the working relationship between the Employer and Employee.

In his defence at the hearing, the Complainant submitted that the goods in question were going to be written off as the packaging was damaged and he had paid for the goods thereafter.

The Complainant also submitted that the decision by the employer to terminate his employment on the grounds of proportionality and reasonableness is unfair.

On a further note, the Complainant submitted that the decision to terminate his employment constitutes an action for unfair dismissal as the conduct in question does not amount to gross misconduct.

The Complainant stated that the consumption of goods intended to be written off is common practice in some of the stores and he advised the hearing that there was no malice to his actions on the date and he admits what he had done was wrong.

On this point Mr John Larkin, a fellow employee at the time of the incident gave evidence on behalf of the Complainant that while he had observed in other stores staff consuming goods intended to be written off without sanction during his time working in other stores, he acknowledged at the hearing that that the consumption of goods that were intended to be written off was not a practice that he had ever observed occur in the Gorey store where the incident took place.

Mr Thomas O’Connell also a fellow employee at the time of the incident gave evidence on behalf of the Complainant at the hearing that during his time as an employee of Lidl he witnessed a staff member during his time working in the Enniscorthy store consume goods prior to purchase and to the best of his knowledge his understanding was that the employee involved in that incident was  informed by the Store Manager of that store verbally not to do it again.

In the Complainants closing remarks he submitted that he believes that the sanction of dismissal is completely disproportionate considering the value and significance of the goods in question which have since been paid for by him.

In addition, he also advised the hearing that the conduct in question does not warrant dismissal on the basis of gross misconduct and an alternative sanction should have been administered other than dismissal.

In his post hearing submission, the Complainant furnished documentation which included a screenshot of an email box showing his efforts during the month of August 2021 in support of his efforts to mitigate his loss. The Complainant also submitted documentation to support that he secured new employment with a new employer on the 01 from October 01 2021 to July 09 2022.

The Complainant also submitted documentation to support his current place of employment which he commenced on the 10 July 2022.

I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing. Following the hearing, the parties made further written submissions in relation to the Complainants correct rate of pay and also his efforts to mitigate his loss.

The parties agreed at the hearing that the date of commencement in the role and the dismissal was not in dispute. In this regard, as dismissal as a fact is not in dispute in this case it is for the Respondent to establish that in the circumstances of this case the dismissal was fair and whether dismissal was a proportionate response to the allegation of misconduct.

The Complainant who was a customer assistant was dismissed for a “fundamental breach of trust” by the company on 07 July 2021. He was employed from 11 July 2019 until the 07 July 2021 with the company.

The Law:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

(4) 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 and qualifications of the employee for performing work of the kind that 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 to continue to work in the position

Section 6(6) of the Act states 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.

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, I note that Complainant confirmed at the hearing he signed a contract of employment which provides that his “employment may be terminated without either notice or payment in lieu of notice in the case of gross misconduct” which includes “theft of merchandise or property which belongs to the company.

The Respondent I also note submitted at the hearing that it has detailed written policies for the management of sales and write off procedures for products which are no longer fit for sale.

The Respondent also submitted at the hearing that it is the Store Manager who is responsible for the accurate recording of all items and reasons for write offs.

I also take note that write offs/stock loss is important and that is why the Respondent has rules in terms of the consumption of unpaid goods and also procedure for the write off of goods for staff.

While I note the Complainant disputed that in practice these rules were at times not adhered to and gave evidence of examples across other stores the Respondent franchise owned in which staff could consume goods prior to purchase or consume goods they considered damaged, I was not convinced by the evidence giving by the Complainant that this was the case also in the Gorey Store in which the incident took place.

On this point, I also note that Mr John Larkin who gave evidence on behalf of the Complainant submitted that while he had witnessed in other stores staff consuming goods intended to be written off without sanction he acknowledged at the hearing that that the consumption of goods that were intended to be written off was not a practice that he had ever observed occur in the Gorey store where the incident took place.

I do note also that on foot of the Store Manager Mr Dariusz Kacinskas confronting the Complainant in relation to the consumption of a Yakult drink, the Complainant admitted to consuming the product without prior purchase and made payment for the product later on in the day.

I also note that during the course of the investigation and during the hearing, the Complainant at all times was apologetic and accepting of the breach of company policy he made.

While I do note and give weight to the Respondent evidence that it was the Store Manager that has authority to write off goods and not the Complainant, I do also take into account that the goods had a low monetary value.

On account of this and following the completion of disciplinary investigation, the Complainant was dismissed for gross misconduct due to a fundamental breach of trust.

In relation to the Respondent upholding its decision to dismiss the Complainant and not administer an alternative sanction to dismiss, the Respondent submitted at the hearing that they needed to balance and weigh up the actions of the Complainant in line with its business model as a discount retailer.

The Respondent submitted that while it did consider the sanction of redeployment of the Complainant to a different store, it decided in the end to uphold the decision to dismiss.

The Respondent elaborated further on this point at the hearing that if they were to take a more lenient approach to incidents in which staff had consumed goods without prior purchase due to the nature of its business model and how it turns a profits as a discount retailer, this could have a knock on effect financially on store profits and targets therefore it was paramount that the consequences of such actions as set out in the Complainants contract were strictly adhered to. 

While I do take note that the Respondent is entitled to view any breach of policy in this area extremely seriously, I also note that there was little consideration of the Complainants immediate acceptance, apology, and purchase of the goods later in the day. I also note that 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.

While I do note the reasons provided by the Respondent at the hearing, I also am not satisfied that due consideration was given to the low monetary value of the consumed goods. For Gross misconduct to occur it must be something very serious indeed, perhaps criminal or quasi-criminal in nature.

While the Respondent has a duty to enforce a breach of any of its policies, I cannot find that a dismissal for gross misconduct is an appropriate and proportionate response in all the circumstances”.

Furthermore, in regard to the reasonableness and proportionality of the decision of an employer to dismiss, the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal and whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.

In the present case, I find that no reasonable employer would have dismissed the Complainant in such circumstances.

On close review of the nature of the misconduct, the low monetary value of the goods consumed and the Complainant’s early admission of guilt, it is clear that a lessor sanction would have served as an adequate deterrent for the purpose of preventing this type of misconduct from re-occurring in the future.

During the hearing, I also found the Complainants evidence credible that he acted without malice and that there was no ill-intention and little benefit on his part for consuming the product on the 28 December 2020. 

In these circumstances and having regard to the Complainant’s early and continuous admission of guilt and wrongdoing, it is apparent that a final written warning would have served the purpose of preventing this action from occurring in the future.

While I note the Respondent has a duty to enforce a breach of any of its policies, a final written warning is a significant punishment, one that is a single step removed from dismissal.

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.

Accordingly, I find that the Complainant was unfairly dismissed.

The appropriate redress is compensation.

In arriving at my decision, I must note also that the Complainant has undoubtedly contributed to his dismissal.

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal:

(1) 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:

…. (c) (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

(ii) 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 reference 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. 

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and 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 [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

In this regard I am conscious in calculating the level of compensation, that due consideration must be taken in regard to the efforts of the Complainant to mitigate his losses. On this note I find that these efforts do not meet the standard as set out by the Tribunal in Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.

In this regard the Complainant did not adduce any evidence of his efforts to mitigate loss at the hearing and when I afforded him with a further opportunity to do so, the Complainant submitted a screenshot of an email inbox of what appear to be job applications which I note all appear to be dated over one month post dismissal.

It is in this context also that I am not satisfied that that the Complainant has demonstrated adequate efforts to mitigate his loss.

There is an obligation to actively do so and based on the documentation the Complainant submitted on this point, I am not satisfied that the Complainant demonstrated adequate efforts to find employment and mitigate his loss.

On further note, in assessing the loss, I must also take account of the fact that the Complainant has undoubtedly contributed to his dismissal and that the dismissal was unfair because the sanction of dismissal does not come within the band of reasonable responses and is disproportionate more than anything else. 

Having taken the foregoing into account, I order that the Respondent pay the Complainant the compensatory sum of €4,000 which I find is just and equitable having regard to all the circumstances. 

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 evidence of his efforts to seek work following his dismissal that demonstrate adequate efforts to mitigate his loss.

I must note also that the Complainant has undoubtedly contributed to his dismissal due to his actions. In this regard, I order the Respondent to pay the Complainant the compensatory sum of €4,000 which I find is just and equitable having regard to all the circumstances.

Proportionality of sanction, reasonableness, disciplinary process, Mitigation of loss